Opinion
No. 1432 C.D. 2011
04-30-2012
Jacqueline Fields, Petitioner v. Workers' Compensation Appeal Board (City of Philadelphia), Respondent
ORDER
AND NOW this 2nd day of August, 2012, IT IS HEREBY ORDERED that the above-captioned opinion filed April 30, 2012, shall be designated OPINION rather than MEMORANDUM OPINION and it shall be reported.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION BY JUDGE LEADBETTER
Jacqueline Fields (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed, as modified, the decision of a Workers' Compensation Judge (WCJ) awarding Claimant specific loss benefits and 10% statutory interest on the awards. Claimant challenges the Board's decision to modify the WCJ's determination of the statutory interest accrual dates under Section 406.1(a) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. § 717.1(a).
The relevant facts are undisputed. While employed by the City of Philadelphia (Employer) as a prison guard, Claimant sustained work-related injuries to her left shoulder, arm, wrist and hand on January 11, 2003, and received weekly total disability benefits of $450.59 pursuant to WCJ Bachman's order of December 19, 2003. On August 17, 2006, WCJ Slom granted Claimant's review petition and added a partial tear of the left rotator cuff, a left brachial plexus traction injury and reflex sympathetic dystrophy of the left upper extremity as part of her work injuries. On February 19, 2008, WCJ Walsh granted Claimant's claim petition and awarded her 410 weeks of benefits for a specific loss of her left arm as of August 30, 2006. Claimant was also awarded a 20 week healing period. WCJ Walsh ordered Employer to pay the award at such time that she would no longer receive total disability benefits for her work injuries separate and apart from the specific loss of the left arm.
In a review petition filed on June 5, 2008 and amended later, Claimant sought benefits for specific losses of both legs. In support, Claimant presented the deposition testimony of William H. Jeffreys, M.D., a board-certified neurologist, taken on October 8, 2008. Dr. Jeffreys, who first examined Claimant on April 19, 2006, opined that she suffered from reflex sympathetic dystrophy of the left arm and both legs. He further opined that for all practical intents and purposes, Claimant had lost the use of the right leg as of his January 18, 2007 examination and the left leg as of his July 9, 2007 examination and that all of her work injuries had resolved into specific losses of the left arm and both legs.
In a decision circulated on September 25, 2009, WCJ Baldys accepted the testimony of Dr. Jeffreys and Claimant as credible and found that all of Claimant's 2003 work injuries had resolved into specific losses of her left arm and both legs. WCJ Baldys granted the review petition and awarded Claimant 410 weeks of specific loss benefits for the right leg, 410 weeks of specific loss benefits for the left leg and a 25-week healing period.
An employee, who is awarded two or more specific loss benefits, is entitled to only a largest single healing period, 25 weeks of a healing period for the specific loss of a leg in this case. Section 306(d) of the Act, 77 P.S. § 513(25).
However, at the hearing Claimant's counsel advised the WCJ that, although Employer had been paying total disability benefits, Claimant had been receiving only fifty or sixty dollars per week because the benefits were subject to an offset for her disability pension. Because the offset applies only to disability benefits, but not to specific loss benefits, interest was due on the differential after the time her total disability had resolved into specific loss. Therefore, WCJ Baldys gave Employer a credit for the disability benefits paid, but awarded Claimant 10% statutory interest on the award for the left arm beginning November 21, 2006, 21 days after the October 31, 2006 assignment of the claim petition to WCJ Walsh; on the award for the right leg beginning July 1, 2008, 21 days after the June 10, 2008 assignment of the review petition to WCJ Baldys; on the award for the left leg beginning October 29, 2008, 21 days after Dr. Jeffreys' October 8, 2008 deposition testimony; and, on the award of the healing period beginning July 1, 2008.
Section 204 of the Act, 77 P.S. § 71.
WCJ Baldy amended the initial order to change the interest accrual date on the award of specific loss benefits for the right leg from July 1, 2009 to July 1, 2008.
Employer appealed WCJ Baldys' decision, challenging his determination of the statutory interest accrual dates. Employer argued that interest on all of the specific loss benefit awards was not due and payable until October 29, 2008, 21 days after it first had notice through Dr. Jeffreys' October 8, 2008 deposition testimony that all of Claimant's work injuries had resolved into specific losses of her left arm and legs. The Board modified the interest accrual dates to October 8, 2008, stating: "Claimant had evidence that all of her disabling injuries had resolved into specific losses as of October 8, 2008 and specific loss benefits were payable after total disability benefits ended." Board's Opinion at 5. Claimant appealed, challenging the Board's modification of the interest accrual dates.
