By: Lisa A. Miller, Esquire
The Court affirmed the Decision of the Appeal Board which affirmed the Decision of the WCJ denying Claimant’s Penalty and Dismissing Claimant’s Reinstatement Petition.
Claimant filed a Claim Petition alleging an injury on April 20, 2009 while working for Employer. While the Claim Petition was pending, the Insurer sent the Claimant a form entitled “Employee Verification of Employment, Self-Employment or Change and Physical Condition” the form was identified as “form LIBC-760”. The Claimant was instructed to “sign, date and return forms to the Employer within thirty days”. The letter also advised that if the Claimant had any questions, he could call the Claims Representative, and the letter provided the Claims Representative’s direct phone number.
On February 22, 2010, several days after the thirty-day deadline stated in Insurer’s cover letter, Claimant’s counsel faxed the LIBC-760 to the Insurer. On April 13, 2010, the Insurer rejected the Claimant’s form LIBC-760, stating that “we must have the originals, and they must be dated.” On May 20, 2010, the Claimant returned the original LIBC-760 by hand-delivery, although it still did not have a date. In the cover letter, the Claimant asserted that the original LIBC-760 did not have to be returned.
The WCJ granted the Claimant’s Claim Petition as of April 30, 2009. On August 13, 2010, Employer sent a Notice of Suspension as of February 17, 2010, because the Claimant had not properly completed and returned the LIBC-760 to Employer.
On August 19, 2010, the Claimant mailed a second LIBC-760 to Employer, which was dated. Accordingly, Employer reinstated benefits as of August 20, 2010. Claimant filed a Penalty Petition and Petition to Reinstate Compensation Benefits for the period of February 17, 2010, to August 19, 2010.
The Claims Representative was the only witness. She acknowledged receiving the LIBC-760 by fax on February 22, 2010. However, she did not believe the form was properly completed because it was not dated. She believed the date was important because “in speaking with law enforcement officials, that in order to prosecute for insurance fraud, you may not prosecute unless this form is dated.”
Employer’s counsel argued that a Claimant must return an original of the LIBC-760, not a fax copy. Claimant responded that it was common practice to send such forms by fax, and nothing in the Act prohibited this.
The WCJ found the fax copy of the LIBC-760 unclear and difficult to read, and observed that providing the originals was the better practice. The Judge also noted that the date line next to the signature line had not been completed by the Claimant. The WCJ found this to be a fatal admission. The WCJ reasoned that without a date on the form, the Employer cannot determine what period of time was covered by the verification. Because an Employer may not send an LIBC-760 more frequently than every six months, it needs a date to calculate the mailing date for the next form. Concluding that the Claimant had not returned a completed form on February 22, 2010, the WCJ denied the Penalty Petition and dismissed the Reinstatement Petition as moot, noting that Employer had reinstated benefits on August 20, 2010.
The Claimant argued that based on Thomas v. WCAB (Temple University Hospital), (a fax transmission of the LIBC-760 is permissible. However, the Board denied Claimant relief since he had not provided a date on the form.)
The Claimant raises two issues on appeal. First, that it is permissible to return an LIBC-760 by fax since the facsimile provides the date.
Second, that the Board erred in holding that the LIBC-760 was defective. Under Section 306(d):
The Insurer may submit a verification form to the employe either by mail or in person. The form shall request verification by the employe that the employe’s status regarding the entitlement to receive compensation has not changed, and a notation of any changes of which the employe is aware at the time the employe completes the verification, including employment, self-employment, wages and changes in conditions…. It shall include a certification evidenced by the employe’s signature that the statement is true and correct, and that the Claimant is aware of the penalties provided by law for making false statements for the purposes of obtaining compensation.
Under 306(e) the employe is obligated to complete accurately the verification form and return it to the insurer within thirty days of receipt by the employe of the form. Under 306(g) if the employe fails to return a completed verification form within thirty days, the insurer is permitted to suspend compensation until the completed verification form is returned.
Consistent with Thomas, the Court held that the LIBC-760 can be returned by facsimile. The only question is whether the LIBC-760 must be dated by the Claimant.
The purpose of the LIBC-760 is to inform an Employer of the Claimant’s work status and medical condition. Section 311.1(d) of the Act states that the “form shall request verification by the employe that the employe’s status regarding the entitlement to receive compensation has not changed, and a notation of any changes of which the employe is aware at the time the employe completes the verification, including employment, self-employment, wages and changes in physical condition” 77 P.S. §631.1(d) (emphasis added). Further, an Employer may request a Claimant to complete form LIBC-760 (at intervals of no less than six months). The LIBC presents a snapshot in time of Claimant’s employment and physical status. Without a date, the snapshot is rendered meaningless.
The Court held that it is clear that the signature and date are essential to the unsworn statement to the Department of Labor and Industry. This date is needed to confirm the substance of the statements in the LIBC-760 as a date certain. Because the Claimant’s LIBC-760 did not verify the Claimant’s status at the time the form was completed, it was not completed accurately under Section 311.1(e) of the Act. The Employer’s suspension was authorized and the Decision of the Board was affirmed.
