Work-Related Injury Apparently Fully Recovered Before it Began
Under the Pennsylvania Workers’ Compensation Act, once an injured worker establishes that he or she has suffered a work-related injury, benefits continue until something happens. That “something” may be the injured worker returning to gainful employment, a doctor finding the injured worker fully recovered, or another change in situation. But, a doctor could not possibly find the injured worker fully recovered before the date a workers’ compensation insurance carrier accepts a claim, right? According to the Commonwealth Court of PA, that suspicion would be wrong.
In Danielle Wolfe v. Martellas Pharmacy (Workers’ Compensation Appeal Board), the injured worker was employed as a cashier, when on June 10, 2017, a metal gate came down on top of her head. The workers’ comp insurance company issued a Notice of Temporary Compensation Payable (NTCP, also referred to as TNCP)) on June 28, 2017, accepting a “skull contusion.” Rather than revoking the NTCP, the insurance carrier issued a Medical-Only Notice of Compensation Payable (MO-NCP) on September 8, 2017. This stopped wage loss benefits (the Court also dealt with whether the insurer can dispense with the statutorily-required Notice Stopping Temporary Compensation (NSTC), finding that they can).
On August 10, 2017, the injured worker underwent a Defense Medical Examination (DME; humorously referred to by the Court as an Independent Medical Examination (IME) – nothing “independent” about these). When the DME physician opined that the injured worker had fully recovered, the insurance company filed a Petition for Termination.
In litigating this matter before the Workers’ Compensation Judge (WCJ), the Petition for Termination was denied. The WCJ agreed with the injured worker that, by law, there cannot be a date of recovery (8/10/17) which precedes the date the injury was accepted (9/8/17). So, even though the WCJ found the DME doctor credible, as a matter of law, the Petition for Termination cannot be granted.
On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the WCJ, finding (among other issues) that the Petition for Termination was not barred by the mere fact that it predated the acceptance of the injury. This point was affirmed by the Commonwealth Court of Pennsylvania.
The Court noted that there was “no dispute that Dr. Talbott credibly opined that Claimant fully recovered from the work injury as of August 10, 2017.” Indeed, the sole issue was whether the Termination was barred, as it came prior to the date the injury was “accepted.” The Court contended that unlike existing case law, here the workers’ comp insurance carrier was not “seeking to disavow an admitted or agreed to work injury or related disability.” Instead, claimed the Court, the insurer was simply trying to prove that the work-related injury had ceased as of August 10, 2017. Stated in another way, “Employer’s Termination Petition is not attempting to repudiate or disavow what was accepted or admitted in the MO-NCP.”
As attorneys who represent injured workers in PA, this is a tough one to accept on face value. The insurance carrier issued a document on September 8, 2017, accepting the injury (if only for medical benefits). How can that same insurance company then argue that the work injury had resolved a month before it was accepted? How is the acceptance of the injury not an acknowledgement that the injury continued to exist at least until after the date it was accepted? We find this decision baffling. For a system where the Courts like to talk about “humanitarian objectives” and “benefit to the injured worker,” decisions like this make those words ring rather hollow.