Because this appeal involves only the legal question regarding the statutory interest accrual date, our review is plenary. Sekulski v. Workers' Comp. Appeal Bd. (Indy Assocs.), 828 A.2d 14 (Pa. Cmwlth. 2003).
Section 406.1(a) of the Act provides: "The first installment of compensation shall be paid not later than the twenty-first day after the employer has notice or knowledge of the employe's disability. Interest shall accrue on all due and unpaid compensation at the rate of ten per centum per annum." (Emphasis added.) The purpose of statutory interest is not to penalize an employer but to provide additional compensation to a claimant for the delay during which the employer has use of funds due to the claimant. B.P. Oil Co. v. Workmen's Comp. Appeal Bd. (Patrone), 648 A.2d 1324 (Pa. Cmwlth. 1994).
A claimant is permitted to receive specific loss benefits for the work injury for which he or she is receiving total disability benefits only when total disability has revolved into a specific loss. City of Phila. v. Workmen's Comp. Appeal Bd. (Barclay), 601 A.2d 449 (Pa. Cmwlth. 1991). Consequently, specific loss benefit payment may not begin until after payment of total disability payments ends. Section 306(d) of the Act, 77 P.S. § 513(25); Turner v. Jones & Laughlin Steel Corp., 479 Pa. 618, 389 A.2d 42 (1978); Coker v. Workers' Comp. Appeal Bd. (Duquesne Light Co.), 856 A.2d 257 (Pa. Cmwlth. 2004). Clearly, the WCJ's designation of three separate dates from which to run interest was erroneous because total disability benefits would continue to be payable until all of Claimant's injuries had resolved into specific losses.
Section 306(d) of the Act provides in relevant part:
Where, at the time of the injury the employe receives other injuries, separate from these which result in permanent injuries enumerated in clause (c) of this section [Section 306(c), 77 P.S. § 513], the number of weeks for which compensation is specified for the permanent injuries shall begin at the end of the period of temporary total disability which results from the other separate injuries.
In Barclay, cited by Claimant, the parties stipulated that although the claimant lost the use of both legs as of the 1966 work injury, the employer was not placed on notice of the specific loss claim until he filed the claim petition on February 8, 1988. Based on the stipulation, the Court concluded that interest on specific loss benefits began to accrue on February 29, 1988, 21 days from the filing of the claim petition. See also Acme Mkts., Inc. v. Workmen's Comp. Appeal Bd. (Hopiak), 562 A.2d 419 (Pa. Cmwlth. 1989) (holding that interest was payable beginning 21 days after the filing of the claim petition seeking specific loss benefits); Hutz v. Workmen's Comp. Appeal Bd. (Stefanak & Son), 540 A.2d 1380 (Pa. Cmwlth. 1988), aff'd, 525 Pa. 361, 580 A.2d 757 (1990) (concluding that interest on the specific loss benefits began to accrue 21 days after the filing of the modification petition).
Subsequently, this Court clarified the employer's obligation to pay statutory interest under Section 406.1(a) of the Act. In Carlettini v. Workers' Compensation Appeal Board (City of Philadelphia), 714 A.2d 1113 (Pa. Cmwlth. 1998), the Court held that the employer must have notice of compensable injury for the employer to be on notice of the employee's disability and to trigger the employer's obligation to pay compensation. The Court held that interest on the claimant's disfigurement benefits began to accrue on the date that the WCJ viewed the claimant's scars for the second time at the hearing. In USX Corporation v. Workers' Compensation Appeal Board (Way), 754 A.2d 64 (Pa. Cmwlth. 2000), the Court rejected the Board's conclusion that interest on the hearing loss benefits accrued beginning 21 days after the claimant's filing of the claim petition, holding that interest began to accrue on the date that the deposition of the claimant's medical witness was taken. The Court reasoned:
Although the filing of the petition constituted notice to Employer that Claimant was seeking compensation benefits for his loss of hearing, it did not establish Claimant's right to compensation. Therefore, pursuant to Carlettini, only when Claimant had evidence that he had a permanent, work-related loss of hearing was compensation due. Until that time Employer would not know if the loss would be compensable. Only from that point forward would interest become due on any unpaid compensation.Id. at 67 (emphasis added). Under Carlettini and USX Corporation, therefore, the statutory interest begins to accrue when the claimant presents evidence of a compensable injury.
In this matter, Employer had notice that all of Claimant's work-related injuries had resolved into specific losses of her left arm and legs when Dr. Jeffreys so testified on October 8, 2008. Until that time, payment of the specific loss benefits was not due and payable. Hence, the statutory interest on the unpaid specific loss benefits began to accrue on October 8, 2008. Because the Board correctly determined the statutory interest accrual date, its order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 30th day of April, 2012, the order of the Workers' Compensation Appeal Board in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge