IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank Martz Coach Company, :

Petitioner :

:

v. : No. 1555 C.D. 2015

: Submitted: March 24, 2016

Workers’ Compensation Appeal :

Board (Avila), :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: April 13, 2017

Frank Martz Coach Company (Employer) petitions for review of an 

adjudication of the Workers’ Compensation Appeal Board (Board) that granted 

penalties to Julio Avila (Claimant). In doing so, the Board affirmed the decision of 

the Workers’ Compensation Judge (WCJ) that a Supplemental Agreement by 

which Employer agreed to pay Claimant total disability benefits, unless or until 

modified by order of a WCJ, precluded Employer from thereafter issuing a Notice 

of Compensation Denial. Holding that Employer’s unilateral termination of 

compensation benefits violated the Workers’ Compensation Act,1the Board 

affirmed the WCJ’s decision to award penalties. Concluding that the record is 

inadequate to conduct appellate review, we vacate and remand.

On January 19, 2013, Claimant sustained a work injury. On February 

5, 2013, Employer issued a Notice of Temporary Compensation Payable (NTCP) 

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
2

that described Claimant’s work injury of January 19, 2013, as a lumbar strain that 

occurred when “[Claimant] went to pull the latch for the engine compartment panel 

and strained his lower back.” Reproduced Record at 3a (R.R. __).2 Employer 

began paying Claimant compensation benefits at the rate of $824.84 per week. 

Employer’s NTCP stated that the 90-day temporary compensation period began on 

January 24, 2013, and would end on April 23, 2013. 

On March 12, 2013, Claimant and Employer entered into a

“Supplemental Agreement for Compensation for Disability as Permanent Injury,”

which contained several terms relevant to this appeal. R.R. 5a-6a. First, Claimant 

agreed to a reduction of disability benefits from February 11, 2013, through 

February 25, 2013, during which period he worked in a light duty position. 

Second, Employer agreed to resume the payment of total disability on February 28,

2013, when his work injury recurred. Finally, Employer agreed to pay total 

disability benefits into the future for an “uncertain” number of weeks. R.R. 6a. 

On April 22, 2013, Employer issued a Notice Stopping Temporary 

Compensation (NSTC) and a Notice of Compensation Denial (NCD). Employer 

did so for the stated reason that the medical information provided by Claimant was 

inadequate to establish a work injury. In response, on April 26, 2013, Claimant 

filed a penalty petition, contending that Employer violated the Act by unilaterally 

terminating his disability compensation. The penalty petition asserted that the 90-

day-period of temporary compensation expired on April 19, 2013, because 

Claimant was injured on January 19, 2013. Thus, Employer’s NTCP converted 

 

2 Because this case turned entirely on the legal significance of Employer’s agreement to pay 

Claimant disability compensation in a Supplemental Agreement, there is no evidentiary record 

on Claimant’s job title, or when the injury was reported.
3

automatically to an NCP on April 19, 2013, making Employer’s NCD of April 22, 

2013, untimely. Claimant sought an immediate reinstatement of disability 

compensation and an award of penalties. 

The WCJ convened a hearing on May 28, 2013. The WCJ began the 

hearing by marking as exhibits filings that had been made with the Bureau of 

Workers’ Compensation (Bureau). Exhibit No. 2 was the Supplemental 

Agreement, signed by Claimant and Employer’s claims representative.3 R.R. 5a6a. Both Claimant’s counsel and Employer’s counsel stated they did not know 

about the Supplemental Agreement. Claimant then amended his penalty petition to 

add the contention that the Supplemental Agreement precluded Employer from 

unilaterally terminating compensation. 

Employer’s counsel responded with two points. First, Employer

argued that although Claimant was injured on January 19, 2013, he continued to 

work. On January 24, 2013, Claimant took a vacation day.

4

 Employer argued that 

the 90-day duration of the NTCP did not begin until January 24, 2013. Second, 

Employer stated that because it had just learned of the Supplemental Agreement, 

its significance was unclear. Employer asked for time to research the issue.

The WCJ gave the parties two weeks to brief the significance of the 

Supplemental Agreement. The WCJ stated that should the Supplemental 

Agreement be found to be controlling, then he would grant the penalty petition. If 

 

3 Other exhibits included the NTCP, Bureau Exhibit No. 1; the NSTC, Bureau Exhibit No. 3; and 

the NCD, Bureau Exhibit No. 4. 

4

These recitals cannot be confirmed or refuted because there is no evidentiary record. This is 

true for both Employer and Claimant.
4

not, he would schedule a hearing to take evidence on the question of when the 90-

day period of temporary compensation began. 

On June 17, 2013, the WCJ issued a decision granting Claimant’s 

penalty petition; striking Employer’s NSTC and the NCD; and reinstating total 

disability compensation to Claimant. The WCJ acknowledged that Employer’s

NTCP accepted liability for Claimant’s back injury only on a temporary basis. 

However, by executing the Supplemental Agreement, Employer fully accepted 

liability as of March 12, 2013. At that point, Claimant’s benefits could not be 

terminated unilaterally by Employer but only by agreement of the parties or order 

of a WCJ. Accordingly, the WCJ awarded a penalty equal to 30% percent of the 

outstanding compensation benefits as of the date of the order.

Employer appealed to the Board. It argued that the Supplemental 

Agreement was not controlling, as held by the WCJ. In support, Employer offered

a notice from the Bureau stating that the Supplemental Agreement was an 

“Improperly Filed Form.” R.R. 7a. The notice stated as follows:

Claim is in a temporary status. A Supplemental Agreement 

(LIBC-337) cannot be used to correct/amend a Notice of 

Temporary Compensation Payable (LIBC-501). A 

corrected/amended LIBC-501 must be submitted.

Id. 

The Board refused to consider the Bureau’s notice for the stated 

reason that it had not been presented to the WCJ and, thus, was not part of the 

certified record.

5

 In any case, the Board found the notice irrelevant. The Board 

 

5

The dissent argues that in “fairness,” the Board should have considered the Bureau’s notice. 

However, Employer did not appeal this ruling of the Board to this Court. 
5

held that Employer could not disavow the terms of the Supplemental Agreement 

simply because it filed the “wrong form.” The Board held that the Supplemental 

Agreement was binding unless and until it was modified by agreement of the 

parties or by an order of the WCJ. Because the Supplemental Agreement provided 

compensation “for uncertain weeks” into the future, Employer had admitted 

ongoing liability for Claimant’s back injury. The Board noted that the 

Supplemental Agreement should have been captioned as an Agreement for 

Compensation, but this had no bearing on the meaning and enforceability of the 

parties’ agreement.

6

 

Employer petitioned for this Court’s review. On appeal,7it raises one 

issue. It contends the Board erred as a matter of law in concluding that the 

Supplemental Agreement altered the provisional nature of Employer’s acceptance 

of liability for Claimant’s injury.

Employer argues that the Supplemental Agreement did not have the 

legal effect of an Agreement for Compensation. Under Section 406.1(d) of the 

Act,877 P.S. §717.1(d), an employer may pay compensation payments for 90 days 

 

6 Notably, the form for a “Supplemental Agreement” is identical to that for an “Agreement for 

Compensation,” except for the caption.

7

This Court’s review determines whether the findings of fact are supported by substantial 

evidence, whether Board procedures were violated, whether constitutional rights were violated or 

whether an error of law was committed. City of Philadelphia v. Workers’ Compensation Appeal 

Board (Brown), 830 A.2d 649, 653 n. 2 (Pa. Cmwlth. 2003). Our scope of review of questions 

of law is plenary, and our standard of review is de novo.

8

It provides, in relevant part:

(d)(1) In any instance where an employer is uncertain whether a claim is 

compensable under this act or is uncertain of the extent of its liability under this 

act, the employer may initiate compensation payments without prejudice and 

without admitting liability pursuant to a notice of temporary compensation 

payable as prescribed by the department.

