Disability is defined as "the loss of earning power attributable to the work-related injury."
How later courts described this case
- Disability is defined as "the loss of earning power attributable to the work-related injury."
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Valley Stairs and Rails, :
Petitioner :
: No. 1100 C.D. 2017
v. :
: Argued: April 11, 2018
Workers’ Compensation Appeal :
Board (Parsons), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE McCULLOUGH FILED: January 24, 2019
By permission, Valley Stairs and Rails (Employer) petitions for review
of the May 16, 2017 order of the Workers’ Compensation Appeal Board (Board),
which reversed the order of a Workers’ Compensation Judge (WCJ) denying the
penalty petition of Gary Parsons (Claimant). The issue we address is on what date
did Claimant’s workers’ compensation benefits become payable under section
406.1(d)(6) of the Workers’ Compensation Act (Act).1
1
Act of June 2, 1915, P.L. 736, as amended, added by the Act of February 8, 1972, P.L. 25,
77 P.S. §717.1(d)(6). This section states:
(Footnote continued on next page…)
Facts and Procedural History
Claimant alleged that he sustained a low back strain while working for
Employer on March 27, 2015, and was transported to the hospital by ambulance.
Claimant did not return to work that day or any day thereafter. Claimant received full
pay from Employer on the date of the injury; however, his final pay stub stated that
Claimant was paid seven hours of “COMP TM” at his regular pay rate. (Reproduced
Record (R.R.) at 39a.) On April 13, 2015, Employer sent a notice of temporary
compensation payable (NTCP), which stated that the injury, a low back strain,
occurred on March 27, 2015, and noted that the 90-day period under section
406.1(d)(6) of the Act ran from March 30, 2015, through June 27, 2015. (Finding of
Fact (F.F.) No. 1; R.R. at 32a.)
On June 27, 2015, Employer filed a notice of workers’ compensation
denial, alleging that Claimant failed to give proper notice of his injury and had not
suffered any wage loss. On June 28, 2015, Employer filed a notice stopping
temporary compensation payable and a notice of worker’s compensation denial.2 The
following day, the Bureau of Workers’ Compensation (Bureau) issued a notice of
conversion of temporary compensation payable pursuant to section 406.1(d)(6) of the
(continued…)
If the employer does not file a notice [controverting a claimant’s
claim] within the ninety-day period during which temporary
compensation is paid or payable, the employer shall be deemed to
have admitted liability and the notice of temporary compensation
payable shall be converted to a notice of compensation payable.
77 P.S. §717.1(d)(6).
2
As the Board noted in its opinion, although these documents listed different dates, “both
were deemed filed on June 28, 2015, the date [o]n which they were actually electronically received
by the Bureau.” (Board’s op. at 5 n.4.)
2
Act, effective June 29, 2015. On July 13, 2015, Claimant filed a penalty petition,
alleging that Employer violated the Act by stopping payment of compensation
benefits after the NTCP had converted to a notice of compensation payable (NCP).
(R.R. at 4a, 36a, 37a; F.F. Nos. 3, 4.)
At a hearing before a WCJ, Claimant testified that, at some point on the
morning of Friday, March 27, 2015, he injured his lower back while sliding a stair
across the floor. (F.F. No. 5.) Claimant stated that he went to the hospital by
ambulance and did not return to work after the injury. (Id.; R.R. at 14a-15a.) That
same day, Claimant indicated that he received paperwork stating he could not return
to work, which he presented to Employer by handing it to a coworker, who took it
into the building and returned with Claimant’s lunch box.3 (R.R. at 14a-16a.) At a
subsequent hearing, Claimant submitted his final pay stub, which reflected payment
for 64.85 “Regular” hours and 7 hours of “COMP TM.” (R.R. at 39a.) Additionally,
Claimant’s first indemnity benefits check was submitted, which showed the first
payment covered the period from Monday, March 30, 2015, through Sunday, April
12, 2016. (F.F. No. 7; R.R. at 40a.)
