An employer is not precluded from seeking a termination or suspension of benefits on a date prior to the date of the notice of compensation payable.

The claimant was injured in a car accident while working as a probation officer. She began treating with a panel chiropractor, who subsequently found her to be fully recovered from the work-related strains and sprains as of October 19, 1995. However, the claimant continued to complain of head and back pain, so the panel physician arranged for a second opinion, which also concurred that the claimant was fully recovered. The employer issued a notice of compensation payable on November 7, 1995, listing the accepted injuries as bruises to the head, back and neck. The employer filed a petition to terminate and, in the alternative, a suspension petition since the claimant received salary in lieu of compensation benefits. The workers' compensation judge found that the claimant was fully recovered as of October 20, 1995, and granted the termination petition. The suspension petition was dismissed as moot. The claimant appealed, and after a remand to correct a procedural matter, the Appeal Board affirmed. The Commonwealth Court reversed, finding that the employer had to prove full recovery after the date the NCP was issued, not before, based on a sentence in the case of Beisel v. WCAB (John Wannamaker, Inc.), 465 A.2d 969 (Pa. 1983) that stated, “The employer has the burden of showing the claimant’s disability has changed after the date of the agreement or notice of compensation payable.” The court also remanded the case for a decision on the suspension petition. On remand, the workers' compensation judge granted a suspension as of the date that the employer offered the claimant a position within her pre-injury wages following the treating physician’s clearance for work in September 2007. The claimant appealed, and the Appeal Board reversed on the basis that the employer was required to show that the claimant’s physical condition improved after the issuance of an NCP, even though the effective date of the suspension postdated the issuance of the NCP. The Commonwealth Court addressed the issue of how the date of the NCP affects the employer’s ability to terminate or suspend benefits. The court first noted that the NCP did not identify a starting date of compensation or that the claimant was unable to work when the NCP was issued. Of significance, the court held that preventing an employer from proving a full recovery prior to the date an NCP is issued will discourage employers from issuing NCPs and lead claimants to file claim petitions. Since the employer proved that the claimant had recovered from the work-related injury identified in the NCP, it was entitled to a termination of benefits as of that date, regardless of the date the NCP was issued. The majority disagreed that the single sentence in Beisel requires that a termination or suspension could only be obtained after the date of the NCP, noting that the holding in Beisel was limited to an employer bound by the contents of the NCP.

Case Law Alert, 2nd Qtr 2011