Court Affirms the Concept of a De Facto NCP Under the Workers’ Compensation Act; Decision Perpetuates Procedural Concerns

Published on: April 14, 2014

One of the issues that periodically rears its head in claims under the Pennsylvania Workers’ Compensation Act is whether there exists such a concept as a de facto Notice of Compensation Payable (NCP). This is an important concept because an NCP provides an injured worker with certain rights, and we have argued for years that certain conduct by employers should in fact be deemed the creation of a de facto NCP.

In Furnari v. Workers’ Compensation Appeal Board (Temple Island), decided on April 10, 2014, the Commonwealth Court ruled that payment of an injured worker’s salary and medical expenses in lieu of compensation constitutes a de facto Notice of Compensation Payable. The Court also ruled that, when there is both a documented work-related injury, either by adjudication or acceptance such as a Notice of Compensation Payable, and that injury gives rise to a disability, i.e., loss of earning power, the proper burden of proof is that of a reinstatement petition. In the absence of both or either of these prongs, the burden of proof is that of a claim petition.

Despite these practical rulings, the Court continued to affirm prior decisions that can, in effect, allow a Workers’ Compensation Judge to rule on any issue, even when no petition is filed — in the past, the Courts had consistently ruled that an employer cannot obtain relief such as the cessation of an employee’s benefits unless it filed the proper petition. In this case, the Court said, “Because strictness of pleadings is not required in workers’ compensation cases, and in the interest of judicial economy, a Workers’ Compensation Judge is empowered to take appropriate action based on the evidence presented.  Thus, in this case, in which a claimant sought reinstatement of suspended benefits, even though it was alleged that the suspension was improper, the employer was not required to file a suspension petition in order to obtain that relief. Rather, by filing an Answer denying the obligation to pay wage losses, the WCJ could grant a suspension.”

The only differentiating factor here, however, is that the benefits the WCJ suspended had been unilaterally suspended previously. Thus, the question remains whether the Court will countenance the same result if benefits were ongoing. Our guess is that the Court will say “yes.”

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