In her opinion, the WCJ noted that for purposes of the Act, disability is
defined as wage loss. See Landmark Constructors, Inc. v. Workers’ Compensation
Appeal Board (Costello), 747 A.2d 850, 854 (Pa. 2000) (Disability is defined as “the
loss of earning power attributable to the work-related injury.”) Because Claimant
received his full pay for the date of injury on Friday, March 27, 2015, the WCJ
determined that Claimant’s disability commenced on Monday, March 30, 2015, the
day he began receiving indemnity benefits. Thus, the WCJ found that Employer’s
June 29, 2015 notice stopping temporary compensation was filed on the 90th day of
3
This paperwork does not appear in the record of this case.
3
Claimant’s disability4 and, as such, the notice of conversion was improperly issued by
the Bureau and thus void. Based upon those findings, the WCJ concluded that
Claimant failed to prove a violation of the Act and denied Claimant’s penalty
petition. (F.F. Nos. 4, 6-11; Conclusion of Law at 2.)
Claimant appealed to the Board, asserting that the WCJ erred in finding
that the first date of disability was March 30, 2015, since his injury rendered him
unable to return to work on March 27, 2015. Claimant further argued that the WCJ
erred in finding that Employer timely issued the notice stopping temporary
compensation, since it was issued on the 93rd day of disability and, accordingly, the
Bureau properly issued the notice of conversion.
The Board reversed and, citing this Court’s holding in Galizia v.
Workers’ Compensation Appeal Board (Woodloch Pines, Inc.), 933 A.2d 146 (Pa.
Cmwlth. 2007), stated that “the date the 90[-]day period begins on is [sic] the first
date that Claimant was entitled to receive disability benefits as a result of the work
injury.” (Board’s op. at 4.) As such, the Board held, “While the WCJ found that
Claimant received his full pay from [Employer] for March 27, 2015, the fact
[Employer] may have paid Claimant his full wages in lieu of workers’ compensation
benefits for that day is irrelevant, as he clearly sustained a loss of earning power and
did not complete his work day.” Id. at 6. The Board thus determined that Claimant
was eligible for benefits as of March 27, 2015, and the 90-day period ended on June
25, 2015. The Board further found that the NTCP converted to an NCP by operation
of law, since Employer did not issue a notice stopping temporary compensation
4
As the Board notes in its opinion, the first day of disability is excluded from the
computation of time, as well as the last day of the 90-day period, June 28, 2015, being that it fell on
a Sunday. 1 Pa.C.S. §1908. Thus, the last day of the 90-day period under this calculation, and the
final day that Employer could contest Claimant’s claim without being deemed to have admitted
liability, was June 29, 2015.
4
payable or a denial until June 28, 2015. Consequently, the Board reversed the WCJ’s
decision and remanded for a determination of the appropriate penalty amount, if any,
that should be awarded based upon Employer’s violation of the Act.
Employer filed an emergency motion for appellate certification of the
Board’s order, as well as a request for an immediate stay of the order, which the
Board denied by order dated July 13, 2017. The Board also refused to certify its
order under 42 Pa.C.S. §702(b) (related to interlocutory appeals by permission). This
Court granted Employer’s petition for review filed pursuant to the note to Pa. R.A.P.
1311.5
Discussion
We first note the relevant provisions of the Act, which are sections
306(a)(2) and 406.1(d). Section 306(a)(2) states, “Nothing in this act shall require
payment of total disability compensation benefits under this clause for any period
during which the employe is employed or receiving wages.” 77 P.S. §511(2).
Section 406.1 of the Act states,
(a) The employer and insurer shall promptly investigate
each injury reported or known to the employer and shall
5
The official note to Pa. R.A.P. 1311 provides:
Where the administrative agency or lower court refuses to amend its
order to include the prescribed statement, a petition for review under
Chapter 15 of the unappealable order of denial is the proper mode of
determining whether the case is so egregious as to justify prerogative
appellate correction of the exercise of discretion by the lower tribunal.
If the petition for review is granted in such a case, the effect . . . is the
same as if a petition for permission to appeal had been filed and
granted, and no separate petition for permission to appeal need be
filed.