(Footnote continued on the next page . . . )
6

without admitting liability. Employer contends that it did not intend the 

Supplemental Agreement to extend the benefit period in the NTCP. Rather, its

purpose was to return Claimant’s rate of compensation to “the rate set forth in the 

NTCP initially issued by [Employer].” Employer Brief at 15. Employer argues 

that it entered into the Supplemental Agreement solely to obtain Claimant’s 

agreement to a reduction in the disability payment set forth in the NTCP for three 

weeks in February. It entered the Supplemental Agreement to avoid penalties, 

which this Court awarded in Gereyes v. Workers’ Compensation Appeal Board 

(New Knight, Inc.), 793 A.2d 1017 (Pa. Cmwlth. 2002), because the employer had 

unilaterally reduced the rate of disability compensation stated in its NTCP.

At issue here is a penalty petition filed pursuant to Section 435(d)(i)

of the Act,

9

77 P.S. §991(d)(i). In a penalty petition, the claimant bears the burden

 

(continued . . . )

(2) The notice of temporary compensation payable shall be sent to the claimant 

and a copy filed with the department and shall notify the claimant that the 

payment of temporary compensation is not an admission of liability of the 

employer with respect to the injury which is the subject of the notice of temporary 

compensation payable. The department shall, upon receipt of a notice of 

temporary compensation payable, send a notice to the claimant informing the 

claimant that:

(i) the payment of temporary compensation and the claimant’s 

acceptance of that compensation does not mean the claimant’s 

employer is accepting responsibility for the injury or that a 

compensation claim has been filed or commenced;

(ii) the payment of temporary compensation entitles the claimant to 

a maximum of ninety (90) days of compensation[.]

Added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §717.1(d).

9

It states, in relevant part, as follows:

(d) The department, the board, or any court which may hear any proceedings 

brought under this act shall have the power to impose penalties as provided herein 

(Footnote continued on the next page . . . )
7

of proving that a violation of the Act has occurred. Shuster v. Workers’

Compensation Appeal Board (Pennsylvania Human Relations Commission), 745 

A.2d 1282, 1288 (Pa. Cmwlth. 2000). The WCJ concluded that Claimant met its 

burden.

The WCJ reasoned that in the Supplemental Agreement, Employer 

accepted liability for Claimant’s injury and, thus, it could not unilaterally terminate 

compensation. The WCJ explained as follows: 

Although [Employer] initially only provisionally accepted 

Claimant’s injury via a [NTCP], [Employer] subsequently 

accepted the claim fully by entering into the Supplemental 

Agreement. Pursuant to the terms of the Supplemental 

Agreement, [Employer has] accepted liability for a January 19, 

2013 work-related injury in the form of a lumbar strain, for 

which Claimant should be receiving temporary total disability 

benefits at the rate of $824.84 per week.

WCJ Decision at 2, Conclusion of Law No. 2. In affirming the WCJ, the Board 

relied upon Sharon Tube Company v. Workers’ Compensation Appeal Board 

(Buzard), 908 A.2d 929 (Pa. Cmwlth. 2006). 

In Buzard, the claimant, after having been awarded compensation, 

returned to work. Thereafter, the claimant suffered a recurrence of his injury. The

 

(continued . . . )

for violations of the provisions of this act or such rules and regulations or rules of 

procedure:

(i) Employers and insurers may be penalized a sum not exceeding 

ten per centum of the amount awarded and interest accrued and 

payable: Provided, however, That such penalty may be increased 

to fifty per centum in cases of unreasonable or excessive delays. 

Such penalty shall be payable to the same persons to whom the 

compensation is payable.

Added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §991(d)(i).
8

parties executed a supplemental agreement, acknowledging the claimant’s return to 

total disability benefits on July 28, 2003, when he left work. Several months later, 

the employer filed a modification petition, seeking to reduce the claimant’s 

benefits as of July 21, 2003, onward, based on the claimant’s alleged ability to 

work. In fact, the claimant did work the week of July 21, 2003. The claimant 

argued that because the supplemental agreement was dated July 28, 2003, the 

employer could not claim that he was able to work as of July 21, 2003. Employer 

argued that the agreement was dated to reflect the claimant’s last day of work, not 

because it believed that the claimant had grounds to leave work that day.

