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McCafferty v. Workers' Compensation Appeal Board (Trial Technologies, Inc.)

Commonwealth Court of Pennsylvania

November 21, 2013

John McCafferty, Petitioner
v.
Workers' Compensation Appeal Board (Trial Technologies, Inc.), Respondent

Argued: October 10, 2013

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION

MARY HANNAH LEAVITT, Judge

John McCafferty (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) denying his penalty petition and dismissing his reinstatement petition.[1] Claimant contends that his failure to date a verification of his inability to work, as of the date he signed the form, was a harmless omission that did not warrant the suspension of his benefits. He contends that the Board erred in affirming the decision of the Workers' Compensation Judge (WCJ). Discerning no error, we affirm.

On November 16, 2009, Claimant filed a claim petition seeking compensation for an injury he sustained on April 20, 2009, while working for Trial Technologies, Inc. (Employer). On January 18, 2010, while the claim petition was pending, Employer's insurer sent Claimant a form entitled "Employee Verification of Employment, Self-Employment or Change in Physical Condition." This verification form was generated by the Department of Labor & Industry, Bureau of Workers' Compensation (LIBC) and is identified as "Form LIBC-760."[2]Employer's letter instructed Claimant to "sign, date and return forms" to Employer within 30 days. Reproduced Record at 31a (R.R. __) (bold in original). The letter also advised that if Claimant had any questions, he could call Christina Anderson, a claims representative for the insurer; the letter provided Anderson's direct phone number.

On February 22, 2010, several days after the 30-day deadline stated in Anderson's cover letter, Claimant's counsel faxed the Form LIBC-760 to Employer's insurer. On April 13, 2010, Employer's insurer rejected Claimant's Form LIBC-760, stating that "[w]e must have the originals and they must be dated." Certified Record (C.R. __), Exhibit D-1. On May 20, 2010, Claimant returned the original Form LIBC-760 by hand delivery, although it still did not have a date. In the cover letter, Claimant asserted that the original Form LIBC-760 did not have to be returned.

On July 20, 2010, Claimant's claim petition was granted as of April 30, 2009. On August 13, 2010, Employer sent Claimant a notice of suspension as of February 17, 2010, because he had not properly completed and returned Form LIBC-760 to Employer. On August 19, 2010, Claimant mailed a second Form LIBC-760 to Employer, which was dated. Accordingly, Employer reinstated benefits August 20, 2010. Claimant then filed a penalty petition and a petition to reinstate compensation benefits for the period of February 17, 2010, to August 19, 2010. The petitions were consolidated for a hearing before the WCJ.

Anderson was the sole witness. She acknowledged receiving Claimant's Form LIBC-760 by fax on February 22, 2010. However, she did not believe that the form was properly completed because it was not dated.[3] She believed the date was important because "in speaking with law enforcement officials, that in order to prosecute for insurance fraud, you may not prosecute unless this form is dated." R.R. 22a.

Employer's counsel argued that a claimant must return an original of the Form LIBC-760, not a faxed copy. Claimant responded that it was common practice to send workers' compensation forms by facsimile and nothing in the Act prohibited the practice.

The WCJ found the faxed copy of Claimant's Form LIBC-760 unclear and difficult to read and observed that providing the originals was the better practice. She further observed that Form LIBC-760 has a date line next to the signature line, which had not been completed by Claimant. The WCJ found this to be a fatal omission. The WCJ reasoned that without a date on the form, the employer cannot determine what period of time was covered by the verification. Because an employer may not send a Form LIBC-760 more frequently than every six months, it needs a date to calculate the mailing date for the next form. Concluding that Claimant had not returned a completed Form LIBC-760 on February 22, 2010, the WCJ denied the penalty petition and dismissed Claimant's reinstatement petition as moot, noting that Employer had reinstated benefits on August 20, 2010.

Claimant appealed to the Board, arguing that the WCJ erred in his application of the Act. The Board noted that in Thomas v. Workers' Compensation Appeal Board (Temple University Hospital) (Pa. Cmwlth., No. 392 C.D. 2008, filed July 9, 2008), a claimant had faxed a Form LIBC-760 to the insurer, which manner of transmission did not elicit a comment from this Court. The Board construed Thomas to mean that transmission by facsimile was an acceptable method of returning a Form LIBC-760. Nevertheless, the Board denied Claimant relief because he had not provided the date on which he signed the form. Claimant then petitioned for this Court's review.

On appeal, [4] Claimant raises two issues. First, he argues that the Board has conceded that it is permissible to return Form LIBC-760 by facsimile. Accordingly, the facsimile provides the date. Second, Claimant contends that the Board erred in holding that the Form LIBC-760 was defective. Even though Claimant did not provide the date on which he signed the form, a date was established by the facsimile.

We begin with a review of the applicable provisions of the Act. Section 311.1 of the Act states as follows:

(a) If an employe files a petition seeking compensation under section 306(a) or (b) or is receiving compensation under section 306(a) or (b), the employe shall ...

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