BEST PRACTICES: ANALYSIS OF PENNSYLVANIA’S TNCP
By Kevin L. Connors, Esquire
So, in the midst of all this compensation claims chaos, you have to ask yourself: do I feel lucky?
Of course, Dirty Harry, played by Clint Eastwood in the 1971 crime avenger epic, possessed sufficient firepower to answer that question with a big bang.
Opening up your claim portal, after two cups of Dunkin Donuts or Wawa coffee, you spot a new claim in your inbox, opening it with three potential choices available to you under Pennsylvania’s Workers’ Compensation Act, being:
- Denial, for one of six potential reasons, including:
- There is no indication/evidence that the Claimant sustained a work-related injury, to include any alleged aggravation of their pre-existing condition;
- The Claimant was not in the course and scope of employment when injured;
- The Claimant failed to give timely notice of the alleged work injury, requiring notification, first within 21 days, and then within 120 days in avoidance of total claim denial;
- The Claimant was not employed by the alleged Employer;
- The Claimant is not disabled by the alleged work injury, meaning that the injured Claimant is not losing any time from work, nor having any injury-related wage loss, such that it is a medical only claim; and,
- The claim remains under investigation, as does life throughout the universe.
- Acceptance of the claim, as being work-related and compensable, with the Employer/Insurer agreeing to pay workers’ compensation benefits, in whatever form required by the claim, to include temporary total disability benefits, temporary partial disability benefits, specific loss benefits, medical compensation benefits, or fatal claim benefits, thereby effectively entitling the injured Claimant to continue receiving workers’ compensation benefits absent one of the following occurring:
- The Claimant dies, and compensation benefits terminate by operation of both death and loss;
- The Claimant voluntarily returns to work in their pre-injury capacities, and there is no continuing wage loss post-return to work, such that the Claimant’s compensation benefits are suspended;
- The Claimant returns to work in a modified-duty capacity, with some reduction in return-to-work wages, such that the Claimant’s compensation benefits are modified, and temporary partial disability benefits are paid, subject to the 500 week limitation;
- The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;
- The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;
- The Claimant is deported by virtue of not being able to prove legal immigration status;
- The claim is settled under a Compromise and Release Agreement, perfecting some type of compromise of the indemnity and medical compensation benefits liability associated with the claim; and,
- The Claimant’s compensation benefits are terminated, modified, or suspended by order of a Workers’ Compensation Judge, with the Employer/Insurer carrying the burden of proving the entitlement to a change in the Claimant’s benefit entitlement status.
- The final option being to pay temporary compensation benefits, whether for indemnity or medical compensation benefits, for 90 days from the date of injury, or the first date of payment of temporary compensation benefits, the caveat to which is that temporary compensation benefits can only be “stopped” with the time-sensitive issuance of two State forms, one being a Notice Stopping Temporary Compensation, notifying the injured Claimant of the stoppage of the temporary compensation benefits, AND, not or, a Notice of Compensation Denial, notifying the injured Claimant that the workers’ compensation claim is being denied, requiring the Claimant to be notified of the grounds for denial.
So, which door are you going to pick?
Keep in mind that each door has risks and rewards.
Sometimes, it might depend upon what the meaning of the word “is” is!
Obviously, three other factors also bear witness to the resolve to lay up, or to go for the green, being claim intelligence, claim intuition, accompanied by the best claim investigation possible, recognizing that the claim clock is always going tick-tock.
Back to the risk versus rewards issue, an analysis often challenged by a cookie cutter claims thought process, that all claims fit in one claims hole, when claims, like you and I, are often strangely unique, as much as we might like to say that every reported claim is evidence of claim fraud, a toxic rejection of humanism, as well as being evidence of conspiratorial arrogance.
Back to TNCP’s and temporary compensation benefits, which have been a fixture in Pennsylvania’s Workers’ Compensation landscape since 1993, with Act 44 empowering temporary compensation benefit payments for 6 weeks, and Act 57, enacted in 1996, expanding the territorial range of temporary compensation benefits to 90 days, equaling close to 12 weeks of compensation benefits.
