IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dennis L. Ritchey, : Petitioner : : v. : No. 1635 C.D. 2008 : Submitted: February 27, 2009 Workers' Compensation Appeal Board : (WalMart, Inc.), : Respondent : BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: May 12, 2009 Dennis L. Ritchey (Ritchey) seeks review of the order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) who denied the penalty petition that Ritchey filed against WalMart, Inc. (Employer). Ritchey complains that the WCJ and the Board failed to find that Employer violated Sections 406.1(b) and 406.1(d)(6) of the Workers' Compensation Act (Act) 1 when it terminated Ritchey's benefits following a Notice of Temporary Compensation Payable (NTCP) without either obtaining an 1 Act of June 2, 1915, P.L. 736, as amended, added by Act of February 8, 1972, P.L. 25, 77 P.S. 717.1(b) and 717.1(d)(6). Section 406.1(d)(6) provides that if an employer paying temporary benefits pursuant to a notice of temporary compensation payable (NTCP) does not issue a notice stopping temporary compensation payable (NSTC) within ninety days, the employer shall be deemed to have admitted liability and the NTCP shall be converted to a notice of compensation payable (NCP). Section 406.1(b) provides that compensation payments made pursuant to an agreement or NCP may be terminated upon the filing of a petition.
order of a WCJ or issuing a proper Notice Stopping Temporary Compensation (NSTC) within ninety days of disability. The WCJ adopted the stipulated facts of the parties as follows: (a) Claimant was involved in a motor vehicle accident on November 6, 2006 while in the course and scope of his employment as a truck driver with the Defendant. (b) A Notice of Temporary Compensation Payable was filed on November 15, 2006, describing the November 6, 2006 work injury as "broken nose, hip strain" and reflecting the payment of temporary total disability benefits effective November 7, 2006. (c) Defendant filed a Notice Stopping Temporary Compensation Payable (LIBC-502) on December 28, 2006 wherein it was indicated that payment of temporary compensation was being stopped as of January 1, 2007. (d) The Notice Stopping Temporary Compensation Payable indicated, "We have accepted responsibility for your claim, and attached is a Notice of Compensation Payable or an Agreement for Compensation". (e) A Medical-Only Notice of Compensation Payable (LIBC-495) dated December 28, 2006, describing the November 6, 2006 injury as "broken nose", was attached to and filed with the Notice Stopping Temporary Compensation Payable. (f) A Notice of Workers' Compensation Denial (LIBC- 496) was filed on January 28, 2007 wherein it was indicated that, "Although an injury took place, the Employee is not disabled as a result of this injury within the meaning of the Workers' Compensation Act." WCJ Findings of Fact Nos. 3(a) - (f), Reproduced Record (R.R.) at 43a (emphasis original). Ritchey's penalty petition alleged that Employer violated the Act by issuing the NSTC that accepted liability for his claim while also stopping his 2
indemnity benefits. The WCJ concluded that Employer complied with Section 406.1 of the Act and was not required to issue a Notice of Workers' Compensation Denial (NCD) along with its medical-only Notice of Compensation Payable (NCP). He noted Employer's position that it accepted only a non-disabling broken nose injury. The WCJ also permitted Ritchey's counsel to submit for approval an itemized fee statement for professional services related to the litigation. In an amended decision, the WCJ approved the total itemized fee as reasonable but awarded no counsel fee because the penalty petition was denied. The Board affirmed, noting that Section 406.1 allows an employer that is uncertain about whether a claim is compensable to pay temporary benefits for up to ninety days with an NTCP and thereafter to stop benefits as long as the claimant "receives a 'notice in the form prescribed by the department' within five days of the last payment of compensation," and if it is being stopped the notice advises the claimant 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 employe must file a claim to establish the liability of the employer." Board Opinion at 3-4 (quoting Section 406.1(d) of the Act, 77 P.S. 717.1(d)(5)). The Board stated that 34 Pa. Code 121.17(d) requires an employer to file either an NSTC with an NCD within five days of the last payment, an NCP or an Agreement for Compensation and that if the employer fails to do so within ninety days it is deemed to have admitted liability. The Board concluded that the filing of a medical-only NCP was analogous to filing an NCD as contemplated by the regulations. Thus while Employer checked a box on the prescribed form that indicated it accepted responsibility for the claim, that acceptance was qualified by 3
the content of the medical-only NCP. The Board cited Armstrong v. Workers' Compensation Appeal Board (Haines & Kibblehouse, Inc.), 931 A.2d 827 (Pa. Cmwlth. 2007), where the Court determined that the filing of an NSTC with an NCD showing that the employer disputed the length and extent of disability rather than occurrence of the injury serves the same objective as a medical-only NCP. 2 Ritchey argues that Employer accepted responsibility for the claim in the NSTC. The medical-only NCP attached had no legal effect; therefore, the NTCP converted to an NCP after ninety days and Ritchey's indemnity benefits could have been stopped only by Employer's prevailing on a termination petition pursuant to 77 P.S. 717.1(b) and 717.1(d)(6). 3 Ritchey asserts that an employer is not permitted to file a medical-only NCP after it starts paying temporary benefits because it does not conform to the required notice under Section 406.1(d) of the Act, is not supported by any other section of the Act or any of its regulations and is not sanctioned by case law. 2 The Court's review is limited to determining whether constitutional rights were violated, an error of law was committed, a practice or procedure of the Board was not followed or the findings of fact are not supported by substantial evidence in the record. Peterson v. Workers' Compensation Appeal Board (Wal Mart), 938 A.2d 512 (Pa. Cmwlth. 