5
proceed promptly to commence the payment of
compensation due either pursuant to an agreement upon the
compensation payable or a notice of compensation payable
as provided in section 407 or pursuant to a notice of
temporary compensation payable as set forth in subsection
(d), on forms prescribed by the department and furnished by
the insurer. . . .
...
(d)
(1) In any instance where an employer is
uncertain whether a claim is compensable
under this act or is uncertain of the extent of its
liability under this act, the employer may
initiate compensation payments without
prejudice and without admitting liability
pursuant to a notice of temporary
compensation payable as prescribed by the
department.
...
(4) Payments of temporary compensation may
continue until such time as the employer
decides to controvert the claim.
(5)(i) If the employer ceases making payments
pursuant to a notice of temporary
compensation payable, a notice in the form
prescribed by the department shall be sent to
the claimant and a copy filed with the
department, but in no event shall this notice be
sent or filed later than five (5) days after the
last payment.
(ii) This notice shall advise the claimant, that if
the employer is ceasing payment of temporary
compensation, that the payment of temporary
compensation was not an admission of liability
of the employer with respect to the injury
subject to the notice of temporary compensation
payable, and the employe must file a claim to
establish the liability of the employer.
6
(iii) If the employer ceases making payments
pursuant to a notice of temporary compensation
payable, after complying with this clause, the
employer and employe retain all the rights,
defenses and obligations with regard to the
claim subject to the notice of temporary
compensation payable, and the payment of
temporary compensation may not be used to
support a claim for compensation.
(iv) Payment of temporary compensation shall
be considered compensation for purposes of
tolling the statute of limitations under section
315.
(6) If the employer does not file a notice under
paragraph (5) within the ninety-day period
during which temporary compensation is paid or
payable, the employer shall be deemed to have
admitted liability and the notice of temporary
compensation payable shall be converted to a
notice of compensation payable.
77 P.S. §717.1 (emphasis added).
On appeal,6 Employer argues that the first date of disability is the first
date that a claimant is out of work for which compensation is payable. Citing section
306(a)(2) of the Act, Employer contends that Claimant was prevented from receiving
payment of total disability benefits for the date of injury, since Claimant received his
full pay for that day. Employer acknowledges that Claimant’s final pay statement
indicates that Claimant worked seven hours of “COMP TM”; however, Employer
emphasizes that Claimant was paid at the same rate for all hours—specifically
6
Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow
Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa.
Cmwlth. 2006).
7
$14.00. Thus, Employer asserts that because Claimant earned his usual wages on
March 27, 2015, the date of injury, he had no loss of earning power and, accordingly,
no “disability” as of that date. For the purposes of receiving workers’ compensation
benefits, “‘disability’ means loss of earning power, and thus although a claimant may
suffer a work-related physical disability, it is only if that physical disability occasions
a loss of earnings that a worker will be ‘disabled’ under the meaning of the Act and
will be entitled to receive compensation.” Bissland v. Workmen’s Compensation
Appeal Board (Boyertown Auto Body Works), 638 A.2d 493, 495 (Pa. Cmwlth. 1994).
In response, Claimant directs the Court to section 406.1(d) of the Act,
which he asserts “clearly directs that the 90 days in which to timely stop an NTCP
runs from the date that compensation was ‘payable.’” (Claimant’s Brief at 5.)
Claimant states that because he was treated for his work injury at the hospital on
March 27, 2015, his compensation benefits were not only payable, but paid, because
Employer paid for his medical treatment that day according to the NTCP it issued.
With regard to his pay on the date of injury, Claimant suggests that the WCJ erred in
finding that Claimant received his full pay on the date of injury because the pay stub
denotes that time as “COMP TM.” Claimant asserts that, even if that pay were to be
considered full pay and resulted in no loss of wages, “it would only serve to act as a
de facto acceptance of his [injury] since the Employer very clearly continued to pay
him after he became disabled and prior to the filing of the April 13, 2015 NTCP.”
