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Aldridge v. Workers' Comp. Appeal Bd. (Kmart Corp.)

Commonwealth Court of Pennsylvania

January 26, 2015

Sherry Aldridge, Petitioner
v.
Workers' Compensation Appeal Board (Kmart Corporation), Respondent

Submitted September 26, 2014

For Petitioner: David F. Stern, Philadelphia.

For Respondent: Ashley E. Drinkwine, Media.

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge.

OPINION

Page 862

P. KEVIN BROBSON, JUDGE

Petitioner Sherry Aldridge (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed the decision of a Workers' Compensation Judge (WCJ), which denied and dismissed Claimant's claim petition and penalty petition and granted the termination petition filed bye Claimant's employer, Kmart Corporation (Employer). We affirm the Board's order.

Claimant sustained a work-related injury on March 7, 2011, during the course of her employment as a warehouse worker. On May 9, 2011, Employer issued a Notice of Temporary Compensation Payable--Medical Only (May 2011 NTCP), by which Employer agreed to pay for Claimant's medical treatment for her alleged work injuries, identified as left knee, left shoulder, and left hand contusions. (Reproduced Record (R.R.) at 34a.) Employer also indicated on the May 2011 NTCP that the ninety-day injury-investigation period granted to employers under Section 406.1(d)(6) of the Workers' Compensation Act (Act)[1] began the day after Claimant sustained her injuries--March 8, 2011--and ended on June 5, 2011. On June 13, 2011, the Bureau of Workers' Compensation (Bureau) issued a Notice of Conversion of Temporary Compensation Payable to Compensation Payable regarding the

Page 863

May 2011 NTCP, based upon the passing of the ninety-day period, and, thus, the May 2011 NTCP was converted by operation of law to an NCP (medical only). (R.R. at 35a.)

The primary subject of this appeal, however, relates to a second NTCP Employer issued on August 4, 2011 (August 2011 NTCP). The record does not clearly indicate the reason why Employer issued the August 2011 NTCP. Based upon our reading of the record, however, it appears that Employer somehow became aware of the possibility that Claimant was suffering from conditions in the nature of a left labrum and bicep tear and unable to work because of the injuries. (R.R. at 36a.) This Court can only speculate as to how Employer became aware of these conditions, but the possibility exists that Employer was concerned that the conditions were related to or arose from the identified work-related contusion injuries and recognized that the active NCP provided only for medical benefits and not for wage-loss benefits. Thus, it appears that Employer, either out of concern for Claimant's loss of wages or out of some abundance of caution regarding its potential liability, issued the August 2011 NTCP so that it could have an opportunity to investigate the nature of these other conditions.[2]

With regard to Claimant's potential labrum and bicep conditions, Employer indicated on that NTCP that the ninety-day period for those conditions began on July 20, 2011, and ended on October 17, 2011. The August 2011 NTCP initially included a check mark on the form suggesting that it, like the May 2011 NTCP, was a " medical only" NTCP. That form, however, also (inconsistent with a " medical only" NTCP) listed a weekly compensation rate for Claimant. Employer issued a second " corrected" NTCP (hereafter we will refer to this corrected NTCP as the August 2011 NTCP) that same day, apparently indicating that it did not intend for the NTCP filed earlier that day to be a " medical only" NTCP. (R.R. at 37a.) Unlike the earlier NTCP Employer issued that day, the corrected form did not have a check mark indicating that Employer intended to provide compensation only for medical treatment.

On September 15, 2011, Employer issued a Notice Stopping Temporary Compensation (NSTC). (R.R. at 40a.) Employer checked a box on that Bureau form indicating that Employer " decided not to accept liability, and attached is a notice of Workers' Compensation Denial. If you believe you suffered a work-related injury, you will be required to file a claim petition with the Bureau of Workers' Compensation in order to protect your future rights." ( Id. )

Employer attached a Notice of Compensation Denial (NCD) to the NSTC, indicating that Employer was declining to pay wage loss benefits to Claimant based upon its determination that Claimant had " not suffered a loss of wages as a result of an already accepted injury." (R.R. at 41a.) The NCD, however, inconsistent with the August 2011 NTCP, identified the alleged conditions as the contusion injuries for which Employer was already liable based upon the ...


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