Opinion
No. 1830 C.D. 2012
02-07-2013
Peter R. Heugel, Petitioner v. Workers' Compensation Appeal Board (U.S. Airways), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Peter R. Heugel (Claimant) petitions this Court for review of the Workers' Compensation Appeal Board's (Board) September 4, 2012 order affirming the Workers' Compensation Judge's (WCJ) decision denying Claimant's Reinstatement and Penalty Petitions, dismissing Claimant's Review Petition and granting U.S. Airways' (Employer) Petition for Physical Exam. Essentially, there are three issues before the Court: (1) whether the Board erroneously determined that Claimant's Employee Verification Forms were untimely returned; (2) whether it was an error of law for the WCJ to fail to award penalties for the improper suspension of Claimant's benefits; and (3) whether the Board erroneously interpreted the Impairment Rating provisions of the Workers' Compensation Act (Act). We affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Claimant was employed by Employer on January 10, 2004 when he suffered work-related injuries. As a result of his injury, Claimant received workers' compensation benefits at the rate of $690.00 per week. On July 7, 2010, Claimant filed a Petition to Review Compensation Benefits (Review Petition). The Review Petition did not state the basis for the review; however, Claimant alleged Employer should be required to pay for certain prescription medications. Claimant's Review Petition was resolved by the parties, and Employer agreed to cover Claimant's prescription for Lunesta. Employer suspended Claimant's benefits on February 8, 2011 for failure to timely return his Employee Verification Forms. On February 14, 2011, Claimant's benefits were reinstated. On February 16, 2011, Claimant filed a Petition to Reinstate Compensation Benefits (Reinstatement Petition) as of February 7, 2011.
On February 16, 2011, Claimant also filed a Petition for Penalties (Penalty Petition). The Penalty Petition alleged that Employer violated the terms of the Act by improperly suspending Claimant's compensation benefits despite Claimant's timely return of his Employee Verification Forms. On March 9, 2011, Employer filed a Petition for Physical Examination of an Employee (Physical Examination Petition), wherein, Employer requested that Claimant undergo a physical examination by Dr. Michael Jurenovich, the physician the Workers' Compensation Bureau (Bureau) designated to perform Claimant's Impairment Rating Evaluation (IRE). See Reproduced Record (R.R.) at 074.
On December 8, 2011, the WCJ dismissed Claimant's Review Petition by stipulation, denied Claimant's Reinstatement and Penalty Petitions, and granted Employer's Physical Examination Petition. Claimant appealed to the Board. On September 4, 2012, the Board affirmed the WCJ's decision. Claimant appealed to this Court.
"This Court's scope and standard of review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed." World Kitchen, Inc. v. Workers' Comp. Appeal Bd. (Rideout), 981 A.2d 342, 346 n.5 (Pa. Cmwlth. 2009).
Claimant first argues that the Board erroneously determined that Claimant's Employee Verification Forms were untimely returned. Specifically, Claimant contends he returned the forms within 30 days of receipt as required by the Act, thus they were timely filed. We disagree.
Section 311.1(e) of the Act provides: "The employe is obligated to complete accurately the verification form and return it to the insurer within thirty days of receipt by the employe of the form. . . ." 77 P.S. § 631.1(e). Section 311.1(g) of the Act further states:
Section 311.1 of the Act was added by Section 6 of the Act of June 24, 1996, P.L. 350.
If the employe fails to return the completed verification form within thirty days, the insurer is permitted to suspend compensation until the completed verification form is returned. The verification form utilized by the insurer shall clearly provide notice to the employe that failure to complete the form within thirty days may result in a suspension of compensation payments.77 P.S. § 631.1(g).
As evidenced by the affidavit of Employer's third-party administrator's claims examiner, Terra McKee (McKee), McKee mailed Employee Verification Forms to Claimant and his attorney on January 6, 2011. On February 7, 2011, she prepared the Notice of Suspension for Failure to Return the forms, but did not send it until after conferring with Claimant's counsel. On February 10, 2011, McKee sent the Notice suspending Claimant's benefits as of February 8, 2011. McKee received the signed forms on February 14, 2011, at which time Claimant's benefits were reinstated.
R.R. at 097-098.
According to the Notice of Suspension, Claimant's benefits were suspended as of February 7, 2011. R.R. at 084-085.