(Claimant’s Brief at 10.)
In its reply brief, Employer responds by arguing that the mere fact that it
paid for Claimant’s medical treatment on the date of injury does not mean that it paid
Claimant compensation benefits. Employer asserts that “compensation,” which is not
defined in the Act, includes only wage loss benefits. In support of this contention,
Employer relies upon Gereyes v. Workers’ Compensation Appeal Board (New
8
Knight, Inc.), 793 A.2d 1017 (Pa. Cmwlth. 2002), and Thomas Lindstrom Co., Inc. v.
Workers’ Compensation Appeal Board (Braun), 992 A.2d 961 (Pa. Cmwlth. 2010).
In Gereyes, a claimant was receiving benefits per an NTCP issued May 4, 1999, and
on June 28, 1999, the employer issued the final compensation check, which covered
the period from June 22 to June 29. On June 29, 1999, the employer issued a notice
stopping temporary compensation payable and a denial. This Court ruled that the
employer had complied with sections 406.1(d)(5) and (6) of the Act and that the
NTCP had not converted into an NCP. Id. at 1021. Similarly, in Thomas Lindstrom
Co., the Court held that a notice stopping temporary compensation was issued in a
timely manner because the last day of the pay period, and not the date of payment,
was the relevant date for determining the timeliness of the employer’s notice stopping
temporary compensation payable to the claimant. 992 A.2d at 969.
Employer asserts “a plain reading of Section 406.1(d) of the Act, as well
as the applicable case law, demonstrates that the 90-day period begins on the first day
when indemnity benefits are paid or payable, and not the first date when medical
benefits are paid or payable.” (Employer’s Reply Brief at 3.) Thus, Employer
contends that the WCJ properly determined that Monday, March 30, 2015, the day
Claimant began receiving indemnity benefits, was the date of disability and that,
accordingly, Claimant failed to prove a violation of the Act.
In Galizia, the case the Board relied upon in reversing the WCJ, the
claimant was injured on November 30, 2002, but continued working until January 6,
2003. 933 A.2d at 147. The employer issued an NTCP on February 6, 2003, which
commenced payment retroactively on January 31, 2003, and noted that medical
documentation supported a disability as of January 31, 2003. Id. In March 2003, the
employer’s insurance company issued the claimant a check to cover the period from
January 6 to January 30, 2003. Id. at 149. On April 28, 2003, the employer issued a
9
notice stopping temporary compensation payable and a denial, to which the claimant
responded with a petition for penalties and a petition to reinstate benefits. Id. at 147.
The Board held that the triggering date for the 90-day period was January 31, 2003,
the date listed in the NTCP. Upon review, our Court reversed and held that January
6, 2003, the date that the claimant stopped working and thus his first date of
disability, was the applicable date for the commencement of the 90-day period. We
reasoned, “[T]he words ‘paid’ and ‘payable’ in Section 406.1(d)(6) of the Act, 77
P.S. §717.1(d)(6), plainly, clearly, and unambiguously refer to [the c]laimant’s
first day of disability as the triggering date of the ninety-day period for
temporary compensation benefits pursuant to an NTCP.” Id. at 152 (emphasis
added). We further stated,
Undeniably, the first day for which [c]laimant received
compensation was January 6, 2003, his first day of
disability. While he did not actually receive payment on
that date, he was entitled to receive benefits as of that date
and benefits were “payable” and paid to him commencing
that day. Under the Act, [e]mployer could pay [c]laimant
up to ninety days of temporary compensation while it
investigated the circumstances of Claimant’s disability and
injury.
Id. at 152 (emphasis added).
