DATING A NTCP IN PENNSYLVANIA
By:Kevin L. Connors, Esq.
First, for those not living and administering workers’ compensation claims in Pennsylvania, a Notice of Temporary Compensation Payable (NTCP) is what we regard, under our Pennsylvania Workers’ Compensation Act, and the Bureau of Workers’ Compensation’s Regulations, as an administrative and procedural device legislated by the General Assembly under reforms enacted in 1996, under Act 57, with the form being increasing utilized by employers, insurers, and third-party administrators, to initially administrate workers’ compensation claims, through an initial ninety (90) day post-injury phase, during which the employer and/or insurer has an election to make, being whether the workers’ compensation is formally accepted, with the issuance of what we call our Notice of Compensation Payable, essentially a compensation judgment against the employer and insurer, entitling the injured employee to continue to receive workers’ compensation benefits in the form of both indemnity compensation benefits, for wage loss, as well as medical compensation benefits, for medical treatment related to accepted work injuries, while the NTCP has increasingly been favored by employers and insurers for utilization to postpone formal acceptance of the workers’ compensation claim as being compensable and work-related, until the employer and insurer can complete its investigation beyond the initial twenty-one (21) day period that the Act had previously required employers/insurers to engage in their initial investigation, to determine whether the claim would be accepted or denied, acceptance requiring issuance of the Notice of Compensation Payable, denial requiring the issuance of Notice of Compensation Denial.
In 1996, a new administrative tool was added to our compensation toolbox, being the Notice of Temporary Compensation Payable (NTCP), which initially had a shorter lifespan after enactment in 1996, but now has a lifespan of ninety (90) days from date of disability to end date, upon with the NTCP expires, and either converts, or is withdrawn by the employer/insurer, in which case the employer/insurer is allowed under our Act, to deny the workers’ compensation claim as being compensable and work-related, and also authorizes the employer and insurer to stop the payment of temporary compensation benefits.
The key to the NTCP is that it was not intended to constitute a formal acceptance of the workers’ compensation claim as compensable and work-related, to allow the employer and insurer to have greater flexibility in terms of their initial investigation into the compensability of a claim, as well as to allow the employer and insurer to investigate the factual and medical issues that drive compensability issues, classically being the following factors in terms of whether a claim is or is not compensable under our Workers’ Compensation Laws, to include:
- An employer/employee relationship;
- A work-related injury occurring within the course and scope of employment;
- That the work-related injury was not caused by non-work-related factors;
- That the work-related injury has resulted in the Claimant being disabled from being able to perform either pre-injury work, or available modified-duty work;
- That the Claimant is not impeachable on other grounds, to include fraud or dishonesty;
- That the Claimant has not refused or failed to return to work;
- That the injury has resulted in wage-loss producing disability causing continuing income loss to the injured employee; and,
- That the Claimant is not fully recovered from the alleged work injury.
What’s the big deal?
Well we live in a form-intensive and a disability-driven state, where acceptance of a workers’ compensation claim, resulting in compensation benefits being paid, can sometimes, obviously dependent upon the particular facts of a particular claim, can invite lifetime exposure for a particular injury, a particular Claimant, and can expose the employer and insurer to a Sisyphean burden of proof to secure an end point to the workers’ compensation claim, be it through petitioning for a procedural termination, modification, or suspension of workers’ compensation benefits, and/or through a claim compromise, resulting in the parties agreeing to resolve the workers’ compensation claim in a settlement, under which the parties are free to negotiate the terms of settlement, to include what benefits are being resolved, be it wage loss benefits, specific loss benefits, medical compensation benefits, and other potential benefits, to include penalties, attorneys’ fees, and statutory interest.
So as the NTCP has gained in popularity with employers and insurers, it is also become a form heavily scrutinized not only by the Bureau, but also by workers’ compensation practitioners and stakeholders, to include Claimants, Claimants’ attorneys, and Workers’ Compensation Judges deciding workers’ compensation claims where the NTCP might be the only workers’ compensation form that describes and articulates essential facts of the claim, be it the date of injury, mechanism of injury, the description of the injury, and what types of benefits are being paid, be it both indemnity and medical compensation benefits, or conversely, only medical compensation benefits, with there being no reference in the “medical only” NTCP to any temporary compensation benefits being paid in the form of indemnity or wage loss compensation benefits, again when those compensation benefits are considered to be “temporary” under the NTCP, and it does not constitute a formal admission of liability against the employer or insurer, and there is, therefore, no guarantee to the Claimant, that the benefits will continue beyond the ninety (90) days which our State and Act allow temporary compensation benefits to be paid for, from claim or disability inception date through expiration of the ninety (90) day compensation benefit.
As is known by most practitioners in Pennsylvania, the NTCP will automatically convert to an NCP, or Notice of Compensation Payable, if no action is taken at the expiration of the ninety (90) days of temporary compensation benefits under the NTCP, with the Bureau, in its infinite wisdom, issuing a Notice of Conversion, under which that NTCP has now become that procedural compensation judgment under a Notice of Compensation Payable, where the workers’ compensation claim has been accepted by employer and insurer as being work-related and compensable, with the benefits described in the NCP now being due and owing, absent the employer or insurer proving the following factors:
- The Claimant dies, 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.
Pregnant with thought? Maybe not!
Recently, the Pennsylvania Commonwealth Court issued a Decision dated January 24, 2019 under the caption of Valley Stairs and Rails v. Workers’ Compensation Appeal Board (Parsons), with the Commonwealth Court issuing a ruling clarifying the proper use of the NTCP, specifically determining when the first date of disability under a NTCP should be considered to have occurred.
Before plunging into the facts of Valley Stairs, it is necessary to emphasize that the Claimant’s bar has been aggressively challenging the basis for using NTCPs, attempting to allege, that Employers and Insurers have subverted the form-issuance process under the Pennsylvania Workers’ Compensation Act, by delaying the decisions relative to the acceptance or denial of a workers’ compensation claim, by claiming, under the NTCP, that only temporary compensation benefits are payable for the first ninety (90) days relevant to the reporting of an alleged work-related injury.
In Valley Stairs, the Employer petitioned for a review of an Order issued by the Workers’ Compensation Appeal Board (Board), reversing an Order rendered by a Workers’ Compensation Judge (WCJ), which had denied a Penalty Petition that had been filed by the Claimant, under which the Claimant had alleged that a NTCP had been improperly used, with the Claimant contending that the NTCP was issued one day later than the Claimant contended it should have been utilized, further contending that the Employer’s revocation of the NTCP, at the 90th day of issuance of the NTCP, was also one (1) day late, under which the Claimant was alleging that the NTCP should convert to a Notice of Compensation Payable, requiring the Employer and Insurer to accept the Claimant’s workers’ compensation claim as compensable and work-related, and to, in accordance therewith, issue workers’ compensation benefits to the Claimant, in the course of paying the Claimant indemnity compensation benefits, for purposes of providing wage loss benefits to the Claimant, as well as to insure payment of the Claimant’s reasonable, necessary and causally-related medical expenses.
Often, facts count!
The timeline for Valley Stairs was that the Claimant had sustained a low back strain, while working for the Employer, Valley Stairs, on March 27, 2015. The Claimant’s injury resulted in the Claimant being transported by ambulance to hospital, with the Claimant then never working for the Employer after the alleged work injury, although the Claimant was paid full pay for the date that the Claimant alleged his injury, with the Claimant’s final paystub then stating that the Claimant was paid seven (7) hours of “COMP – TM”, at the Claimant’s regular pay rate.
In turn, the Employer, through its insurance carrier, issued a NTCP describing the injury as a low back strain, and indicating the date of injury as March 27, 2015, with NTCP indicating the ninety (90) day period, under Section 46.1(d)(6) of the Pennsylvania Workers’ Compensation Act (WCA), began on March 30, 2015, the date of issuance of the NTCP, through June 27, 2015, the 90th day from issuance of the NTCP on March 30, 2015.
On June 27, 2015, the Employer then filed a Notice of Compensation Denial, under which it alleged that the Claimant had failed to give timely and proper notice of his injury, and that the Claimant had not sustained any compensable wage loss. The very next day, the Employer filed a Notice Stopping Temporary Compensation Payable (as well as a Notice of Compensation Denial).
The very next day, the Bureau, in its infinite wisdom, issued a Notice of Conversion, converting the NTCP into a Notice of Compensation Payable.
Shortly thereafter, the Claimant filed a Penalty Petition, alleging that the Employer violated the Act, by stopping the payment of compensation and benefits after the NTCP had converted to a NCP.
