M. Thomas v. WCAB (Temple University Hospital) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mariamma Thomas, Petitioner v. Workers Compensation Appeal Board (Temple University Hospital), Respondent BEFORE: : : : : : : : : No. 392 C.D. 2008 SUBMITTED: May 23, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: July 9, 2008 Mariamma Thomas petitions this court for review of a Workers Compensation Appeal Board (Board) order that affirmed, with a slight modification, the decision of a Workers Compensation Judge (WCJ) granting in part Thomas petition for reinstatement of compensation benefits. On September 30, 1992, Thomas suffered a low back injury while working for Employer, Temple University Hospital. Thereafter, Employer issued a notice of compensation payable, pursuant to which Thomas began receiving total disability benefits. On June 22, 2006, the WCJ approved a Compromise and Release Agreement (C&R) between the parties. Before this C&R was approved, however, Employer suspended Thomas benefits for failure to complete certain forms to Employer s satisfaction. Specifically, while Thomas was in India,1 Employer s third-party administrator forwarded, on January 6, 2005, certain Bureau forms to Thomas counsel for Thomas signature. These forms included LIBC-750, Employee Report of Wages and Physical Condition, LIBC-756, Employee s Report of Benefits, and LIBC-760, Employee Verification of Employment, Self-Employment or Change in Physical Condition. When she returned from vacation, Thomas counsel forwarded the forms to Thomas daughter, Reina, with a suggestion that she fill in the answers and sign her mother s name with permission. These forms, signed Marianna Thomas by Reina Thomas were sent to Employer s counsel on January 31, 2005. Thereafter, according to the parties stipulation, Employer s counsel advised Thomas counsel that forms signed by someone other than the claimant were unacceptable. The stipulation then states: 7. During the interval between February 3 and March 3, 2005, Mariamma Thomas personally signed the forms and mailed them to the address on Temple counsel s letterhead. However, counsel was in the process of moving his office during this time and has indicated that she did not receive anything from India. It is requested that counsel review the file and confirm the non-receipt. 8. By letter dated March 2, 2005, Mrs. Thomas counsel faxed a copy of the originally signed forms to Mr. White who received the fax on March 2, 2005. Temple reinstated benefits effective March 4, 2005. Exhibit AC-1. The stipulation does not make clear whether Thomas herself faxed an additional copy to her counsel on March 2 or if counsel finally located the 1 Thomas apparently went to India to visit her ill mother. Employer s counsel became aware of her absence at a hearing on January 3, when counsel requested Thomas current address. 2 previously mailed forms and faxed them to Employer. Nonetheless, the WCJ found that Mariamma Thomas eventually signed the verification forms and forwarded same by fax on March 2, 2005 to TUH counsel. See exhibit AC-8 (N.T., p. 21) and this finding is not challenged by claimant in this appeal. Finding of Fact No. 3(f), WCJ s decision (No. 11240, circulated March 13, 2007) at 3. Because Employer did not receive the certifications signed by Thomas until March 2, Employer suspended her benefits from February 9, 2005, to March 3, 2005. The approved C&R did not settle the litigation surrounding this discrete period of time that Employer suspended Thomas benefits. On March 9, 2007, after a number of hearings in this matter, the WCJ granted in part Thomas petition for reinstatement of compensation benefits. The WCJ granted Thomas petition as of March 3, 2005, noting that he found the record (including the parties stipulation of facts) somewhat unclear as to whether Thomas actually received indemnity benefits on that date. In this regard, the WCJ reasoned: [R]eceipt of the forms on March 2, 2005 required TUH to reinstate indemnity benefits as of March 3, 2005. The Court, however, elects not to impose penalties if indeed Ms. Thomas failed to receive benefits for March 3, 2005 due to the de minimus [sic] nature of the violation. Discussion section, WCJ s decision (No. 11240, circulated March 13, 2007) at 4. The WCJ further dismissed Thomas claim for indemnity benefits from February 9, 2005, through March 2, 2005. On appeal, the Board affirmed, with the modification that, because Thomas sent the requisite forms to Employer by fax on March 2, 2005, and Employer received them that day, the benefits should have been reinstated as of March 2, 2005. Board decision (No. A07-0693, filed February 7, 2008) at 7. Thomas has now filed a petition for review with this Court, seeking full benefits, 3 with interest, for 21 disability days; remand to the WCJ for evaluation of a penalty and/or assessed fees; and . . . litigation costs. Thomas brief at 11.2 Thomas contends that, under a remedial statute