Hence, under Galizia, this Court clarified that the triggering date for the
90 days is the date when a claimant becomes entitled to compensation, irrespective of
whether he has received benefits for that day. Critically, however, in this case,
Claimant received his full wages on the date he became disabled, i.e., on the day he
sustained a loss of earning power due to a work injury. Although Galizia clarifies
when the 90-day period referenced in section 406.1 of the Act begins, neither the Act,
nor our case law, address how, or if, the calculation of time is affected when an
employer pays a claimant his full wages on the first day of disability. Section
10
121.15(a) of the Bureau’s Regulations (Regulations), however, sheds light on this
ambiguity:
In computing the time when the disability becomes
compensable, the day the injured employee is unable to
continue at work by reason of the injury shall be counted as
the first day of disability in the 7 day waiting period.[7] If
the injured employee is paid full wages for the day, shift or
turn on which the injury occurred, the following day shall
be counted as the first day of disability. In determining the
waiting period or time during which compensation is
payable, each calendar day, including Sundays and
holidays, shall be counted. In determining the period of
disability, seven should be used as a divisor to determine
the number, and any part, of the weeks.
34 Pa. Code §121.15(a) (emphasis added).
Interpretation of a statute by an administrative agency, here, the Bureau,
by means of its regulations is entitled to great weight unless the regulation is clearly
erroneous or inconsistent with the statute under which it was promulgated. See
Garner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 888
A.2d 758, 767 (Pa. 2005). Although there is no specific regulation pertaining to
computation of the 90-day period, because calculation of the first date of disability
must be done consistently, we defer to the Bureau’s interpretation expressed in
section 121.15 that payment is to be made on the date the claimant is unable to
continue work by reason of injury unless he is paid full pages for the day. Hence, we
hold that disability is considered to commence on the day following the injury when a
claimant is paid his full wages for the day, shift, or turn on which the injury occurred.
On application of section 121.15 of the Regulations here, it is clear that
Claimant became entitled to receive benefits on the first day he suffered a loss of
7
Under section 306(e) of the Act, no compensation shall be allowed for the first seven days
after disability begins unless the disability lasts 14 days or more. 77 P.S. §514.
11
earning power, which was on the morning of March 27, 2015, when Claimant was
injured, transported to the hospital, and did not return to work. This was the day that
Claimant was “unable to continue at work by reason of the injury.” 34 Pa. Code
§121.15(a). Thus, under Galizia, the triggering date for the 90-day period would
have been March 27, 2015, since that was the date that Claimant became entitled to
receive benefits.
Crucially, however, regardless of the way that Employer classified the
monetary payment on the pay stub, we must apply the qualifying language which
appears in the Regulations regarding payment of wages. Here, Claimant received his
full wages on March 27 and, as such, section 121.15(a) of the Regulations directs that
the first date of disability—and thus the first day of the 90-day period—began the
following day. Since Claimant did not work on weekends, “the following day” under
section 121.15(a) was Monday, March 30, 2015, as listed in NTCP. 34 Pa. Code
§121.15(a). Thus, the 90-day period began on Monday, March 30, 2015, and ended
on June 29, 2015. Because Employer filed its notice stopping temporary
compensation payable and denial on June 28, 2015, both were timely issued and the
notice of conversion issued by the Bureau was void.
Notably, in Galizia, we addressed the issue of the first date of disability
as it pertained to the facts of that case but, because there was no issue presented as to
that claimant receiving payment on his first date of disability, we had no occasion to
address application of the Regulations. In the present matter, we apply Galizia’s
holding but, as this case presents a matter of first impression, we additionally
consider the implications of 121.15(a) of the Regulations as it pertains to the specific
facts of this case.
Having determined that Employer timely contested liability for
Claimant’s injury, we need not address Employer’s remaining arguments.
12
Conclusion
In conclusion, although the Act provides that compensation would have
been payable on the date of injury because that was the day that Claimant became
entitled to wage loss benefits by virtue of his inability to earn wages for the
remainder of that day, see Galizia, 933 A.2d at 152, because Employer paid Claimant
his full wages for the day, the 90-day period began the following day, Monday,
March 30, 2015, and ended on June 29, 2015, see 34 Pa. Code §121.15(a). Since
Employer contested liability within that 90-day period, the Board erred in holding
that the NTCP converted to a NCP.
Accordingly, this Court reverses the Board’s order.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Simpson concurs in result only.