2007). 3 Ritchey also argues that Employer's medical-only NCP based upon the opinion of a nurse was not supported by a competent medical opinion and that the WCJ failed to issue a reasoned decision. These issues are not raised in Ritchey's statement of questions involved. Pa. R.A.P. 2116(a) provides that "[n]o question will be considered which is not set forth in the statement of questions involved or suggested thereby." Nevertheless, the Court concludes that the WCJ's decision allowed for adequate appellate review under Daniels v. Workers' Compensation Appeal Board (Tristate Transp.), 574 Pa. 61, 828 A.2d 1043 (2003). Ritchey failed to raise the competent medical opinion issue in his petition for review. This argument is therefore waived. M & B Inn Partners, Inc. v. Workers' Compensation Appeal Board (Petriga), 940 A.2d 1255 (Pa. Cmwlth. 2008). In any event, such a challenge to the NCP would not be made with a penalty petition but rather through a petition to review the NCP pursuant to Section 413(a) of the Act, 77 P.S. 771. 4
The medical-only option was adopted after the decision in Waldameer Park, Inc. v. Workers' Compensation Appeal Board (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003), which held that even if an employer acknowledged that an employee was injured but not disabled by paying his or her medical bills, the employer was still required to file either an NCP or an NCD pursuant to Section 406.1(a) of the Act. Ritchey stresses that the employee in Waldameer Park did not lose time at work, whereas he did miss work following his injury. By issuing the medical-only NCP, Employer here was actually avoiding its responsibility for paying benefits. Although Employer did eventually issue an NCD, this was not done within five days of the last indemnity payment and therefore violated both Section 406.1(d)(5) and Section 406.1(c) (insurer shall promptly notify employee if compensation is opposed and state the grounds for opposition). Employer responds that it filed an NSTC using the form prescribed by the Department of Labor and Industry, and it apprised the Bureau of Workers' Compensation and Ritchey that temporary compensation was being stopped as of January 1, 2007 based upon an attached NCP acknowledging responsibility to pay for Ritchey's medical treatment for his broken nose only. These notices dated December 28, 2006 were sent within five days of the last compensation payment on January 1, 2007 and advised Ritchey that Employer challenged the extent of its liability under the Act. 4 As the Board determined, the filing of an NSTC and a 4 The regulations further provide that when temporary compensation payments are stopped, an employer shall file one of the following: (1) A Notice Stopping Temporary Compensation, Form LIBC-502, and a Notice of Workers' Compensation Denial, Form LIBC-496, within 5 days of the last payment and within the 90-day temporary compensation payable period. (Footnote continued on next page ) 5
medical-only NCP accomplished the same objective as if Employer had used the NSTC and NCD under 121.17(d)(1). Employer submits that Armstrong supports the decisions of the WCJ and the Board. In Armstrong the employer issued an NTCP and within the ninetyday time frame issued a subsequent NSTC and NCD that disputed the extent of the claimant's disability. The employer then sought utilization review of the claimant's chiropractic treatment without issuing a medical-only NCP. The Court held that although the employer should have used the medical-only option on the NCP to elect to pay for medicals and not wage loss, the particular form used had the same effect of accepting liability for only the medical component of the injury. Employer also cites Gumm v. Workers' Compensation Appeal Board (J. Allan Steel), 942 A.2d 222 (Pa. Cmwlth. 2008), as proof that the Court imparts a common sense approach when addressing issues concerning the use of the proper Department form. The determination there was that the employer properly used an NCD to controvert a claim on the basis that the claimant's disability did not result from the injury. The NSTC and medical-only NCP filed by Employer controverted the claim both as to the nature of the injury and the extent of disability. Employer distinguishes Jordan v. Workers' Compensation Appeal Board (Philadelphia Newspapers, Inc.), 921 A.2d 27 (Pa. Cmwlth. 2007), where the employer admitted a work-related disability but filed an NCD along with the NSTC on the basis that (continued ) 34 Pa. Code 121.17(d). (2) A Notice of Compensation Payable, Form LIBC-495. (3) An Agreement for Compensation for Disability or Permanent Injury, Form LIBC-336. 6
the payments to the claimant under a salary continuation program resulted in no compensable lost time. The Court found that the program did not justify the failure to acknowledge a work injury that the employer admitted was disabling. After its review, the Court agrees with the Board and the WCJ that Employer satisfied the requirements of Section 406.1 of the Act and the relevant regulations by filing the NSTC along with a medical-only NCP. As stated in Armstrong, filing a medical-only NCP is the method "by which an employer can accept liability for the injury, not the loss of earning power." Armstrong, 931 A.2d at 831. Coupled with the NSTC, this document gave notice to the Bureau and to Ritchey that Employer acknowledged the injury but was contesting the nature of the injury and the extent of any resulting disability. Because the WCJ and the Board properly found that Employer complied with the Act, the Court shall affirm the order of the Board. DORIS A. SMITH-RIBNER, Judge 7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dennis L. Ritchey, : Petitioner : : v. : No. 1635 C.D. 2008 : Workers' Compensation Appeal Board : (WalMart, Inc.), : Respondent : ORDER AND NOW, this 12th day of May, 2009, the order of the Workers' Compensation Appeal Board is affirmed. DORIS A. SMITH-RIBNER, Judge