With all the world focusing on the COViD-19 pandemic, the Pennsylvania Commonwealth Court recently decided the matter of Communication Test Design v. Workers’ Compensation Appeal Board (Simpson), 196 C.D. 2019 (April 20), which probably went unnoticed by most, but which represents a troubling development in defining the circumstances under which a notice of temporary compensation payable (NTCP) converts to an NCP. When an NTCP is filed, it often means the injured worker will receive 89 days of workers’ compensation benefits along with a subsequent denial for any number of reasons—mostly manufactured. Tragically, the NTCP is filed almost exclusively these days, thwarting the original intent of the amendments to the Workers’ Compensation Act, which created the vehicle that was to enable a claimant to get paid, at least temporarily, for a truly questionable claim. Now, almost invariably, claims with no apparent defense are subject to the NTCP to enable the claims adjuster to have undue control over a situation for no legitimate reason other than risk management.

It is against this backdrop that the importance of the conversion of the NTCP has grown. While often referenced, it bears reading Section 406.1 of the act, which deals with the circumstances under which an NTCP converts. The section provides in pertinent part:

  • The employer and insurer shall promptly investigate each injury reported or known to the employer and shall proceed promptly to commence the payment of compensation due either pursuant to an agreement upon the compensation payable or a notice of compensation payable as provided in Section 407 or pursuant to a notice of temporary compensation payable as set forth in subsection (d).
  • In any instance where an employer is uncertain whether a claim is compensable under this act or is uncertain of the extent of its liability under this act, the employer may initiate compensation payments without prejudice and without admitting liability pursuant to a notice of temporary compensation payable as prescribed by the department. (2)(ii) the payment of temporary compensation entitles the claimant to a maximum of ninety (90) days of compensation;
  • Payments of temporary compensation may continue until such time as the employer decides to controvert the claim.
  • If the employer ceases making payments pursuant to a notice of temporary compensation payable, a notice in the form prescribed by the department shall be sent to the claimant and a copy filed with the department, but in no event shall this notice be sent or filed later than five days after the last payment.
  • If the employer does not file a notice under paragraph (5) within the 90-day period during which temporary compensation is paid or payable, the employer shall be deemed to have admitted liability and the notice of temporary compensation payable shall be converted to a notice of compensation payable.