Claimant argues that the thirty days should have begun to run on the date he received the forms, not the date the forms were sent to him. However, Claimant did not present any evidence regarding what date he received the forms. Claimant's only evidence concerning this issue was a letter from his attorney dated February 7, 2011, wherein, Claimant's counsel enclosed the signed Employee Verification Forms, and an email from his attorney dated February 10, 2011, in response to an email from Employer's counsel stating the Employer Verification Forms had not yet been received, to which Claimant's counsel advised: "My paralegal will follow up on forms ASAP." R.R. at 115.
R.R. at 077-079.
R.R. at 115.
The WCJ specifically found McKee's affidavit credible and convincing as to the date the forms were sent, January 6, 2011, and the date the signed forms were received, February 14, 2011. "It is well established that the WCJ is the ultimate fact finder and is empowered to determine witness credibility and evidentiary weight." Shannopin Mining Co. v. Workers' Comp. Appeal Bd. (Sereg), 11 A.3d 623, 627 (Pa. Cmwlth. 2011) (quoting Griffiths v. Workers' Comp. Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000)). Based on this determination, the WCJ found Employer met its burden to prove its entitlement to suspend Claimant's benefits from February 7, 2011 through February 13, 2011. "Section 422(a) [of the Act, 77 P.S. § 834(a),] does not permit a party to challenge or second-guess the WCJ's reasons for credibility determinations. Unless made arbitrarily or capriciously, a WCJ's credibility determinations will be upheld on appeal." Shannopin Mining Co., 11 A.3d at 627 (quoting Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006) (citation omitted)). We find no reason to disturb these findings. Accordingly, the Board properly determined that Claimant's Employee Verification Forms were untimely filed.
Claimant next argues that it was an error of law for the WCJ to fail to award penalties for the improper suspension of Claimant's benefits. Particularly, Claimant contends he is entitled to payment of benefits for the week his benefits were discontinued plus penalties for the delay in receiving said benefits given the complete lack of evidence to support the suspension of benefits. We disagree.
A WCJ's power to assess penalties is set forth in Section 435 of the Act, 77 P.S. § 991, which provides in relevant part:Hough v. Workers' Comp. Appeal Bd. (AC&T Companies), 928 A.2d 1173, 1179 (Pa. Cmwlth. 2007). Here, Claimant asserts that Employer violated the Act by suspending his benefits for failure to timely return his Employee Verification Forms. However, as explained above, the Board properly found that Employer met its burden of proving its entitlement to suspend Claimant's benefits from February 7, 2011 through February 13, 2011. In addition, since Claimant did not present any evidence as to the date he received or returned the forms, he could not meet his burden of proving that Employer violated the Act. Accordingly, the WCJ properly denied Claimant's Penalty Petition.
(d) The department, the board, or any court which may hear any proceedings brought under this act shall have the power to impose penalties as provided herein for violations of the provisions of this act or such rules and regulations or rules of procedure[.]
Added by the Act of February 8, 1972, P.L. 28.
Lastly, Claimant argues that the Board erroneously interpreted the Impairment Rating provisions of the Act. Expressly, Claimant contends that under the Act, the parties must attempt to agree on a physician to perform the required impairment evaluation before Employer can request the Bureau to assign a physician. We disagree.
Section 306(a.2)(1) of the Act provides:
Added by Section 4 of the Act of June 24, 1996, P.L. 350. --------
When an employe has received total disability compensation pursuant to clause (a) for a period of one hundred four weeks, unless otherwise agreed to, the employe shall be required to submit to a medical examination which shall be requested by the insurer within sixty days upon the expiration of the one hundred four weeks to determine the degree of impairment due to the compensable injury, if any. The degree of impairment shall be determined based upon an evaluation by a physician who is licensed in this Commonwealth, who is certified by an American Board of Medical Specialties approved board or its osteopathic equivalent and who is active in clinical practice for at least twenty hours per week, chosen by agreement of the parties, or as designated by the [Bureau], pursuant to the most recent edition of the American Medical Association 'Guides to the Evaluation of Permanent Impairment.'77 P.S. § 511.2(1) (emphasis added). This Court has held that:
Section 306(a.2)(1) [of the Act] clearly states that, where the goal of an employer's request is an IRE intended to determine a claimant's degree of impairment as provided for in that Section[,] . . . agreement of the parties or Bureau designation are the sole and exclusive avenues for physician selection.Lewis v. Workers' Comp. Appeal Bd. (Wal-Mart Stores, Inc.), 856 A.2d 313, 319 (Pa. Cmwlth. 2004). Clearly, there is no requirement that the parties attempt to agree on a physician prior to Employer requesting the Bureau to select a physician. Accordingly, the Board properly interpreted the Act.
For all of the above reasons, the Board's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 7th day of February, 2013, the Workers' Compensation Appeal Board's September 4, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge