Court Affirms Judge’s Discretion in Refusing to Set Aside Mistakenly Issued Medical-Only NCP

The Commonwealth Court upheld a decision refusing to set aside a Medical-Only Notice of Compensation Payable issued after a claimant claimed work-related colon cancer. Although the employer argued the NCP was mistakenly generated due to an insurance adjuster’s misunderstanding of the electronic filing system, the court found no legal error. Under Section 413(a) of the Act, judges have discretion—but not an obligation—to set aside mistakenly issued NCPs.

The claimant notified the employer that he was diagnosed with colon cancer after serving as a firefighter for the employer for 17 years. He requested the employer recognize his cancer as worked-related and asked for payment of workers’ compensation benefits. The employer issued a Medical Only Notice of Compensation Payable, indicating the claimant’s work injury was colon cancer. Subsequently, the employer filed a review petition, alleging that the Medical-Only NCP was mistakenly issued and that it intended to issue a Notice of Compensation Denial. 

The employer presented testimony from the adjuster for the workers’ compensation insurance carrier, who stated it was her recommendation to deny the claim. She did not have a full understanding of the Electronic Data Interchange (EDI) or the automatic generation of compensability-establishing documents. The adjuster had selected “partially deny” in the insurance company’s software, not realizing that it would trigger paperwork indicating acceptance of the medical-only claim and generation of the Medical-Only NCP. The adjuster had no intention of accepting the claim.

The workers’ compensation judge granted the review petition and, in doing so, accepted that the adjuster did not intend to generate a Medical-Only NCP. However, the judge refused to set it aside. According to the judge, the Medical-Only NCP would not be set aside because the adjuster did not receive proper training on the EDI system, which has been in place for approximately 10 years.

The employer appealed to the Workers’ Compensation Appeal Board, which affirmed. 

The employer then appealed to the Commonwealth Court, which affirmed the Board. According to the court, Section 413(a) of the Act says that a judge “may” set aside a NCP that is incorrect, not “shall” set-aside an incorrect NCP. According to the court, the judge possessed the discretion to set-aside the Medical-Only NCP on the basis that it was mistakenly issued but committed no legal error by not doing so. 

_{What’s Hot in Workers’ Comp, Vol. 29, No. 5, May 2025, is prepared by Marshall Dennehey to provide information on recent legal 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}