The Board rejected the employer’s argument, and this Court upheld 

the Board. Section 413(a) of the Act,

10 permits a modification only where there 

has been a change in a claimant’s condition “since the date of the agreement.” 

Buzard, 908 A.2d at 933 (emphasis in original). In so holding, we relied upon our 

Supreme Court’s construction of Section 413(a) of the Act, where it explained:

[I]n the case of an agreement or a notice of compensation 

payable, a petitioner has the burden of showing that the 

employe’s disability has changed after the date of the 

agreement or the notice of compensation payable.

 

10 It provides, in relevant part:

A workers’ compensation judge designated by the department may, at any time, 

modify, reinstate, suspend, or terminate a notice of compensation payable, an 

original or supplemental agreement or an award of the department or its workers’

compensation judge, upon petition filed by either party with the department, upon 

proof that the disability of an injured employe has increased, decreased, recurred, 

or has temporarily or finally ceased, or that the status of any dependent has 

changed. Such modification, reinstatement, suspension, or termination shall be 

made as of the date upon which it is shown that the disability of the injured 

employe has increased, decreased, recurred, or has temporarily or finally ceased, 

or upon which it is shown that the status of any dependent has changed[.]

77 P.S. §772.
9

Beissel v. Workmen’s Compensation Appeal Board (John Wanamaker, Inc.), 465 

A.2d 969, 971 (Pa. 1983) (internal citation omitted, emphasis in original). We also 

relied upon Section 407 of the Act which states, inter alia, that a supplemental 

agreement for the reinstatement or termination of compensation “shall be valid and 

binding unless modified or set aside as hereinafter provided.” 77 P.S. §731. In 

short, Buzard established that an employer is bound by the facts stated in the 

supplemental agreement, including the stated date of a claimant’s disability. 

Buzard, 908 A.2d at 933. 

Here, the Supplemental Agreement states, as fact, that “it is now 

hereby agreed between parties hereto that the status of the disability of the said 

employee changed” on February 28, 2013. R.R. 5a. An “x” is placed before 

“Recurred.” Id. The Supplemental Agreement states that Claimant will be paid 

$824.84 per week beginning on February 28, 2013, and then recites:

Compensation payable for ___UNK ___weeks ____days; or if 

the future period of disability is uncertain, then to continue at 

said rate until further changed by supplemental agreement, 

final receipt, or order of a Workers’ Compensation Judge, or 

the Workers’ Compensation Appeal Board.

Id. (emphasis added). The Supplemental Agreement recites that Claimant was paid 

disability compensation at a rate lower than that stated in the NTCP when he 

worked at a light duty job for three weeks in February. Id. at 6a. Finally, the 

Supplemental Agreement concludes as follows:

AS OF 02-18-13 CLAIMANT’S DISABILITY RECURRED 

TOTAL IN CHARACTER & COMPENSATION SHALL BE 

PAYABLE TO THE SAID EMPLOYEE AT THE RATE OF 

$824.84 PER WEEK FOR UNCERTAIN WEEKS.
10

We, the undersigned, agree upon the facts represented by the 

above-named employee and the[] above-named employer.

Id. Based on these provisions of the Supplemental Agreement, the Board held that 

Employer could neither stop the payment of compensation nor change the rate of 

compensation by the issuance of a NSTC or NCD.

An NTCP is not an admission of liability, and Employer was entitled 

to file a NSTC and a NCD any time before the expiration of the 90-day period of 

temporary compensation. It is also the case that Employer agreed “to continue [to 

pay compensation] at said rate until further changed by supplemental agreement, 

final receipt, or order of a [WCJ] or the [Board].” R.R. 5a. These four documents 

constitute the entire record in this case. 

As a consequence, we know nothing about the circumstances that led 

Employer’s claim adjuster to present the Supplemental Agreement to Claimant. 