such as the Workers Compensation Act (Act),3 her daughter Reina s signature, executed on her behalf, should have sufficed on the LIBC forms as the signature of her duly authorized agent. She further argues that, because the parties stipulated that Reina signed the forms pursuant to her authorization, it is clear that she gave Reina a limited power of attorney which is completely consistent with Section 311.1(d) of the Act, 77 P.S. § 631.1(d).4 Thomas brief at 8. She argues, therefore, that a suspension of her benefits was unwarranted. Section 311.1 of the Act provides: (a) If an employe files a petition seeking compensation under section 306(a) or (b) or is receiving compensation under section 306(a) or (b), the employe shall report, in writing, to the insurer the following: (1) If the employe has become or is employed or self-employed in any capacity. 2 According to Thomas, the amount at issue is apparently $1495.00 (less the two days that the Board subsequently ordered that Thomas be paid indemnity benefits), plus interest. Thomas brief at 2. 3 Workers Compensation Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708. 4 Section 311.1 of the Act was added by the Act of June 24, 1996, P.L. 350. The parties stipulated as follows: 4. Reina obtained the information and signature authorization, signing the forms with her mother s name but noting that she (Reina) was doing the signing. The forms were sent to Mrs. Thomas counsel s office and he transmitted the forms to Temple s attorney by letter dated January 31, 2005 (a Certificate of Mailing is available). Exhibit AC-1. 4 (2) Any wages from such employment or selfemployment. (3) The name and address of the employer. (4) The amount of wages from such employment or self-employment. (5) The dates of such employment or selfemployment. (6) The nature of such employment or selfemployment. (7) Any other information which is relevant in determining the entitlement to or amount of compensation. (b) The report referred to in clause (a) must be made as soon as possible but no later than thirty days after such employment or self-employment occurs. (c) An employe is obligated to cooperate with the insurer in an investigation of employment, self-employment, wages and physical condition. (d) If an employe files a petition seeking compensation under section 306(a) or (b) or is receiving compensation under section 306(a) or (b), the insurer may submit a verification form to the employe either by mail or in person. The form shall request verification by the employe that the employe s status regarding the entitlement to receive compensation has not changed and a notation of any changes of which the employe is aware at the time the employe completes the verification, including employment, self-employment, wages and change in physical condition. Such verification shall not require any evaluation by a third party; however, it shall include a certification evidenced by the employe s signature that the statement is true and correct and that the claimant is aware of the penalties provided by law for 5 making false statements for the purpose of obtaining compensation. (e) 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. However, the use of the verification form by the insurer and the employe s completion of such form do not relieve the employe of obligations under clauses (a), (b) and (c). (f) The insurer may require the employe to complete the verification form at intervals of no less than six months. (g) 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. (Emphasis added). Despite Thomas assertions, the record does not indicate that she gave her daughter Reina legal power of attorney over her personal affairs. More to the point, the language of the statute is clear that the verification form shall include a certification evidenced by the employe s signature that the statement is true and correct and that the claimant is aware of the penalties provided by law for making false statements for the purpose of obtaining compensation. . . . 77 P.S. § 311.1(d) (emphasis added). The statute also provides that [t]he employe is obligated to complete accurately the verification form. . . . 77 P.S. § 311.1(e) (emphasis added). Even assuming that Thomas daughter had full authorization to act on her mother s behalf and sign her name, such a signature would not make clear the level of the daughter s knowledge of the facts averred nor be capable of binding the mother to those averments under penalty of perjury. Simply put, a power of 6 attorney authorizes one to act on another s behalf, but does not empower her to know what is in the other s mind or memory, nor to swear that the other knows particular facts to be true. In spite of the remedial nature of the Act, the signature that was required on the LIBC forms was Thomas own, not that of her daughter.5 Moreover, given today s technological advances, Thomas fails to explain why she did not complete the Bureau forms personally until