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The recent Pennsylvania Supreme Court decision in US Airways v. WCAB (Rumbaugh) is an important victory for injured workers. The decision clarified the issues presented when an employee challenges a notification of suspension filed by his or her employer pursuant to Section 413(c) of the Pennsylvania Workers’ Compensation Act. The Supreme Court properly placed the burden on the employer to establish its entitlement to the continued suspension of benefits after the notification of suspension has been challenged. The court protected the due process rights of claimants by limiting an employer’s ability to unilaterally suspend the payment of indemnity benefits. This decision will make it much easier for claimants’ practitioners to counsel clients who return to work. Section 413(c) of the act provides in pertinent part as follows: “Notwithstanding any provision of this act, an insurer may suspend compensation during the time the employee has returned to work at his prior or increased earnings upon written notification of suspension by the insurer to the employee and the department, on a form prescribed by the department for this purpose. The notification of suspension shall include an affidavit by the insurer that compensation has been suspended because the employee has returned to work at prior or increased earnings. The insurer must mail the notification of suspension to the employee and the department within seven days of the insurer suspending compensation.” It is important to note that Section 413(c) provides an injured worker with 20 days to challenge the notification of suspension and force a special supersedeas hearing before a workers’ compensation judge. If the notification is not challenged within 20 days, the employer’s unilateral filing of the notification of suspension has the effect of a fully executed supplemental agreement that justifies the suspension of claimant’s benefits. (See Section 413(c)(2).) The Commonwealth Court decision in Sheridan v. WCAB (Anzon Inc. and State Workers’ Insurance Fund) establishes that an employer’s obligation to provide indemnity benefits is only extinguished by: the submission of an argument or supplemental agreement as provided in Section 408 of the Workers’ Compensation Act; the submission of a final receipt, as provided in Section 434 of the act; the filing of a petition which operates as an automatic supersedeas, as provided for in Section 413(a) and (c) of the act; an interlocutory order by a workers’ compensation judge granting discretionary supersedeas, as provided for in Section 413(a) of the act; or a final order by a workers’ compensation judge terminating the employer’s obligation. As a result, a claimant that does not challenge the notification of suspension within 20 days (or signs a supplemental agreement suspending benefits), and then needs to stop working, must file a petition to reinstate benefits and may have to endure months without pay while the case is litigated. The employer is able to force litigation because the unchallenged notification of suspension has been recognized as one of the documents that justify the suspension of benefits, as shown in Sheridan. The Supreme Court decision in Rumbaugh clarified the issues to be resolved by a workers’ compensation judge when claimant challenges a notification of suspension. The Supreme Court has now clearly established “that the only relevant questions in the special supersedeas hearing on the claimant’s challenge are whether: the claimant has indeed returned to work without a wage loss as the insurer has averred; she returned as of the date the insurer issued the notice of suspension and started suspending benefits; and she is still currently working without a wage loss.” If claimant challenges the notification of suspension and is not working or making the same wages, the challenge must be granted and claimant must receive benefits. Thereafter, if the employer wants to pursue a suspension of benefits, it must file the appropriate petition and request supersedeas while the claimant is being paid. The clarity provided by the Supreme Court in Rumbaugh will assist claimants’ practitioners in counseling injured workers when they decide to attempt a return to work following a period of total disability. The notification must be challenged so the claimant can have time to see how he feels after returning to work. This will give the injured worker time to decide whether he will be able to keep working. In fact, it may be prudent for claimants to delay the filing of the challenge for 16 to 18 days to maximize the time available to determine whether he or she is actually fit to return to work at no loss of wages. The issues presented by a challenge petition are clearly established so that claimants who attempt a return to work will know exactly how long that they can try to work before the notification of suspension becomes a closing document. Obviously, this is good news for claimants and claimants’ counsel. Michael G. Dryden is the head of the workers’ compensation department at Willig, Williams & Davidson and co-chairs the Philadelphia Bar Association’s workers’ compensation committee. He can be reached at 215-656-3645 or by e-mail at [email protected] If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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