Under Gereyes, an employer’s unilateral reduction in an NTCP’s stated disability 

rate violates the Act and subjects that employer to penalties.11 Employer contends 

that it intended the Supplemental Agreement, which gave Claimant’s after-the-fact 

imprimatur to the reduction for the period February 11, 2013, to February 25, 

2013, to avoid the Gereyes result. Claimant responds that Employer should have 

filled out the Supplemental Agreement to show that the reinstatement was only for 

a maximum of 90 days, if that had been its intent.

 

11 In Gereyes, 793 A.2d 1017, the employer issued a NTCP and paid the claimant full disability. 

Shortly thereafter, the claimant returned to work, and the employer unilaterally reduced the 

benefit amount set forth in the NTCP. We held that the employer violated the Act by unilaterally 

reducing the amount of compensation paid set forth in the NTCP without the claimant’s 

agreement and awarded penalties to the claimant. 
11

The absence of any evidentiary record impedes effective appellate 

review. The Supplemental Agreement was executed, apparently, without the 

knowledge or advice of either party’s counsel.12 It is not known why Employer did 

not file an amended NTCP (LIPC-501), as suggested by the Bureau.13 Likewise, 

the record does not support the Board’s supposition that Employer should have 

used the form for an Agreement for Compensation instead of a Supplemental 

Agreement. 

The intentions of either Claimant or Employer cannot be discerned 

solely from the Supplemental Agreement. Accordingly, we vacate the Board’s 

order and remand for the development of a record that can resolve whether the 

Supplemental Agreement was a mutual mistake of the parties and, if so, whether

Employer’s NCD was issued within the 90-day deadline.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge

 

12 Employer claims that the Supplemental Agreement was a mistake, without any evidence to 

support that claim. Upon remand, a full record needs to be made, not one that favors only 

Employer. Claimant may have a different version of the facts that led to the execution of the 

Supplement Agreement. 

13 Given this Court’s ruling in Gereyes, it is not clear that the Bureau’s suggestion relieves an 

employer of liability for a unilateral reduction in the rate of benefits set forth in a NTCP.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank Martz Coach Company, :

Petitioner :

:

v. : No. 1555 C.D. 2015

:

Workers’ Compensation Appeal :

Board (Avila), :

Respondent :

O R D E R

AND NOW, this 13th day of April, 2017, the order of the Workers’ 

Compensation Appeal Board, dated July 28, 2015, is hereby VACATED and the 

matter REMANDED for further proceedings consistent with the attached opinion.

Jurisdiction relinquished.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank Martz Coach Company, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Avila), : No. 1555 C.D. 2015

Respondent : Submitted: March 24, 2016

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

CONCURRING/DISSENTING OPINION

BY JUDGE COVEY FILED: April 13, 2017

Although I agree that the Workers’ Compensation (WC) Appeal Board’s 

(Board) order should be vacated and the matter remanded for the parties to present 

evidence with respect to the timeliness of the Notice Stopping Temporary 

Compensation (NSTC) and the Notice of Workers’ Compensation Denial (NCD), I 

respectfully dissent from the Majority’s directive that the matter be remanded to 

determine the intent of the parties with respect to the Supplemental Agreement for 

Compensation for Disability or Permanent Injury (Supplemental Agreement). The 

Majority concludes that a remand is warranted on that issue because Julio Avila 

(Claimant) “may have another version of the facts, i.e., that the ‘mistake’ was using 

the form for a supplemental agreement when the form for an agreement for 

compensation should have been used.” Majority Op. at 11 (emphasis added). I

disagree because: (1) Claimant did not raise that argument either before the Board or 
AEC - 2 -

this Court; and (2) the WC Act (Act),

1

and the WC Bureau’s (Bureau) rejection of the 

Supplemental Agreement support Frank Martz Coach Company’s (Employer)

contention. Thus, I believe this Court should vacate the Board’s order and remand 

the matter for the sole purpose of litigating the timeliness issue. 