Judge Fizzano Cannon did not participate in this decision.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Valley Stairs and Rails, :
Petitioner :
: No. 1100 C.D. 2017
v. :
:
Workers’ Compensation Appeal :
Board (Parsons), :
Respondent :
ORDER
AND NOW, this 24th day of January, 2019, the order of the Workers’
Compensation Appeal Board is hereby reversed.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Valley Stairs and Rails, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal Board :
(Parsons), : No. 1100 C.D. 2017
Respondent : Argued: April 11, 2018
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
CONCURRING OPINION BY
JUDGE COVEY FILED: January 24, 2019
I agree with the Majority’s conclusion that “[s]ince [Valley Stairs and
Rails (]Employer[)] contested liability within th[e statutorily-required] 90-day period,
the [Workers’ Compensation (WC) Appeal Board (]Board[)] erred in holding that the
[notice of temporary compensation payable (]NTCP[)] converted to a [notice of
compensation payable (]NCP[)].” Majority Op. at 13. I also agree that
“[a]ccordingly, this Court [should] reverse[] the Board’s order.” Id. However, I
disagree that “under Galizia [v. Workers’ Compensation Appeal Board (Woodloch
Pines, Inc.), 933 A.2d 146 (Pa. Cmwlth. 2007)], this Court clarified that the
triggering date for the 90 days is the date when a claimant becomes entitled to
compensation, irrespective of whether he has received benefits for that day.”
Majority Op. at 11 (emphasis added).
The issue before the Workers’ Compensation Judge (WCJ) was whether
penalties should be assessed against Employer for stopping payment of Gary Parsons’
[Claimant] WC benefits after its NTCP converted to an NCP. The WCJ determined
that because the temporary compensation payment and the NTCP established that
Claimant’s disability commenced on March 30, 2015, Employer timely filed its
notice of compensation denial (NCD) and notice stopping temporary compensation
payable (NSTCP). The Board reversed the WCJ’s decision concluding that the date
of injury was the date of disability since Claimant suffered a loss of earning power. I
would reverse the Board’s order because Galizia, the case relied upon by the Board
and the Majority, supports the WCJ’s decision.
Claimant alleged that he was injured while working on March 27, 2015.
On April 10, 2015, Employer’s WC insurer issued Claimant a check for the WC
benefit period of March 30, 2015 through April 12, 2015. See Certified Record
(C.R.) at item 17. On April 13, 2015, Employer issued an NTCP stating the
“[n]inety-day period begins on 3/30/2015 and ends on 6/27/2015.” C.R. at item 15.
On June 27, 2015, Employer filed its NCD.1 See C.R. at item 15. On June 29, 2015,
Employer issued its NSTCP.2 See C.R. at item 15. On June 29, 2015, the WC
Bureau (Bureau) issued a Notice of Conversion of Temporary Compensation Payable
to Compensation Payable, stating: “The 90-day period has expired on this claim and
the Employer[] has not filed a [NSTCP]. Therefore, the Employer[] has accepted
liability for your claim.” See C.R. at item 15.
1
The Board pointed out that although the NCD was dated June 27, 2015, it was “deemed
filed on June 28, 2015, the date [o]n which [it was] electronically received by the [WC] Bureau.”
Board Dec. at 5 n.4. Further, Employer’s insurance claims adjuster Melissa Tschopp (Tschopp)
represented in an affidavit that she uploaded the NCD on June 28, 2015. See C.R. at item 20.
2
The Board noted that although the NSTCP was dated June 29, 2015, it was “deemed filed
on June 28, 2015, the date [o]n which [it was] electronically received by the [WC] Bureau.” Board
Dec. at 5 n.4. Further, Tschopp represented in an affidavit that although the NSTCP shows it was
filed on June 29, 2015, she uploaded it on June 28, 2015. See C.R. at item 20.