Depending upon where you were seated in the Workers’ Compensation Courtroom, be it Bench, Claimant’s counsel, or defense counsel, very different perspectives exist with respect to the utilization of TNCPs and temporary compensation benefits.
The perception fueled by both fractional frown and salacious smirks, is that the Workers’ Compensation Bench, with consideration to internal Bureau directives, clothed in clandestine confidentiality for all too apparent public policy considerations, is one of subtle and deliberately disdainful reluctance to embrace what is thought to be a “kick the can” reaction to shouldering responsibility for a decisive claim decision, be it the denial or acceptance.
And, yes, the Bench has grown accustomed to their use although the Bench does not respect their blanket use for all lost time workers’ compensation claims.
Such a blanket utilization is regarded by the Bench, gently prodded by the Bureau, as being an abuse of claims practice, when the TNCP, in an otherwise compensable claim, is yanked, to force the Claimant to file a Claim Petition, to litigate compensability issues, while living on Welfare.
So, if the TNCP should not be used with every single claim, and that is the message, when should it be used, and when should it not be used?
Absolutely, use it, with our blessing, with minor injury claims, requiring limited medical treatment, and no lost time, although caution militates against allowing the TNCP, in these situations, to “convert” to a Notice of Compensation Payable, resulting in the Employer/Insurer shouldering liability for whatever the compensation claim might turn into, be it lost time, or be it extended medical treatment.
And no less true, it is a very useful stopgap in workers’ compensation claims that require a claims investigation longer than 21 days, and that might involve other very critical factors, such as an extensive prior claims history, an extensive prior medical history, necessitating a longer tail for investigation of the claim, with stoppage of temporary compensation benefits, typically resulting in the filing of a Claim Petition, in defense of which the Employer/Insurer becomes armed with subpoena power, the great equalizer of both memory and history.
While the TNCP is a useful mechanism for managing early intervention of more marginal workers’ compensation claims, it should not be considered to be the “be all and end all” form, used indiscriminately with every workers’ compensation claim that ends up in your inbox.
Discretionary utilization is regarded as evidence of claims intelligence and benevolent intuition.
Situations in which the claim decision to use the TNCP as the claim management form would be regarded as questionable, would include:
- A death claim;
- A claim involving significant trauma, where compensability is not questioned;
- An injury requiring immediate surgical intervention, where compensability is not questioned;
- An injury that does not result in lost time, but does result in marginal wage loss, as the TNCP form itself does not provide a mechanism for calculating and recording the payment of temporary partial disability benefits, with the possibility of there being claim form confusion when wages are restored to pre-injury capacity exists; and,
- Claims that might involve alternating/fluctuating wage loss, as, again, the form was not designed to compensate for those situations.
What about specific loss claims?
Well, the difficulty with specific loss claims is that, where compensability is not questioned, typically a specific loss claim will involve specific loss benefits that will exceed the benefit allowance under the TNCP, negating the effectiveness of the TNCP with specific loss claims.
Do we like the form?
Absolutely, it is just that we would not wear it to work every day.
And, no, every claim should not be managed through the issuance of a TNCP, although claims should be judiciously evaluated for clear and concise decision-making concerning form utilization.
This is true with every form evaluated at claim initiation, including the TNCP, the NCP, and the NCD.
What other dangers exist with respect to utilizing the TNCP?
Well, one danger is the failure to stop the TNCP, and accompanying benefits, allowing the TNCP to convert to an NCP, when questions regarding compensability still exist, as well as questions with regard to ongoing disability.
If the TNCP is to be utilized, it requires that a second decision be made, for claims management purposes, prior to the TNCP converting, with the TNCP either being stopped, or the claim accepted, with issuance of an NCP.
Yes, allowing the TNCP to “convert” to an NCP results in claim acceptance, with a “conversion” being indeterminate as to whether the conversion was accidental or deliberate.
Why should you care?
Perhaps it is just the compulsive impulse to be deliberate and decisive in the management of the claim.
True, this analysis might be counter-intuitive, and, perhaps, unpopular in certain claim cubicles, intending no delusional disrespect, as its begrudging bias is based upon the impracticability of observation and evidence.
Forgive our naïve and formulaic bewilderment.
Trust us, we just get it! It is trust well spent!
Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.
With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.