Two’s Company, Three’s a Crowd . . . IAB Rules on Fund Interference in PFR
Today, we welcome guest blogger Steve Morrow of Rhoades & Morrow to share with us the outcome of “that Fund case” which recently presented itself in a consolidation of two pending PFR cases involving the same legal issue of “Can the Fund unilaterally cease Fund TTD prior to full adjudication of a PFR where the Claimant has admittedly returned to some level of work activity?” See Steven Krebs v David Horsey & Sons, IAB#1485457 (9/7/21) (ORDER) consolidated w/ Kenneth Levis v. Harry Cassell Inc., IAB#1473779 (9/7/21) (ORDER).
From Steve:
In the attached case, the Workers’ Compensation Fund unilaterally stopped paying benefits to claimants who returned to work on a part-time basis. In addition, the Fund filed a Motion to Dismiss Employer’s Petition for Review contending that the claimants had to file their own Petitions seeking temporary partial disability benefits.
The IAB denied the Fund’s motion, finding issues still remain to be litigated (even when someone has returned to work) and it also ordered the Fund to immediately pay retroactive TPD benefits to our clients.
Given the similar issues involved, I argued for one client and David Boswell did a great job presenting argument on behalf of his client. Elissa Greenberg and Andy Carmine represented the carriers, noting the parties were not in an adversarial posture, except with regard to the Fund…….
From my vantage point as legal pundit:
Talk about trying to commandeer the litigation. Talk about flying in the face of the Waddell v Chrysler. Talking about kissing off the Waddell burden of proof on a PFR. Just as employers/carriers are not allowed to unilaterally engage in self-help when it comes to ceasing the payment of TTD, so should the Fund be held to a similar standard. The attempt to dismiss a statutorily-supported 2347 Petition for Review pre-hearing was yet another overstep in the role of the Fund in this litigation. Thankfully the Board recognized all this and put the Fund in its place.
Irreverently Yours,
Cassandra Roberts
Foot Note:
Subsequent to the issuance of the cases under discussion which were presented to the Board and Hearing Officer Baum, a decision on the same issue was released by Hearing Officer Mack in a case which actually preceded Krebs/Levis to Hearing and which cites Krebs/Levis in reaching the same outcome. See Kristopher Small Sr. v. Fieldstone Golf Club, IAB# 1492931 (9/15/21) (Order).
Thank you Nick Bittner for bringing this to my attention.
