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An order granting a penalty petition, based on a failure to make payment, is vacated when there was no finding as to whether proper notice of correct address was given and no determination was made whether the employer acted with reasonable diligence.

January 1, 2011
Allegis Group and Broadspire v. WCAB (Coughenaur); 977 C.D. 2010; filed October 20, 2010; by Senior Judge Friedman

The claimant filed a penalty petition for late payment of a settlement that was part of an approved Compromise and Release Agreement. The decision approving the settlement was circulated on October 17, 2008, and the settlement payment was made on December 10, 2008. However, the original check was sent to the wrong address. The workers' compensation judge granted the penalty petition and ordered a 35 percent penalty. The workers' compensation judge also found as a fact that the failure to have the check issued on time caused a severe hardship to the claimant. The Appeal Board affirmed the workers' compensation judge's decision. The Commonwealth Court, however, vacated the decision. According to the court, the record contained no evidence that the claimant ever notified the employer of an address change. The court also concluded that, if that was not the case, the employer did not violate the Act because the employer could not have avoided mailing the check to the wrong address. The case was remanded to the workers' compensation judge for new Findings of Fact and Conclusions of Law.

Case Law Alert, 1st Qtr 2011

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