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I met up with an old friend and former colleague last week who asked me if I had read the Commonwealth Court’s decision in Graphic Packaging Inc. v. WCAB (Zink), decided July 24 ( Zink II). Yes, I said, and opined that employers should be careful when delaying benefits to war veterans when the country was in a state of war. Nevertheless, my friend asked, what do you think about the employer’s argument that the court’s earlier order in Zink I, decided July 10, 2003, put no actual obligation on the employer to pay benefits to the claimant? His remarks caused me to think about the question, because in looking back at Zink I, the order of the court was not expressly stated; and, therefore, the court’s dictate was left to the interpretation of the employer who paid a heavy price for misunderstanding its responsibilities in this case. Orders have a special meaning for old veterans and cavalrymen like me, because the military spends a lot of time and effort teaching its leaders at all levels of command how to draft clear and concise orders which leave nothing to interpretation. That’s because poorly drafted orders often lead to confusion. Confusion results in misinterpretation and mistakes. Misinterpretation and mistakes almost always end in disaster. In fact, in a life-or-death situation, all lawful orders are meant to be carried out without question or debate. That is why leaders are constantly drilled on the preparation of clear and concise orders that carry out the commander’s intent. Unfortunately, history is full of examples where poorly drafted orders lead to misfortune, and this unhappy situation is not merely limited to the military. In Zink I, the claimant, a former Vietnam veteran suffered an aggravation of a pre-existing post-traumatic stress disorder (PTSD) when his employer at the behest of the claimant’s union rotated work schedules and shifts in September 1995. Prior to the change in policy, the claimant was permitted to work in a shaft that would accommodate his pre-existing PTSD. As a consequence of the change in work schedules, the claimant suffered a relapse of his pre-existing condition resulting in disability. After some negotiating between the employer’s human resource department and the claimant’s union, the claimant was exempted from a rotating work shift and offered a permanent assignment in his accommodated position. Unfortunately, the claimant did not respond to the employer’s accommodation. The claimant’s petition was initially dismissed and subsequently remanded. On remand, a second WCJ determined that while the claimant had a pre-existing psychiatric condition that was aggravated by changes in the employer’s work-schedule policies, he concluded that the claimant was not entitled to benefits because there was no abnormal working condition. The Commonwealth Court reversed and held that evidence found credible by the WCJ established that the claimant was temporary disabled as of July 24, 1996. The court, therefore, opined that the case be remanded “for an appropriate award” based on the WCJ’s finding that the claimant could return to work by January 1997 due to a stabilization of his condition. Accordingly, the Commonwealth Court ordered that the case be remanded “for purposes consistent with the foregoing opinion.” The employer filed a petition for allowance of appeal, but did not request supersedeas. The state Supreme Court denied the employer’s petition, and the matter was remanded to a WCJ for an appropriate award. The claimant filed a penalty petition asserting that the employer failed to make compensation payments within thirty days of the Commonwealth Court’s July 10, 2003, order in Zink I. In compliance the Commonwealth Court’s remand order, the WCJ determined that the claimant was entitled to temporary total disability benefits from July 24, 1996, through Dec. 24, 1996, when one of the claimant’s treating physicians credibly testified that the claimant could resume employment in his accommodated work schedule. The WCJ also found and concluded that the employer was in violation of the Act for failing to pay compensation benefits, and awarded a 40 percent penalty. Both parties appealed the decision that was affirmed by the appeal board, and affirmed in part and reversed in part by the Commonwealth Court. In defense of the penalty, the employer argued that the order from the Commonwealth Court in Zink I placed no obligation upon it to pay benefits because the order called for the WCJ to determine an appropriate award. In short, the employer interpreted the court’s order as placing no obligation upon it to pay any benefits until there was a determination of an appropriate award by the WCJ . The Commonwealth Court rejected the employer’s argument stating that its opinion had established that the claimant suffered temporary total disability as of July 24, 1996. Accordingly, since the employer had presented a statement of wages reflecting an applicable compensation rate, benefits should have been initiated as of the determination date of disability notwithstanding its remand order for a determination of an appropriate award. The court, therefore, held that the WCJ’s assessment of penalty was appropriate. The court also determined that while the employer offered the claimant his accommodated work schedule as of Aug. 20, 2006, there was no evidence presented that the position remanded available as of Dec. 24, 1996, when one of the claimant’s treating physicians opined that the claimant could return to work. Accordingly, the court reversed that part of the WCJ’s decision suspending the claimant’s benefits as of Dec. 24, 2006, even though the court’s opinion in Zink I concluded that the claimant “could return to work by January 1997 due to a stabilization of his condition.” The Zink cases provide defense practitioners with a hard lesson on the consequences of misinterpretation. As with the military, writing orders is never an easy task, and should never be taken for granted. In Zink I, the court issued an order that it assumed would be correctly followed based upon its opinion as a whole. Unfortunately, assumption should never be an element of any order because it leaves too much to the imagination of those tasked to follow it. Therefore, when faced with such a situation, there are certain steps which defense practitioners may want to consider to avoid sanctions and the embarrassment that accompany such sanctions. Admittedly, these suggestions may not be completely satisfactory, but they may prevent a similar fate suffered by the employer in Zink II. When faced with a vague or confusing order, consider a petition for supersedeas. In Zink II, the employer elected not to request supersedeas as part of its petition for allowance of appeal to the Supreme Court. That decision played heavily upon the Commonwealth Court’s opinion to affirm the WCJ’s assessment of penalty. Filing a supersedeas request may not be a panacea, but at least with a denial of supersedeas you may have a remedy through the supersedeas fund if all or part of the amount paid was not, if fact, payable; particularly, if the overpayment was due to a loosely worded court order. When in doubt, always remember the humanitarian purposes of the act and pay the benefits; particularly, if the court determines that benefits are due and owing the claimant based upon a date certain disability. The worst that can happen to an employer who underpays what is believed to be an “appropriate award,” is an amelioration of a potential penalty. In a best-case scenario, an employer may avoid an assessment of penalty if the WCJ exercising discretion, determines that the employer, acting in a void, attempted to comply with a faulty order in good faith. Finally, if the court order makes no sense at all, consider applications for rehearing or reconsideration. They may not be granted, but you will never know unless you request it. This brings me to my final point on orders. When I was growing up, sometime in the last century, we had to memorize Tennyson’s Charge of the Light Brigade in school. As we all know, Tennyson’s poem had to do with a misinterpretation of an order resulting in the needless slaughter of some very fine cavalrymen. After the battle, there was plenty of blame to go around, but that didn’t help the dead and dying 600. DANIEL V. DILORETTO practices in the workers’ compensation law practice area with Harvey Pennington in Philadelphia. He has developed extensive experience in the defense of workers’ compensation litigation, as well as related employment issues such as the Americans with Disabilities Act, and the Family and Medical Leave Act. He can be contacted at [email protected] .

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