In a Pennsylvania Workers’ Compensation case, wage loss checks and settlement checks are to be paid timely. However, insurance companies love skirting the rules, if they can get away with it. The following language is from a letter brief recently submitted to a Workers’ Compensation Judge in a late check case of ours.
Pursuant to the Order, the Petition was granted and the Employer was ordered to pay $20,000 to Claimant and $5,000 to her counsel. (See Exh. J-1). Under Section 428 of the Workers’ Compensation Act (“Act”), 77 P.S. §921, the Employer was obligated to make these payments within 30 days from the date of the February 2 Order. Thomas v. W.C.A.B. (Delaware Cnty.), 746 A.2d 1202, 1204 (Pa. Commw. Ct. 2000) (“An employer violates Section 428 of the Act, 77 P.S. § 921, if the employer does not begin to make payments within thirty days of the date on which its obligation to pay arises.”) (citation omitted). See also Graphic Packaging, Inc. v. W.C.A.B. (Zink), 929 A.2d 695, 700 (Pa. Commw. Ct. 2007) (“We have held that an employer violates the Act if it does not begin to make payments within thirty days of the date on which its obligation to pay arises.”) (citation omitted). Yet, without any offered justification, the Employer did not make payment until March 15, 2023, which was 41 days after its obligation to pay arose. Even then, the Employer made payment in the amount of only $2,000. It was not until the following day, on March 16, 2023, that the Employer sent a check for the remaining $18,000 owed to Claimant. (See Exh. C-2, C-3 and D-1).
Pursuant to Section 435(d)(i) of the Act, 77 P.S. §991(d)(i), Claimant is entitled to a penalty up to 50% of the awarded amount for the Employer’s unreasonable and excessive “[f]ailure to commence payments within 30 days of the date on which the obligation to pay ar[ose].” Thomas, 746 A.2d at 1204-1205. The imposition of such a penalty is within the discretion of the WCJ; but such discretion is not unfettered, as factors extraneous to the violation itself may not be considered. See Lakomy v. WCAB (DER & PIMCO), 720 A.2d 492 (Pa.Cmwlth. 1998); Croman v. WCAB (Township of Marple), 706 A.2d 408 (Pa.Cmwlth. 1998).
Timely payment of the awarded amount was critical to Claimant’s financial well-being, and the Employer’s delay of almost two weeks caused her unnecessary financial burden. The fact that Claimant suffered financial harm as a result of the unjustified delay provides compelling reason for Your Honor to increase the penalty imposed upon the Employer. Yet even if the Employer’s unreasonable delay had not caused economic harm to Claimant, that fact is irrelevant to the imposition of penalties. “[T]he Act does not require that a claimant suffer economic harm before penalties are imposed; instead, the Act permits the imposition of penalties to give the Board the power to assure compliance with the Act.” Palmer v. W.C.A.B. (City of Philadelphia), 850 A.2d 72, 78 (Pa.Cmwlth. 2004).
Here, although Defendant was ordered to pay Claimant $20,000 on February 2, 2023, and so was required under the Act to make payment by March 4, 2023, it did not actually make full payment until March 16, 2023. Defendant’s delay was unjustified, unexplained, and unreasonable.
For the reasons set forth herein, Claimant respectfully requests that Your Honor grant the present Penalty Petition and award Claimant 50% of the delayed payment, as well as reasonable quantum meruit fees. See Thomas, 746 A.2d at 1206 (awarding reasonable counsel fees related to the penalty petition and counsel’s efforts to enforce the employer’s compliance with the Workers’ Compensation Act). Thank you for your consideration of this matter.
Stay tuned to see what result the Judge awards the injured worker. And if your weekly wage loss check is late, give us a call and we can fight for you too.