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SUPREME COURT ADDRESSES BURDEN OF PROOF ON A REINSTATEMENT PETITION

See:Forbes Road CTC v. WCAB (Consla) 999A.2d 627 (Pa. Cmwlth. 5/27/10); Reargument denied _______ A.2d __________ (Pa. Cmwlth. 7/21/2010).

The employer issued a Notice of Compensation Denial (NCD) indicating that although an injury took place, Claimant was not disabled. The issue before the court was whether an employer may properly issue a NCD to accept a claimed work injury for medical purposes only.

Claimant argued that the employer should not have been permitted to issue an NCD to accept Claimant’s work injury for medical purposes only. Specifically, Claimant argued that in using an NCD rather than an NCP, a Claimant’s rights are not protected because a specific injury description is not accepted. He further argued that the only time an NCD can be used for “medical only” purposes is when it is contraverted, and the matter contraverted must be stated. Additionally, Claimant argued that the case of Armstrong v. WCAB (Hanes & Kibblehouse, Inc.), 931 A.2d 827 (Pa. Cmwlth. 200&) was factually and legally distinguishable. This is where Claimant noted in Armstrong the employer initially issued an NTCP and then a Denial. Secondly, Claimant averred that in Armstrong the court was addressing employer’s rights but the legal issue here concerned Claimant’s rights.

The court reviewed Armstrong noting that an employer may properly file an NCD when, although it acknowledges that a work related injury had occurred, there is a dispute regarding the Claimant’s disability. The court noted on the NCD form prescribed by the department, the employer is given the option of acknowledging the occurrence of a work related injury but declining to pay workers’ compensation benefits because the employer is not disabled as a result of the injury. Thus, not withstanding, the factual and legal distinctions between the cases, the court noted this is the current state of the law. The court stated the NCD form is being distributed as an acceptable means of accepting an injury for medical purposes only. Accordingly, the court held an employer may properly issue an NCD to accept a claimed work injury for medical purposes only.

The Court announced:

Practice pointer: Thus, it remains acceptable to issue an NCD rather than an NCP to acknowledge a medical only claim. As always, careful attention should be made as to the injury description.

Although an NCD arguably creates less liability than a medical only NCP, we nonetheless recommend that an NCD be issued only after careful investigation. This is where the court recognizes that an NCD creates significant liability for a carrier.