One topic in workers' compensation law that comes up frequently these days, and certainly in this column in various forms, is the notice of temporary compensation payable (NTCP). The use of the NTCP has been so abused, that it is essentially the only “accepting” document that is ever filed anymore. The document was originally introduced into the practice to enable an employer to contest truly questionable claims. Now the truly questionable claims are just denied and the cases with no defense are acknowledged with an NTCP if one is lucky, and more often with a medical only notice of temporary compensation payable (with an under-recognized injury, at that), which is almost not worth the paper on which it is printed. Of course, the abuse of the NTCP is simply a way for the insurer to retain the right to revoke the claim for any reason, or no reason at all, within the fist 90 days.

Given the frequency with which the NTCP is used, it is important to remain current on the law in terms of under what circumstances an NTCP converts into a permanent claim. This is such a fundamental issue given the substantial benefits of having the NTCP convert. It is always easier and quicker to argue over filing dates, receipts, WCAIS entries and payments rather than being forced to prove the merits of a contested claim. A possible NTCP conversion should always be considered in every case before filing a claim petition.

As a quick review of the law in question, Section 406.1 of the act provides in pertinent part as follows:

• The employer and insurer shall promptly investigate each injury reported or known to the employer and shall proceed promptly to commence the payment of compensation due 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);
• In any instance where an employer is uncertain whether a claim is compensable under this act or is uncertain of 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;
• The payment of temporary compensation entitles the claimant to a maximum of ninety (90) days of compensation;
• Payments of temporary compensation may continue until such time as the employer decides to controvert the claim;
• 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
• If the employer does not file a notice under paragraph five within the 90-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.

Basically if an employer wishes to unilaterally cease paying temporary compensation within the 90-day period, subsection (5)(i) requires the employer to file a notice stopping temporary compensation (NSTC). Subsection (6), subjects the NTCP to conversion to an actual NCP if the notice is not sent within the 90 days.

Whereas a prior case, Barrett v. Workers' Compensation Appeal Board (Vision Quest National), 989 A.2d 396 (Pa. Commw. 2010), deals with the technical issue of what constitutes a “payment” in the instance where the employer stops payment on its initial check prior to its receipt by the claimant, the recent case of Valley Stairs and Rails v. Workers' Compensation Appeal Board (Parsons), No. 1100 C.D. 2017 (January 2019) explores the equally technical concept of “payment,” but in context of “date on which disability began.” In Valley Stairs, the claimant was injured on March 27, 2015. In his subsequent paycheck, the employer paid the claimant for the date of the injury, even though he only worked a brief time. To compound the confusion, the pay stub described the date of injury payment as “COMP TM.” Importantly, the claimant never returned to work at all following the injury.

The insurer issued a NTCP that indicated that the injury took place on March 27, 2015, and noted that the 90-day period under Section 406.1(d)(6) of the act ran from March 30, 2015, through June 27, 2015. Even though the claimant's disability seemingly began the day of March 27, the insurer chose March 30, as the first date of disability (the first date that wage loss benefits are owed) since the employer paid the “COMP TM” on the date of injury and the claimant was not scheduled to work the subsequent two days.

An NSTC and a notice of workers' compensation denial (NCD), were both deemed filed with the bureau on June 28, 2015, which would appear to be beyond the allowed 90-day period for revoking the NTCP if the first date of disability were the more obvious date of injury (or even the following day) and not the inexplicable three days later. Normally, there is no dispute as to the first date of disability, but the employer had no other choice but to argue the novel three-day delay, due to the fact the notice would have converted otherwise.

Despite the fact that the Workers' Compensation Act is supposed to be remedial and humanitarian in nature and the benefit of the doubt is to be afforded the injured worker, the workers' compensation judge (WCJ) denied the conversion and the Commonwealth Court bought the employer's argument, reversing the board's reversal of the WCJ's denial. The WCJ noted (as is not in dispute) that disability is defined as wage loss and since the injured worker was paid for the date of the injury by his employer and the next two days the claimant had off, the wage loss did not begin until that March 30, 2015, making the NSTC and NCD timely filed within the 90-day period, rejecting the board's argument that it was of no import that the employer paid the injured worker on the date of injury for wage loss, thus starting the disability date as of the date of injury. The board relied on the Commonwealth Court case of Galizia  v. Workers' Compensation Appeal Board (Woodloch Pines), 933 A.2d 146 (Pa.  Commw. 2007) for the proposition that “the date the 90-day period begins on is the first date that the claimant was entitled to receive disability benefits as a result of the work injury,” which would have been March 27.

In reversing the board, the Commonwealth Court actually acknowledged that “the triggering date” to begin the 90-day period is the date when the injured worker becomes entitled to compensation. Whether the claimant actually received benefits on that date was found to be irrelevant. Had the inquiry ended there, the court would have upheld the board's decision. However, the court became hyper-focused on the fact that the claimant was paid wages for the date of injury (despite not working most of the day). To answer this question, the board appealed to Section 121.15(a) of the special rules of practice in procedure (the bureau regulations), which provide in pertinent part: “In computing the time when the disability becomes compensable, the  day  the  injured employee is unable to continue at work by reason of the injury shall be counted as the first day of disability in the seven-day waiting period. If the injured employee is paid full wages for the day, shift or turn on which the injury occurred, the following day shall be counted as the first day of disability. In determining the waiting period or time during which compensation is payable, each calendar day, including Sundays and holidays, shall be counted. In determining the period of disability, seven should be used as a divisor to determine the number, and any part, of the weeks,” 34 Pa. Code Section 121.15(a).

While even if one concludes, as the court did, that disability is considered to commence on the day following the injury when a claimant is paid his full wages for the “day, shift or turn on which the injury occurred,” the court inexplicably threw in “… and he does not work weekends …” in an effort to artificially extend the first date of disability to Monday, March 30, 2015, thereby making the filing of the NSTC and NCD timely. Specifically, the court stated: “Since claimant did not work on weekends, “the following day” under Section 121.15(a) was Monday, March 30, 2015, as listed in NTCP. 34 Pa. Code Section 121.15(a). Thus, the 90-day period began on Monday, March 30, 2015, and ended on  June  29,  2015. Because the e mployer filed its notice stopping temporary compensation payable and denial on June 28, 2015, both were timely issued and the notice of conversion issued by the bureau was void.”

With due respect to the court, “the following day” was not March 30, 2015. It would have been March 28, since the regulation that the court itself cites, Section 121.15(a), states “… each calendar day, including Sundays and holidays, shall be counted.”

As Valley Stairs demonstrates, the battle over three days makes the difference between an accepted claim and two years of litigation. Given that the notice of conversion, which is supposed to be automatically generated by the bureau, is not always issued when it should be, it is imperative that the claimant's practitioner do the math in each case where an NSTC has (or has not) been issued. Often an accepted claim via conversion that was not acknowledged by the bureau is waiting.

Christian Petrucci, of the Law Offices of Christian Petrucci, concentrates his practice in the areas of workers' compensation and Social Security disability. He also counsels injured workers in matters involving employment discrimination and unemployment compensation benefits.