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Lasko v. Workers' Compensation Appeal Board11/19/2002
Charles Lasko (Claimant) petitions for review of the decision of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) concluding that Aetna Casualty and Surety Company (Insurer) was not responsible for the payment of wage loss benefits to Claimant.
On July 28, 1993, Claimant filed a claim petition against Rely-On Fire Protection, Inc. (Employer), alleging that he sustained a work-related injury in the nature of carpal tunnel syndrome as of February 18, 1993. Employer filed an answer denying all material allegations, and Insurer responded by asserting that it could not be held liable for payment of wage loss benefits for that injury because Employer's workers' compensation insurance coverage had been cancelled prior to the date of injury.
Following a hearing, the WCJ found that Claimant had met his burden to prove that he sustained a work-related repetitive trauma injury that caused a continuous aggravation to a pre-existing condition during the course of his employment with Employer. She further found that his job, prior to February 1, 1993, was a substantial contributing factor to his ultimate work injury realized on February 18, 1993, and ordered Employer and Insurer to pay all reasonable and necessary medical expenses related to Claimant's injury. However, finding that Claimant did not establish that he sustained any actual disability in terms of wage loss because he was laid off as a result of economic reasons, the WCJ concluded that Claimant was not entitled to any wage loss disability benefits. Both parties appealed that determination to the Board which affirmed the WCJ.
Claimant and Insurer then filed cross-appeals with this Court. Concluding that Claimant could not return to his pre-injury job because of his work-related repetitive trauma injury, and there was no evidence that his injury had resolved as of February 22, 1993, this Court held that Claimant was entitled to wage loss benefits and reversed that portion of the Board's decision. See Lasko v. Workmen's Compensation Appeal Board (Rely-On Fire Protection, Inc. and Aetna Casualty & Surety) (Pa. Cmwlth. Nos. 3247 C.D. 1998 and 3307 C.D. 1998, filed September 9, 1999). As to whether Insurer was obligated to pay either Claimant's wage loss benefits or his medical benefits after its policy coverage had expired, this Court concluded that while Employer's workers' compensation insurance policy had expired on February 1, 1993, the coverage would not have lapsed if Employer had not received notice of its impending cancellation of coverage, and the WCJ had made no findings as to whether Employer received notice that its workers' compensation coverage had lapsed, and we remanded the matter for such findings. Id.
On remand, the WCJ found credible Alfred Bittner's testimony, an employee of Agency Services, Inc., an independent premium finance company that financed Employer's workers' compensation policy, that Insurer mailed on January 15, 1993, the notice of intention to cancel the workers' compensation insurance policy as of February 1, 1993, as well as having mailed a notice of policy cancellation on February 1, 1993. The WCJ also found credible the testimony of Deborah Konetsky-Smith, a unit manager/team leader for Insurer, that Employer's policy was canceled effective February 1, 1993, pursuant to a notice of cancellation from Agency Services, Inc. The WCJ also noted that Employer's president, Daniel Gardener, testified that he did not know when Employer received the notice of cancellation and that his secretary would best be able to answer questions regarding the cancellation of the insurance policy, but admitted that she informed him on Feb
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