Where an employer was on notice of a claimant’s work injury and did not timely issue an NCP as required by the Act, there was no reasonable basis to contest the claim petition and an award of attorney fees under § 440(a) of the Act should have been made.

The claimant sustained a work injury to his left arm on February 27, 2016, and gave the employer notice of the injury on March 7, 2016. The employer did not issue a Notice of Compensation Denial or an NCP within 21 days of notice, but they paid medical expenses. On August 17, 2017, the claimant filed a claim petition. The employer answered, denying all the petition’s allegations.

At an initial hearing before the judge, the judge asked the employer whether they denied the claimant had a puncture wound. Employer’s counsel said no and that two medical bills had been paid. The judge also asked whether the employer would have the claimant examined, and the employer’s counsel again said no due to the lack of treatment received since April of 2016.

The claimant testified in connection with the claim petition and also submitted a report from a medical expert. The claimant identified a March 10, 2016, letter he received from the employer’s claims administrator, notifying the claimant that they had received a report of the work injury and that the claim was under review. At a final hearing held in March of 2018, the employer indicated a willingness to stipulate to the injury based on the conclusions reached by the physician who prepared the medical report for the claimant. After the hearing, the employer issued a Medical Only NCP for a punctured left upper arm.

The judge granted the claim petition but did not award penalties or an unreasonable contest attorney fee. The claimant appealed to the Appeal Board. The Board affirmed, and the claimant appealed to the Commonwealth Court.

The claimant argued to the court that it was not reasonable for the employer to wait until he submitted his medical report before it issued the Medical Only NCP and that the employer issued the document long after it was required to do so. The claimant maintained that the judge should have determined that unreasonable contest attorney fees were warranted.

The court agreed. In doing so, they noted that the employer knew of the claimant’s injury and paid for his medical bills but never issued an NCP, forcing the claimant to hire an attorney, file a petition and engage in litigation. The court also pointed out that the employer filed an answer denying all of the allegations of the claim petition, despite (1) having notice of the injury, (2) the employer’s doctors treating the claimant for the injury, (3) the employer’s claims administrator acknowledging notice of the injury, and (4) the employer paying medical bills for the injury. Ultimately, the employer presented no contrary evidence to contest the claim petition, was willing to stipulate to the claimant’s expert’s report and, finally, issued a Medical Only NCP that recognized the injury as a punctured left upper arm. The court rejected the employer’s argument that its contest was reasonable because the claimant sought to establish a more extensive injury in the claim petition than the injury for which it had notice. The case was remanded to the judge for an award of reasonable attorney fees.

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