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If full wages are paid for day of injury occurred, the day after is counted as first day of disability.

April 1, 2019
Valley Stairs and Rail v. WCAB (Parsons); 1100 C.D. 2017; filed Jan. 24, 2019; Judge McCullough

The claimant sustained a low back strain at work and received his full pay from the employer on the date of injury. After the injury, the claimant did not return to work. The employer issued a notice of temporary compensation payable (NTCP), which stated the injury occurred on March 27, 2015, and that the 90-day period, under § 406.1 (d)(6) of the Act, started on March 30, 2015. On June 27th, the employer filed a notice of workers’ compensation denial, and on June 28th, the employer filed a notice stopping temporary compensation. The next day, the Bureau of Workers’ Compensation issued a notice of conversion. Later, the claimant filed a penalty petition, alleging the employer violated the Act by stopping payment of compensation benefits after the NTCP had converted to a notice of compensation payable (NCP).

The Commonwealth Court held that the trigger date for the 90 days of temporary compensation is the date the claimant stops working, or his first date of disability, and that the appropriate date in this case was March 27, 2015. Nonetheless, because the claimant received his full pay on his first day of disability, the court concluded that disability commenced on the day following the injury for which the claimant was paid his full wages for the day or shift. The court arrived at this decision by relying on § 121.15(a) of the Bureau Regulations, which says that in computing the time when disability becomes compensable, the day the injured employee is unable to continue at work by reason of the injury shall be counted as the first day of disability in the seven-day waiting period. However, the section also says that when an injured employee is paid in full for the day on which the injury occurred, the following day shall be counted as the first day of disability. The court said, because the claimant did not work on weekends, the following day, Monday, March 30, 2015, was the trigger date for temporary compensation. Because the employer filed its stoppage notices on June 28, 2015, one day before the end of the 90-day period, the court reversed the Board and concluded that the notice of conversion issued by the Bureau was null and void.

 

Case Law Alerts, 2nd Quarter, April 2019

Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2019 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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