AEC - 2
Section 406.1 of the Workers’ Compensation Act (Act)3 provides:
(a) The employer and insurer shall promptly investigate
each injury reported or known to the employer and shall
proceed promptly to commence the payment of
compensation due either pursuant to an agreement upon the
compensation payable or a[n] [NCP] as provided in
[S]ection 407 [of the Act] or pursuant to a[n] [NTCP] as set
forth in subsection (d), on forms prescribed by the
[D]epartment [of Labor and Industry (Department)] and
furnished by the insurer. . . .
....
(d)(1) In any instance where an employer is uncertain
whether a claim is compensable under this [A]ct or is
uncertain of the extent of its liability under this [A]ct, the
employer may initiate compensation payments without
prejudice and without admitting liability pursuant to a[n]
[NTCP] as prescribed by the [D]epartment.
(2) The [NTCP] shall be sent to the claimant and a copy
filed with the [D]epartment and shall notify the claimant
that the payment of temporary compensation is not an
admission of liability of the employer with respect to the
injury which is the subject of the [NTCP]. The
[D]epartment shall, upon receipt of a[n] [NTCP], send a
notice to the claimant informing the claimant that:
....
(ii) the payment of temporary compensation entitles the
claimant to a maximum of ninety (90) days of
compensation; and
....
(5)(i) If the employer ceases making payments pursuant to
a[n] [NTCP], a notice in the form prescribed by the
[D]epartment shall be sent to the claimant and a copy filed
with the [D]epartment, but in no event shall this notice be
sent or filed later than five (5) days after the last payment.
3
Act of June 2, 1915, P.L. 736, as amended, added by the Act of February 8, 1972, P.L. 25,
77 P.S. § 717.1.
AEC - 3
....
(6) If the employer does not file a notice under
paragraph (5) within the ninety-day period during
which temporary compensation is paid or payable, the
employer shall be deemed to have admitted liability and
the [NTCP] shall be converted to a[n] [NCP].
77 P.S. § 717.1 (bold and underline emphasis added).
In Galizia, this Court held:
[T]he Act is unambiguous. Section 406.1(d)(2)(ii) of the
Act, 77 P.S. § 717.1(d)(2)(ii), is key. It simply provides
that a claimant is entitled to a maximum of ninety days of
compensation. Section 406.1(d)(6) of the Act, 77 P.S. §
717.1(d)(6), provides that if the employer does not file a[n]
[NSTCP] within the ninety[-]day period for which
temporary compensation is paid or payable, the
employer shall be deemed to have admitted liability and the
[NTCP] shall be converted to a[n] [NCP].
Galizia, 933 A.2d at 152 (emphasis added). Accordingly, the Galizia Court ruled that
“the first day for which [the c]laimant received compensation was . . . his first day of
disability.” Id.
Respectfully, the Majority misconstrues the Galizia Court’s holding by
ignoring the above-quoted reference to “the first day for which [the c]laimant
received compensation.” Id. Significant in Galizia are the remand hearing’s
stipulated facts. Specifically,
[t]he parties presented a stipulation of facts which stated
that [the e]mployer’s insurer, NorGuard, issued the first
installment check dated February 10, 2003[] to cover the
period from January 31, 2003[] through February 13, 2003,
and that NorGuard issued a check dated March 19,
2003[] to cover the period from January 6, 2003[]
through January 30, 2003. NorGuard also issued checks
to cover the period from February 14, 2003[] through April
28, 2003.
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Id. at 148 (emphasis added). Thus, at the time the first check was paid, the second
check which covered the earlier time period was still payable. However, after the
second check was issued, that compensation was also paid. Consequently, although
“[p]ursuant to the NTCP, payments commenced January 31, 2003 [and] . . .
‘[m]edical documentation supports disability effective 1/31/03[,]’” id. at 147, this
Court held that the disability began on January 6, 2003, because that was the first
date the claimant received compensation therefor.
In the instant case, because Claimant’s first day out of work and
temporary compensation was paid March 30, 2015, that is the date of Claimant’s
disability for purposes of Section 406.1 of the Act. Accordingly, the Board erred by
reversing the WCJ’s decision.
__________________________
ANNE E. COVEY, Judge
Judge Simpson joins in this concurring opinion.
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