The Month in Pennsylvania Workers' Compensation: April 2014 At-A-Glance
Mitchell I. Golding, Esq. on 5/20/2014
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Kennedy, Campbell, Lipski & Dochney
EVIDENCE/ REINSTATEMENT/ VOCATIONAL/WAGES IN LIEU OF COMPENSATION/ WCJ
Where the employer issued a Medical Only NCP but paid the Claimant salary continuation in lieu of compensation and medical expenses, Medical Only NCP constituted a de facto NCP.
Accordingly, the Claimant's subsequent petition seeking benefits was to be construed as a Petition for Reinstatement and not a Claim Petition.
Salary continuation does not necessarily discharge an employer from its obligations under the Act. Payments in lieu of compensation are any voluntary or informal compensation, apart from the Act, paid with the intent to compensate for a work-related injury.
It is the intent of payment that is its predominant characteristic. In order to demonstrate necessary intent, the burden is upon claimant to show that the monies paid to him were paid and received as compensation under the Act and the record must demonstrate that such finding is based on substantial evidence.
However, if the claimant is totally disabled and money is being paid in relief of the employee's capacity to labor, it having been determined that the employee is entitled to worker's compensation, the amount paid raises a rebuttable presumption, a sufficient inference of an intent to compensate.
Thus, under certain specific circumstances, a claimant need not prove the employer's intent concerning its salary continuation. Rather, the burden is on the employer to rebut the presumption.
Where there is both a documented work-related injury, either by adjudication or acceptance by a document such as an NCP and that injury gives rise to a disability, i.e., loss of earning power, the proper burden of proof is that of a reinstatement petition. In the absence of both or either of these prongs, the burden of proof is that of a claim petition.
Generally, a claimant seeking reinstatement must prove that through no fault of his own, his disability is again adversely affected by the work injury, and the disability giving rise to the original claim continues.
In the absence of the filing of a Petition for Termination or Suspension but in the context of the litigation of Claimant's Petition for Reinstatement a WCJ has authority to suspend/terminate a claimant's benefits where doing so would not be prejudicial to the claimant, i.e., the claimant is put on notice that a suspension/termination is possible and is given the opportunity to defend against it.
In the context of Employer's defense against Claimant's Petition for Reinstatement, Employer has satisfied its burden that suitable employment was available where the record is replete with evidence that Employer made a good faith effort to return Claimant to productive employment by creating a modified-duty job specifically tailored to Claimant's physical restrictions, and the WCJ expressly rejected the Claimant's testimony that the job exceeded his/her limitations.
A modified-duty job is temporary or of short duration only when it will become unavailable on a date certain.
Therefore, the WCJ did not commit an error by suspending Claimant's compensation premised upon its denial of Claimant's Petition for Reinstatement although Employer witness testified the job analysis reflected that Claimant's job could not be permanently modified. This is because there was no record evidence that Employer intended to stop accommodating Claimant's restrictions at any point.
The WCJ did not commit an error of law by affording the job description probative value entered into evidence without objection.
This is because hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding if it is corroborated by any competent evidence in the record.
Hearsay is defined as a "statement, other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted." It has long been established that hearsay evidence, properly objected to, is not competent evidence to support a finding whether or not corroborated by other evidence. However, hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding if it is corroborated by any competent evidence in the record.
Furnari v. WCAB (Temple Inland and Chartis/AIG/ESIS), No. 1171 C.D. 2013 (Decision Judge Covey, April 10, 2014) 4/14
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