PA Court Says WCJ Erred in Failing to Award Attorney’s Fees to Claimant
The Commonwealth Court of Pennsylvania recently reversed a decision of the state's Board and found, contrary to the findings of both a WCJ and the Board, that an employer violated the Pennsylvania Workers' Compensation Act when it failed to issue its medical-only notice of compensation payable in a timely manner and failed further to show that it had reasonably contested the issues in the case [Gabriel v. Workers' Comp. Appeal Bd. (P&G Prods. Co.), 2020 Pa. Commw. LEXIS 693 (Sept. 11, 2020)]. Stressing that had the employer timely filed its NCP, the parties likely would not have been forced to litigate the compensability of an injury about which the employer was well aware–it paid the claimant's medical bills, and provided on-site medical services for the injury some time after it had occurred–the Court found the employer had failed to establish that its contest of the claim was reasonable.
Background
On February 27, 2016, Claimant, while working as a technician for Employer, was removing steel wire from bales of pulp, when one of the wires snapped and punctured Claimant's upper left arm. Claimant notified Employer on March 7, 2016, about the injury. Employer did not issue a notice of compensation denial (NCD) or a notice of compensation payable (NCP) within 21 days of notice but did pay Claimant's medical expenses. On August 17, 2017, Claimant filed the Claim Petition, alleging a work-related injury of "[p]uncture wound to the left elbow, causing permanent numbness in the left elbow region." Employer filed an answer denying all the allegations in the Claim Petition.
At two separate hearings, one held September 21, 2017, and the other held December 19, 2017, Claimant's counsel indicated that Claimant did not yet have documentation from a doctor regarding Claimant's injury. Counsel added that Claimant had filed the Claim Petition because Employer never filed any notices, such as an NCP or NCD. When asked if Employer sought to have Claimant examined, Employer's counsel indicated that if Claimant was "just going with, like, a puncture wound or numbness and he hasn't sought any treatment after April of 2016, I don't see a need to get him examined. The WCJ re-listed the matter for another hearing to provide the parties time to resolve the issue or for Claimant to obtain a medical report and notify Employer what the injury was that Claimant sought to have recognized in the NCP.
At a final hearing on March 15, 2018, Claimant submitted a medical report of a physician who had examined Claimant and concluded that Claimant sustained "a laceration to branches of the posterior cutaneous nerve … ," which resulted in "a permanent loss of sensation in" the area of the "posterior elbow region of [Claimant's] left upper extremity." Thirteen days later, Employer issued a medical-only NCP for a "punctured left upper arm."
WCJ: Reasonable Basis For Contesting Claim
Subsequently, the WCJ issued a Decision granting the Claim Petition but not awarding a penalty or unreasonable contest attorney fees. The WCJ concluded that there was no violation of the Act warranting the assessment of a penalty, reasoning that although the NCP was not issued until March 28, 2018, Employer had paid Claimant's medical bills and there was no evidence to indicate that the medical bills were paid untimely or that Claimant had been denied medical treatment. The WCJ added that it wasn't until the last hearing that Claimant produced any medical evidence establishing a specific diagnosis for his work injury other than a puncture wound. Therefore, the WCJ found that Employer had a reasonable basis for contesting the matter and did not award attorney fees.
Board Agrees
The Board affirmed, indicating that Claimant sought recognition in his Claim Petition of more than just a puncture wound, the injury ultimately recognized by Employer, and Claimant did not present evidence establishing a diagnosis, apart from a puncture wound, until the final hearing. Noting that it was Claimant's burden to prove the injury, the Board said Employer immediately stipulated to Claimant's expert conclusion when it was given. The Board found no indication that the contest was prompted to harass Claimant.
Commonwealth Court Disagrees
The Commonwealth Court initially noted that the question of whether a contest is reasonable is a question of law fully reviewable by the Court and that it was Employer's burden to present sufficient evidence establishing the reasonable basis for a contest. The Court provided an excellent overview of earlier decisions on the issue and stressed that had Employer timely issued the actual medical-only NCP that it eventually filed, the parties would not have had to appear at hearings before the WCJ to litigate the injury. The court also stressed that it was clear from the record that that Employer was aware of the injury for which Claimant sought recognition.
The court reasoned further that because of Employer's failure to file the medical-only NCP or any other compensation document, Claimant had to file his Claim Petition within three years of the work-related injury of February 27, 2016, or any future medical bills related to that injury or complications arising therefrom would be lost for purposes of the Act. The court added thatEmployer's answer had denied all of the allegations of a work-related injury in the Claim Petition despite the fact that Employer had notice of this injury; Employer's doctors had treated Claimant for the injury; Employer's claims administrator acknowledged notice of the injury; and Employer had paid the medical bills for the injury. Employer violated the Act when it did not timely issue the medical-only NCP as required, thus necessitating Claimant's filing a Claim Petition in order to force Employer to comply with its duties under the Act. Accordingly, the court reversed the Board's Order and remanded the matter to the Board with instructions to remand to the WCJ to award reasonable attorney fees.