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US Airways and Inservco Insurance Services v. Workers' Compensation Appeal Board12/12/2005
US Airways (Employer) and its insurance carrier petition for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) assessing a $3500 penalty against Employer for failing to issue a notice of compensation payable (NCP) or a notice of compensation denial (NCD) within twenty-one days after Employer became aware of the work injury of Brett Felmey (Claimant). The penalty was based on a violation of Section 406.1 of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. ยง717.1.
On June 24, 2002, Claimant filed pro se a claim petition and a penalty petition alleging that he sustained a "low back injury, L4-L5 herniation, L5-S1 herniation" while attempting to move office equipment in the course of his employment as a human resources consultant and that Employer denied Claimant medical treatment and failed to reimburse him for out-of pocket medical expenses. Claimant sought payment of medical bills, counsel fees and a 50 percent penalty against Employer. At the hearing in October 2002 Claimant's counsel amended the claim petition to change the date of the injury from July 1 to July 12, 2000, to add a wage loss claim and to allege that Employer failed to issue an NCP or an NCD within twenty-one days of the injury. Employer did not contest the work injury but alleged that Claimant did not miss work, that it treated his claim as a medical only claim and that it paid all medical bills. The remaining issues included Claimant's entitlement to wage loss for time missed due to the injury and for his layoff from September 28, 2001 to December 10, 2001 when he began to work for CIGNA and to earn more than his pre-injury wages; Employer's entitlement to a credit for unemployment and severance benefits; and Claimant's penalty request.
Claimant testified that he mentioned his July 12, 2000 work incident to the director the same day and followed up with an e-mail two weeks later, that he missed five or six days with Employer and four days with CIGNA due to the work injury and that he informed the claims representative for Employer's workers' compensation administrator about his restrictions and scheduled back surgery. Claimant submitted the administrator's computer notes and his treating physicians' medical reports. Employer presented the letter sent to Claimant stating that he was entitled to severance pay of $7628.20 following his layoff due to the decline in air passenger travel post-September 11th and Employer's Management Employee Severance Benefits Policy, providing that severance benefits were contingent upon a waiver of all claims against Employer. After the hearing the parties executed an Agreement for Compensation in which Employer agreed to pay Claimant weekly disability benefits of $611 beginning October 16, 2002, the date of his scheduled back surgery, and to pay all reasonable and necessary medical treatment. Claimant's benefits were suspended pursuant to a Supplemental Agreement as of October 30, 2002, when he returned to work after the surgery.
The WCJ denied Claimant benefits for the days that he missed work due to the work injury, concluding that he failed to identify the days and to provide a supporting medical note. The WCJ awarded $611 in weekly disability benefits from September 28, 2001 to December 10, 2001 plus interest at the rate of 10 percent per annum; granted Employer a credit for unemployment and severance benefits; ordered Employer to reimburse Claimant for his out-of-pocket prescription payments; and denied Claimant's request for attorney's fees. Finding that Employer failed to issue an NCP o
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