after the forms filled out by Reina were deemed unacceptable by Employer. As the WCJ noted: [A] world served by fax machines, overnight delivery services and documents scanned in and forwarded by computers provide reliable and inexpensive means of communication and transmission of documents. Discussion section, WCJ s decision (No. 11240, circulated March 13, 2007) at 4. Obviously, Thomas was able to complete and return the forms herself once she realized that she had little choice but to do so. Under these circumstances, Thomas absence from her home does not excuse her from complying with the requirements of the Act. Thomas next argues that, at a minimum, her benefits should be reinstated as of February 15, 2005, because, she asserts, that is when she sent to Employer s counsel, by courier, the forms that she herself had signed and verified. However, as the WCJ found: Counsel for Thomas also suggests the completed and signed forms were forwarded from India several weeks prior to receipt by Employer counsel on March 2, 2005. However, no evidence regarding mailing or 5 Even though Thomas compares her case to that of a hypothetical employee who authorizes his wife to sign all required documents on his behalf and who then is unexpectedly rendered comatose after surgery, clearly, there would be no legitimate factual or legal comparison between such an incapacitated person and Thomas. We also reject Thomas comparison of herself to an injured worker who has lost the use of his hands. 7 receipt indicates TUH counsel received the documents prior to March 2, 2005. 6 Discussion section, WCJ s decision (No. 11240, circulated March 13, 2007) at 4. Section 123.502 of Title 34 of the Pennsylvania Code provides in pertinent part: (c) The employee shall complete and return form LIBC760 to the insurer within 30 days of receipt of the form. .... (f) Upon receipt of the completed verification form, the insurer shall reinstate the workers compensation benefits for which the employee is eligible. The insurer shall provide written notice to the employee, employee s counsel, if known, and the Department, on Form LIBC763, Notice of Reinstatement of Workers Compensation Benefits, that the employee s workers compensation benefits have been reinstated due to the return of the completed verification form. The notice shall further indicate the date the verification form was received by the insurer and the date of reinstatement of the workers compensation benefits. (g) Employees are not entitled to payments of workers compensation during periods of noncompliance with subsection (c). 34 Pa. Code § 123.502(c), (f) and (g) (emphasis added). See also Section 311.1 of the Act, 77 P.S. § 631.1. In Farance v. Workers Comp. Appeal Bd. (Marino Brothers, Inc.), 774 A.2d 785 (Pa. Cmwlth. 2001), we affirmed a Board order upholding a WCJ s decision that no penalty was warranted where the employer suspended the 6 Employer s counsel contends that, because he was moving his office around that time, he did not receive these forms until approximately two weeks later. The proof of delivery section on the senders copy of the courier s invoice is unsigned and contains no confirmation of delivery. See Exhibit AC-6. 8 claimant s benefits until the LIBC-760 form was completed and returned to the insurance carrier. In this instance, Employer suspended benefits until its counsel received the requisite forms by fax on March 2, 2005. Employer reinstated benefits upon receipt of these forms even though Thomas counsel faxed the forms to Employer s counsel rather than Employer s insurer as the law requires. We therefore reject Thomas alternative argument that her benefits should be reinstated prior to March 2, 2005. Thomas also argues that the record is devoid of evidence that Employer transmitted a LIBC-762 form prior to suspending her benefits in accordance with 34 Pa. Code § 123.502(e), and, therefore, the suspension is improper. However, nothing in the certified record reflects that this argument was raised before the WCJ or the Board. In addition, this issue has not been raised in Thomas petition for review and is not fairly comprised therein. Therefore, it is waived, and we will not decide it. See M & B Inn Partners, Inc. v. Workers Comp. Appeal Bd. (Petriga), 940 A.2d 1255, 1258 (Pa. Cmwlth. 2008). Order affirmed.7 _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 7 Given the result we reach today, we need not consider Thomas further arguments that this case should be remanded for reconsideration of the WCJ s refusal to impose a penalty as well as for a finding of unreasonable contest. 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mariamma Thomas, Petitioner v. Workers Compensation Appeal Board (Temple University Hospital), Respondent : : : : : : : : No. 392 C.D. 2008 ORDER AND NOW, this 9th day of July, 2008, the order of the Workers Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge

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