Three Year Statute of Limitations Applies in PA Workers’ Comp With Medical-Only Notice of Compensation Payable

We are often asked why an injured worker in Pennsylvania needs an attorney.  “They know I got hurt on the job,” the injured worker might say, “Why would I need a lawyer?”  Well, the Commonwealth Court of Pennsylvania recently issued a decision that demonstrates why every injured worker in PA should have an attorney protecting his or her rights.

In Keffer v. Colfax Corporation and Phoenix Insurance Company (Workers’ Compensation Appeal Board) it appears the injured worker did everything his employer and the insurance carrier asked.  And, he lost all of his rights in the process.  This case is a very important lesson for every injured worker in Pennsylvania.

The injured worker in this case hurt his low back lifting a box of metal rods on December 18, 2014.  The insurance carrier issued a Notice of Temporary Compensation Payable (NTCP), accepting the injury as a “low back strain,” and the payment of workers’ compensation benefits began.  These benefits continued until the injured worker returned to full-duty work on March 9, 2015.  The insurance carrier then issued a Notice Stopping Temporary Compensation (NSTC) and a medical-only Notice of Compensation Payable (NCP) on March 12, 2015.

Amazingly, the PA workers’ compensation system currently allows the insurance carrier to use (some of would say “abuse”) these forms in this manner.  Technically, by revoking the NTCP, under the law, disability never happened.  Apparently, those months the injured worker was disabled become a figment of his imagination.

In 2017, the low back injury recurred, leading to a discectomy at L5-S1 on April 11, 2018.  A Supplemental Agreement was executed on April 23, 2018, reinstating total disability benefits, as of April 11, 2018, based on a recurrence of the work injury.  All was well.  The injured worker then returned to work, at no loss in earnings, and a second Supplemental Agreement was executed on June 29, 2018 suspending benefits.

This would be a happy ending if the injured worker was able to continue working into retirement age. Unfortunately, that is not how things progressed.  Instead, the low back injury again recurred, and once again rendered the injured worker disabled.  This time, the insurance carrier refused to reinstate workers’ compensation benefits.  So, on May 14, 2021, the injured worker filed a Petition for Reinstatement, as well as a Petition to Review, to amend the injury to include the herniated disc at L5-S1.

In litigation before the Workers’ Compensation Judge (WCJ), the insurance carrier alleged that the injured worker had lost all of his rights, since no petition was filed within three years of the date of the last payment of compensation benefits (March 9, 2015).  The WCJ agreed with the insurance company that Section 413(a) of the PA Workers’ Compensation Act made the Reinstatement and Review Petitions untimely.  As such, the WCJ denied and dismissed the Petitions.  Upon appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed.  Upon further appeal, the decision was also affirmed by the Commonwealth Court

“Wait a minute,” you might say, “Weren’t benefits paid from April 11, 2018 to June 29, 2018?”  Well, yes.  But these payments took place more than three years after the date of the last payment of temporary total disability, which was March 9, 2015.  As the Court explained:

“Thus, the WCJ correctly held that the Supplemental Agreement did not toll the statute of repose, as our Supreme Court has held that “no payment, whether by agreement or misconstruction of the Act, or commendable compassion, can operate to resurrect an expired claim[,]” once the three-year limitations period in Section 413(a) has expired.”

Although the Supplemental Agreement being held not valid after being agreed to by both parties is disturbing, the use of the TNCP to change the time period allotted for an injured worker to file future petitions is more disturbing.

It is important to understand that Section 413(a) of the Act states, “That where compensation has been suspended because the employe’s earnings are equal to or in excess of his wages prior to the injury that payments under the agreement or award may be resumed at any time during the period for which compensation for partial disability is payable, unless it be shown that the loss in earnings does not result from the disability due to the injury.”

In other words, if the insurance carrier had done what was appropriate in this situation from the start (issuing a regular NCP, followed by a Supplemental Agreement suspending benefits), then the injured worker would have had 500 weeks within which to reinstate his workers’ compensation benefits.  Instead, with a medical-only NCP, the injured worker had only three years (156 weeks) to file a petition to receive benefits for this injury.  If the Carrier would have not abused the TNCP, the Claimant arguably would not have been barred from filing the pending petitions.  For some unknown reason, Pennsylvania Courts currently allow this frequent practice, which we consider to be a complete abuse of the PA Workers’ Compensation Act and arguably fraud on behalf of the insurance Carrier.

In 2005, the Supreme Court of Pennsylvania decided the case of Reifsnyder v. Workers’ Comp. Appeal Bd. (Dana Corp.), uttering the words, “the Pennsylvania Act is remedial in nature and intended to benefit the worker, and, therefore, the [WC] Act must be liberally construed to effectuate its humanitarian objectives.”

How is this Decision of the Commonwealth Court, WCAB and WCJ consistent with an Act designed to promote “humanitarian objectives”?  Never have those words rang more hollow.