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Barrett v. Workers' Compensation Appeal Board

November 5, 2009

JEANETTE A. BARRETT, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (VISION QUEST NATIONAL), RESPONDENT



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

ORDER

AND NOW, this 24th day of February, 2010, it is hereby ORDERED as follows:

(1) The opinion in the above matter, filed November 5, 2009, is hereby AMENDED as shown in the highlighted language of the attached opinion.

(2) The opinion in the above matter shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported as amended by this Order.

Submitted: September 18, 2009

Amended: February 24, 2010

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Jeanette A. Barrett (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that denied her petition for penalties. In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant's employer, Vision Quest National (Employer), never made a payment of compensation to Claimant and, therefore, its denial of liability was timely filed. Accordingly, the WCJ found that Employer did not violate the Workers' Compensation Act (Act)*fn1 and no penalties were warranted. Finding no error, we affirm.

Claimant had worked for Employer as a childcare worker for approximately three days when she allegedly suffered a work-related injury on June 1, 2007. Employer, through its third-party administrator, Specialty Risk Services (SRS), issued a Notice of Temporary Compensation Payable (NTCP) on June 15, 2007, and mailed it to both Claimant and the Bureau of Workers' Compensation (Bureau). Along with the NTCP, SRS also sent Claimant a check dated June 15, 2007, for the pay period from June 2, 2007, through June 15, 2007. However, Employer changed its mind, deciding that the injury was not disabling. On June 18, 2007, Laura LoVallo, an employee of SRS, issued a stop payment on the check sent to Claimant.*fn2 Nevertheless, Claimant received the check and deposited it. Claimant did not learn of the stop payment until her bank advised her that her account lacked sufficient funds to cover checks she had written.

On July 11, 2007, Employer issued a Notice Stopping Temporary Compensation (NSTC) and a Notice of Workers' Compensation Denial (NCD). In the NCD, Employer acknowledged that an injury occurred, but stated that Claimant was not disabled as a result of the injury.

On September 13, 2007, Claimant filed a penalty petition, claiming that Employer violated two provisions of the Act. First, Claimant argued that Employer violated Section 406.1(d)(5)(i) of the Act,*fn3 by failing to issue a NSTC or a NCD within five days after the last payment was made. Claimant contended the last payment was made on June 15, 2007, when SRS mailed the check with the NTCP; accordingly, the NSTC and the NCD were required to be filed no later than June 20, 2007. Because Employer filed the NSTC and NCD on July 11, 2007, Claimant asserted that Employer violated the Act. Second, Claimant asserted that the NTCP should have been converted into a Notice of Compensation Payable (NCP) because Employer did not issue a valid NSTC or NCD within the 90-day time period for payment of temporary compensation, as required by Section 406.1(d)(6) of the Act.*fn4

Employer filed a timely answer to Claimant's penalty petition denying all allegations. Employer contended that it was not subject to Section 406.1(d)(5)(i) or 406.1(d)(6) because it never issued Claimant any payment that would trigger the time limits in those provisions. Employer argued that the stop payment nullified the check and, therefore, could not be considered a "payment" under the Act.

On November 5, 2007, a Workers' Compensation Judge (WCJ) held a hearing on Claimant's penalty petition. Claimant testified that she suffered a left ankle fracture on June 1, 2007, while she "practice[ed] restraints with other employees." Reproduced Record at 18a-19a (R.R. ____). Claimant also stated that she received the NTCP on June 19, 2007, and deposited the accompanying check. She claimed she received no notice of the stop payment on the check until her bank advised her of ...


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