# City of Philadelphia v. Workers' Compensation Appeal Board > Commonwealth Court of Pennsylvania · July 26, 2011 · 24 A.3d 1120 URL: https://www.frixlaw.com/law-library/cases/4964896 ## Case - **Full name:** CITY OF PHILADELPHIA v. WORKERS' COMPENSATION APPEAL BOARD (BUTLER) - **Court:** Commonwealth Court of Pennsylvania - **Decided:** July 26, 2011 - **Citations:** 24 A.3d 1120; 2011 Pa. Commw. LEXIS 340 - **Precedential status:** Published - **Opinion:** Dissent by Pellegrini - **Judges:** Brobson, Jubelirer, Leadbetter, Leavitt, McCullough, McGinley, Pellegrini - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4964896 ## Opinion text DISSENTING OPINION BY Judge PELLEGRINI. It has been held without cavil that all the facts contained in a Notice of Compensation Payable (NCP), absent a petition to modify the NCP as being inaccurate, are fixed. To seek a termination of benefits, an employer has to show that after the date the NCP is issued, the claimant has fully recovered. In this case, Employer’s medical expert testified that Claimant had fully recovered before the NCP was issued, which is at variance with the admitted facts contained in the NCP. Overlooking that Employer’s remedy for changing the date of acceptance of an injury is to file a petition to modify the NCP, the majority holds that an employer need not do so because it is not bound by the NCP’s date and can rely on any date prior to the date that the NCP was issued as long as there is some meaningful medical evidence presented. I respectfully dissent because the majority places something that was fixed with uncertainty, allows a collateral attack on the NCP, and is at variance with our Supreme Court’s decision in Beissel v. Workmen’s Compensation Appeal Board (John Wanamaker, Inc.), 502 Pa. 178 , 465 A.2d 969 (1983). In Beissel , the claimant slipped and fell at work in 1975. Almost one year later, she was hospitalized for low back and hip pain. Several months later, she had back surgery to relieve the pain. She applied for workers’ compensation benefits in July 1976, but an agreement was reached between the claimant and her employer’s insurance carrier, and her claim petition was withdrawn. In February 1977, the employer filed an NCP providing for payment of compensation to the claimant for a low back injury. Two years later in 1979, the employer filed a petition to terminate benefits alleging that the claimant’s present condition was unrelated to her original work injury. The referee granted a super-sedeas in response. Ultimately, the referee terminated benefits on June 22, 1979. On appeal, the Board and this Court affirmed. Our Supreme Court reversed and remanded, first setting forth the general standard that when an NCP exists, the petitioner has the burden of showing that the claimant’s disability has changed after the date of the NCP for purposes of having a termination petition granted. The Court noted that the employer presented no evidence of a change in the claimant’s condition after the filing of the NCP in 1977. “It is clear that appellee has sought to prove, not that appellant’s disability has terminated since 1977, but that appellant’s current disability, which has remained unchanged since March, 1976, was never related to appellant’s fall in May, 1975.” Beissel, 502 Pa. at 182 , 465 A.2d at 971 . The Court explained that it held that it was employer’s burden to prove that an employee’s disability had decreased after the filing of an NCP. The majority takes away from Beissel that it was an employer’s burden to prove that the claimant’s disability had decreased after the NCP was issued because claimant *1129 takes the statement “there must be a change in the claimant’s condition after the date of the NCP” out of context. In holding that Beissel does not apply, the majority relied on one comment in footnote 5 made by the City of Philadelphia (Employer) that it “should have never placed [the claimant] on compensation.” Beissel, 502 Pa. at 182 n. 5, 465 A.2d at 973 n. 5. 1 Quite frankly, I do not see how that comment has any import, whatsoever. The other reason given by the majority was that claimant withdrew her claim petition because Employer agreed to accept liability for back surgery and loss of earning power. What that reason omits is that claimant withdrew her claim petition because Employer issued the NCP at issue here. Moreover, that reading of our Supreme Court’s decision in Beissel ignores that it is how we stated the issue in our decision in Beissel v. Workmen’s Compensation Appeal Board, 67 Pa.Cmwlth. 13 , 445 A.2d 1332, 1333 (1982). We stated the sole issue as “petitioner argues that the employer did not meet its burden of establishing that a change in her disability had occurred after the compensation agreement had been entered into and that benefits, therefore, should not have been terminated.” We held, as the majority does here, that the date was not preclusive, which the Supreme Court reversed. The majority attempts to buttress its position that employers are not bound by the date of the NCP with makeweight arguments: that not to allow an earlier date elevates “form over substance” (The Rules of Evidence are not form over substance); that penalties are the remedy (I do not see what legal import the issue of what is the preclusive effect the NCP); or that “it will discourage employers to issue NCPs” (Employers are bound to either issue a Notice of Compensation Payable or Denial within the time prescribed or can issue a temporary NCP until it investigates. Employers may be discouraged but they have to follow the law.) An employer who believes that an NCP was improperly issued has the remedy of filing a petition to modify. Section 413(a) of the Workers’ Compensation Act, 2 which authorizes modification of a notice of compensation payable at any time upon proof of an inaccuracy, provides as follows: A workers’ compensation judge may, at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before such workers’ compensation judge, if it be proved that such notice of compensation payable or agreement was in any material respect incorrect. 77 P.S. § 771. (Emphasis added.) What the majority does is excuse an employer from filing such a petition where it believes the NCP is inaccurate and allows it to remedy its failure to properly present *1130 the proper evidence before the WCJ. 3 Simply put, an NCP establishes a date that recognizes the date of an injury. An employer is not allowed to offer a test or evidence that provides a date of injury that is inconsistent with the date of the NCP because any date before the date on the NCP is inconsistent with the date and the admission of the injury. Essentially, that would allow employers to collaterally attack them own NCPs which is not permitted. Accordingly, I respectfully dissent. . The full footnote reads: Counsel for appellee presented appellee’s position at the hearing as follows: [I]t is admitted that the defendant put this woman on compensation based on an opinion received from Dr. Love which upon reflection is equivocal and in our opinion we should have never placed her on compensation, but as indicated, and you will see it in Dr. Murray’s deposition, that is water over the dam. We’ve admitted that we didn’t file a petition to review this matter to set aside the original agreements. We have paid this woman and we are not seeking any compensation back from her, but what we are saying is that the condition that she has now is in no way related to this fall in 1975. . Act of June 2, 1915, P.L. 736, as amended. . All an employer needs to do to prove that a plaintiff has recovered after the date of the NCP is to offer a medical witness who states that the claimant has fully recovered from his injury on a date after the NCP was issued. See King v. Workmen’s Compensation Appeal Board (K-Mart Corp.), 549 Pa. 75 , 700 A.2d 431 (1997). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4964896. Public record. Not legal advice.