Parker v. Pepsico
Sedgwick Claims Management Services
May 27, 2015
Back Return to Work Total Incapacity Notice of Controversy 14-Day Rule
Summary from the Troubh Heisler Attorneys
Parker injured his back at work in 2000 but then returned to his regular job. He reinjured his back at work in 2006, and was out of work entirely. PepsiCo paid him total incapacity benefits on the 2006 injury until they filed a 21-day Discontinuance in 2008, which Parker did not challenge because PepsiCo continued to pay him total incapacity benefits for the 2000 injury. Parker and PepsiCo then settled the 2000 injury in October 2011. The opinion does not indicate why the 2006 injury was not included in the settlement.
Following the settlement on the 2000 injury, Parker filed a Petition for Restoration on the 2006 injury. Hearing Officer Jerome denied the petition on the merits, but determined that, because PepsiCo failed to file a Notice of Controversy within 14 days after Parker filed the petition, PepsiCo owed Parker total incapacity benefits from the date the petition was filed. PepsiCo argued that a NOC was not required because PepsiCo had initially paid benefits within 14 days of the original injury, and because the 21-day Certificate of Discontinuance adequately informed Parker that PepsiCo disputed his claim. The appellate panel held that the 14-day rule still applied to Parker’s Petition for Restoration.
The Appellate Division's decision is not clear about what was claimed in the Petition for Restoration, but some of the language in the decision indicates that the Petition probably claimed benefits from the date of the 2011 settlement of the 2000 injury claim, rather than from the date of the 21-day discontinuance in 2008 (although the MacAdam firm's practice when filing petitions is often to claim benefits from the date of injury). The hearing officer is quoted as stating that "The Employee did not file a Petition for Review after the 2008 suspension." The Petition for Restoration was described as "a new claim for benefits, rather than a continuation of his prior claim." Therefore, the outcome might have been different if the employee had filed a Petition for Review challenging the 2008 discontinuance, rather than a Petition for Restoration asserting a new claim for benefits beginning three years after the discontinuance was filed.
Until now, some attorneys thought that a Notice of Controversy was not necessary in response to a Petition for Review challenging a 21-day discontinuance. Because the Parker decision is not clear about what was claimed in the Petition for Restoration, an appropriately cautious approach would be to file a Notice of Controversy in response to any petition claiming incapacity benefits, including a Petition for Review challenging a 21-day discontinuance.
The Board's Petition for Restoration form includes a "Notice" stating that no written response is required. As the Parker decision makes clear, however, a Notice of Controversy must be filed if the employer intends to contest any claim for incapacity benefits. We would urge the Board to correct the "Notice" language on the form to remove its misleading and inconsistent advice.