In the course of hearings before the WCJ, the Claimant testified that he was injured on March 27, 2015, when he was sliding a stair across a floor, with the Claimant then going to the hospital by ambulance, and never returning to work after the injury.
The same day as the Claimant alleged his injury, the Claimant received paperwork stating that he could not return to work, presumably from the emergency room physicians or triage personnel, with the Claimant then presenting what can only be construed to be a disability note taking the Claimant out of work, to a co-worker at the Claimant’s Employer, with the co-worker then taking the paperwork into the building, and retrieving the Claimant’s lunch box.
Introduced into evidence in the Claimant’s hearings with respect to the Penalty Petition, was a copy of the Claimant’s final paystub, again reflecting that the Claimant received payment of salary wages for both “regular” hours, as well as seven (7) hours of “COMP – TM”.
Also presented as evidence were the first indemnity benefit checks, in the form of temporary compensation benefits, which were submitted to the Claimant, evidencing that the temporary compensation benefits actually began on March 30, 2015, continued, for some reason, until April 12, 2016. (???)
Finding that the Claimant received his full pay for the date of the alleged injury, being March 27, 2015, the Workers’ Compensation Judge, in ruling on the Penalty Petition, determined that the Claimant’s disability commenced on the date of first payment of temporary compensation benefits, being March 30, 2015, further finding that the Employer’s Notice Stopping Temporary Compensation (NSTC) was filed on the 90th day of the Claimant’s alleged disability, being June 29, 2015, with the Workers’ Compensation Judge finding that the Notice of Conversion issued by the Bureau had been improperly issued, and was thus void as a matter of law.
That conclusion resulted in the Workers’ Compensation Judge finding that the Claimant failed to prove a violation of the Act, with the Claimant’s Penalty Petition being denied.
Seeking appeal, the Claimant then appealed to the Workers’ Compensation Appeal Board (WCAB), asserting that the WCJ had erred in finding the first date of disability was March 30, 2015, with the Claimant contending that his injury had rendered him unable to return to work on the date of the alleged injury, being March 27, 2015.
In addition, the Claimant argued before the Board, that the WCJ had made an erroneous finding of fact that the Employer’s Notice Stopping Temporary Compensation was timely filed, since the Claimant contended that it was issued on the 93rd day of disability, with the Claimant contending that the Bureau had properly issued the Notice of Conversion, and that the Employer had improperly stopped the payment of temporary compensation benefits to the Claimant.
The Claimant’s appeal was actually upheld by the Board, which reversed the Workers’ Compensation Judge’s Decision, as the Board concluded, in reliance upon Galizia v. WCAB, 933 A.2d 146 (Pa. Cmwlth. 2007), that the “date the 90th day period begins on is the first day that the Claimant was entitled to receive disability benefits as a result of the work injury.”
Moreover, the Board concluded that the WCJ’s findings that the Claimant received his full pay for the date of the alleged injury did not outweigh the fact that the Board concluded that the Claimant had clearly sustained a loss of earning power on the day of the alleged injury, notwithstanding that the Claimant was paid by the Employer for that date.
Concluding that the Claimant should have been eligible for compensation benefits as of March 27, 2015, the date of the alleged injury, it further concluded that the ninety (90) day period for stopping temporary compensation benefits would have ended on June 25, 2015, further finding that NTCP would have converted to an NCP by operation of law before the Employer issued the NSTC and the NCD on June 29, 2015.
An immediate appeal was taken by the Employer, resulting in the Employer’s appeal ascending to the Commonwealth Court.
In deciding the Employer’s appeal, the Commonwealth Court reviewed the relevant provisions of the Act, to include Sections 306(a)(2) and 406.1(d), which stated as follows:
“Nothing does actually require payment of total disability benefits under this clause for any period during which the employee is employed or receiving wages.” 77 P.S. §511.2
“The Employer and Insurer shall promptly investigate each injury reported or noted to the Employer and shall proceed promptly to commence payment of compensation due to 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 Employer …
In any instance where an employer is uncertain whether a claim is compensable under this Act or uncertain as to 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 employee must file a claim to establish the liability of the employer.
(iii) If the employer ceases making payments pursuant to a notice of temporary compensation payable, after complying with this clause, the employer and employee retain all 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.
