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In a significant decision addressing the procedure and practice regarding the burden of proof and evidence allowed in an Employee Challenge Petition, the Supreme Court of Pennsylvania clarified the burden of proof and available remedies where a defendant filed a concurrent Suspension Petition, following the employee challenge to the Notice of Suspension.
The pertinent facts reflect employee sustained an acute cervical trapezius strain and left shoulder contusion, which was accepted via a Notice of Compensation Payable. Claimant's treating physician released her to return to work without any limitations, and claimant returned to work. Based upon claimant's full duty return to work, the employer filed a notice to suspend her benefits pursuant to §413(c) (LIBC-751). Workers' compensation benefits were stopped concurrent with the filing of the Notice of Suspension.
Twelve days after the return to work, claimant called "off sick" from work. She subsequently filed a challenge to employer's Notice of Suspension. Employer filed a Petition for Suspension based upon claimant's full duty work release by her physician. This petition requested a supersedeas of benefit payments.
At the initial evidentiary hearing, the workers' compensation judge accepted claimant's medical evidence and rescheduled case for a second supersedeas hearing, as the employer Suspension Petition was pending assignment by the Bureau of Workers' Compensation. Evidence reflected that claimant was treating with a "new" doctor for low back and leg symptoms, which employer argued were not referenced in the Notice of Compensation Payable for the accepted work injury.
At the second supersedeas hearing, the judge considered employer's evidence in a Suspension Petition and ruled that she would decide both the employee's challenge and the employer's §413(a.2) Suspension Petition with a supersedeas request. The judge issued a decision denying the Challenge Petition and granting the employer's Suspension Petition, as the evidence reflected that employee stopped working, for reasons not related to her work injury. (At the initial hearing, the employer amended the Suspension Petition to include an averment of termination, which was ultimately granted by the workers' compensation judge).
On appeal, the Workers' Compensation Appeal Board affirmed the suspension of benefits but reversed the workers' compensation judge decision for suspension after claimant's cessation of employment. The Commonwealth Court reversed this decision, stating that it could not agree that a special supersedeas hearing pursuant to a Challenge Petition is limited to questions of whether or not the employee has returned to work without a wage loss, when the employee returned to work and during that length of time, the employee remained working. Citing Webb v. Haddon Craftsman, 2000 WL 655420 (Pa. Work. Comp. App. Bd. May 5, 2000), the Commonwealth Court found that claimant's challenge to the Notice of Suspension effectively converts the employer's notice into a request for supersedeas. According to the Court, "It makes no sense to require a workers' compensation judge to turn a blind eye to the evidence that employer is entitled to a supersedeas when all of the parties are already assembled before him or her for an expedited hearing."
The Supreme Court noted that both the Workers' Compensation Appeal Board and Commonwealth Court did not consider the fact that after claimant challenged the employer's Notice of Suspension, employer filed a separate Petition for Suspension/Termination with a request for supersedeas. The Supreme Court explained that if the employee Challenge Petition "converted the employer's Notice of Suspension into a request for supersedeas, it was a request pursuant to §413(a.2), a request based upon allegations that claimant is capable of returning to work, not a request for automatic supersedeas pursuant to §413(a.1), which must be based upon allegations that claimant has fully recovered.
The Supreme Court rejected claimant's arguments that she had no notice that the employer would be entitled to suspend her benefits for reasons other than those stated in the Notice of Suspension. The Court rejected its arguments that the employee challenge decision was not issued within fourteen (14) days of the first hearing, nor was the supersedeas decision issued within seven (7) days of the hearing. These arguments were rejected as claimant never objected to the workers' compensation judge's decision to hold a second hearing and the supersedeas decision was issued within fourteen (14) days of the second hearing date. The seven (7) day requirement for issuance of a supersedeas decision is a time constraint upon the automatic supersedeas provisions of §413(a.1) and does not apply to the §413(a.2) supersedeas request.
In reviewing the evidence, the Supreme Court found that the workers' compensation judge complied with the procedural requirements, as noted above. Also, the Challenge Petition issues are limited to determining whether the claimant returned to work without a wage loss, and whether the claimant was still working without a wage loss. However, as defendant also filed a Petition for Suspension, the workers' compensation judge properly considered the available evidence to rule upon the defendant's supersedeas request. The Supreme Court held that the employer must file a separate §413(a) Petition for Suspension with a supersedeas request, to protect its rights to continue the suspension of claimant's benefits after the time claimant stopped working, for reasons alleged to be unrelated to the work injury.
PRACTICE POINTER: When an employee returns to work and defendant issues a Notice of Suspension or Modification pursuant to §413(c), if the employee stops working, the defendant must determine if a separate Petition for Suspension (with a supersedeas request) is appropriate based upon the evidence available.
The Supreme Court decision did not enlarge the scope of issues presented at the employee challenge hearing. The issues are limited to determining whether or not the employee has returned to work and remains working. However, the separate defendant Petition for Suspension will allow consideration of the available evidence to determine if defendant is entitled to a "separate" order of supersedeas of benefits following the cessation of work duties.