Arguing that the first date of disability is the first date that the Claimant is actually out of work as the date that compensation is payable, the Employer argued that the Claimant was prevented from receiving compensation benefits on the date of injury, since the Claimant had received his full pay for that date.
In so arguing, the Employer emphasized that the Claimant was paid the same rate of pay for all hours, further asserting that the Claimant earned his usual wages on the date of the alleged injury, such that the Claimant had no loss of earning power and, accordingly, that there was no “disability” for which there would have been either the right of the Claimant to receive compensation benefits, or the obligation of the Employer to pay the same.
As is well known in our form-intensive and disability-driven jurisdiction, we regard “disability” for workers’ compensation benefit purposes, as the loss of earning power, such that even if there is a work-related physical disability, it is only compensable if that physical disability occasions an actual loss of earnings that would entitle the injured employee to receive compensation benefits under the Act. Bissland v. WCAB, 638 A.2d 493 (Pa. Cmwlth. 1994).
Countering Employer’s argument, the Claimant pointed to Section 406(1)(d) of the Act, arguing that the Employer is directed to timely stop an NTCP within ninety (90) days from which the date that compensation was “payable”.
Arguing that he was treated for his work injury at the hospital on the date of the alleged injury, the Claimant argued that his compensation benefits were not only payable, but were actually paid, as the Employer did pay for the Claimant’s medical treatment on the date of the alleged injury, with the Claimant arguing that the WCJ had committed errors of fact and law in finding that the Claimant received his full pay on the date of being treated, since the Claimant’s paystub denoted the time that he was paid for as “COMP – TM”.
The Claimant also argued that even if what he was paid on the date of his alleged injury constituted full pay, such that no actual loss of wages had occurred, the Claimant argued that the wages that he was paid under the date of his injury was a “de facto acceptance” of his injury since he continued to receive payments from the Employer after he became disabled, prior to the actual issuance of the TNCP by the Employer’s Insurer.
Countering Claimant’s argument that the payment of the Claimant’s medical expenses on the date of the alleged injury constituted a payment of compensation benefits on the date of his injury, the Employer correctly asserted that “compensation”, sometimes loosely defined in the Act, and under ruling case law, is limited to wage loss benefits, and does not necessarily extend to medical bills that might be paid by an Employer or Insurer post-injury.
In reliance upon Bureau regulations regarding the payment of wages, the Commonwealth Court, in an Opinion authored by Judge Patricia McCullough, determined that the ninety (90) day period for the payment of temporary compensation benefits, also relevant to the ninety (90) day period for the stoppage of temporary compensation benefits, as well as for the issuance of the NSTC and NCD, was March 30, 2015, the first day that compensation benefits were paid to the Claimant, as listed on the NTCP.
Since the Employer had filed its Notice Stopping Temporary Compensation Payable on June 29, 2015, the 90th day from March 30, 2015, the Commonwealth Court concluded that the Notice Stopping Temporary Compensation and the Notice Denying Compensation were both timely issued, resulting in the Bureau’s Notice of Conversion being voided.
A Concurring Opinion was authored by Judge Ann Covey, with Judge Ann Covey concluding that the Claimant’s “first day out of work”, relevant for the first date upon which temporary compensation benefits should be paid, was March 30, 2015, the Monday following the Claimant’s alleged work injury on the preceding Friday.
It is anticipated that the Valley Stairs Commonwealth Court Decision will likely be appealed by the Claimant, as this is a strategy being advanced by the Claimant’s bar, to challenge NTCPs.
The take away, yes, we get it, our Newsletter was a little long-winded, but an issue that might not be considered critical to Employers, Insurers and Administrators, although it illustrates the extent to which the Claimant’s bar will seek penalties, in the course of challenging the utilization of NTCPs by Defendants.
The Valley Stairs Decision by the Commonwealth Court is supportive of tying together several sections of the Act, to reinforce relevant dates and deadlines critical to the utilization of NTCPs, as well as the forms that would stop temporary compensation benefits, being the NSTC and the NCD.
No less true, we sometimes run into claims where temporary compensation benefits are stopped with the utilization of only one form, when both are required, being the requirement that both the NSTC and NCD be issued at or before the 90th day of temporary compensation benefits, to avoid clashes with Claimants’ attorneys over whether an NTCP has “converted” to a Notice of Compensation Payable, a conversion that should be voluntary and not involuntary by Employers, Insurers, and Administrators.
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