On February 5, 2013, Employer issued a Notice of Temporary 

Compensation Payable (NTCP) accepting Claimant’s January 19, 2013 work-related 

injury described as a lumbar strain. Claimant began receiving temporary total 

disability benefits as of January 24, 2013 at the rate of $824.84 per week, based upon 

an average weekly wage of $1,237.20. Thereafter, Employer and Claimant entered 

into the March 12, 2013 Supplemental Agreement which reduced Claimant’s WC 

benefits to temporary partial disability at varying rates from February 11, 2013 

through February 27, 2013 due to Claimant’s return to work, with total disability 

recurring as of February 28, 2013, and Claimant returning to temporary total 

disability at the rate of $824.84 per week for uncertain weeks. Employer filed the 

Supplemental Agreement with the Bureau. On April 22, 2013, Employer issued an

NSTC and an NCD. Claimant’s benefits were terminated as of April 22, 2013.

On April 26, 2013, Claimant filed a penalty petition (Petition) alleging 

that, as of April 22, 2013, Employer violated the Act by unilaterally suspending 

Claimant’s benefits based on a late and incorrect denial of Claimant’s accepted 

work injury. The Workers’ Compensation Judge (WCJ) held a hearing on May 28, 

2013. Importantly, at the beginning of the hearing, the WCJ introduced the 

Supplemental Agreement. Neither Counsel was aware of the Supplemental 

Agreement’s existence as evidenced by the following exchange:

ATTORNEY VENTRE [Employer’s Counsel]:

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
AEC - 3 -

Judge, to be perfectly frankly [sic], I didn’t even know 

there was a Supplemental Agreement until you just 

mentioned it as one of the Bureau Exhibits. The only- - -

JUDGE HEMAK [WCJ]:

Here, I’ll let you take a look at it.

ATTORNEY VENTRE:

Please. May I approach?

JUDGE HEMAK:

You may. Claimant’s Counsel was unaware of it as well.

ATTORNEY VENTRE:

Thank you, Your Honor.

Reproduced Record (R.R.) at 27a-28a (emphasis added). Clearly, since Claimant’s

Counsel was unaware of the Supplemental Agreement’s existence, he was not 

arguing that Employer violated the Act based thereon.

2

 Because neither counsel 

was aware of the Supplemental Agreement, they were prepared to argue only what

was in the Petition which made no reference to the Supplemental Agreement. In the 

Petition, Claimant stated as the “reason[]” for his claim:

[Employer] has unilaterally suspended benefits based on a 

late and incorrect denial of Claimant’s accepted work 

injury. Claimant’s injury was accepted by way of [an 

NTCP]. The 90 days following which elapsed on April 19, 

2013. The denial was improperly issued and late, thus 

having no effect. Claimant is seeking an immediate 

reinstatement of benefits along with penalties and counsel 

fees.

Original Record (O.R.) at 2, Claimant’s Petition (emphasis added). In addition, the 

Petition gave Claimant the opportunity to state the basis for which WC benefits were 

 

2

The Majority states that Claimant “amended his [P]etition to add the contention that the 

Supplemental Agreement precluded Employer from unilaterally terminating compensation.” 

Majority Op. at 3. However, Claimant’s Counsel made no such amendment. Claimant’s Counsel 

merely argued that the Supplemental Agreement was controlling after acknowledging the 

Supplemental Agreement which he did not know existed before that time. See R.R. at 24a-25a.
AEC - 4 -

currently being paid, and provided the following options: “Notice of Compensation 

Payable [(NCP)] dated[;] Agreement dated[;] Supplemental Agreement dated[;] 

Judge’s Award dated[;] [and] Court order dated[.]” Id. (emphasis added). Claimant 

selected none of these options. 

The law is well-established that “[a] claimant who files a penalty petition

must first meet his initial burden of proving a violation of the Act or the attendant 

regulations occurred; the burden then shifts to the employer to prove the violation did 

not occur.” Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 38 A.3d 

1037, 1047 (Pa. Cmwlth. 2011). Here, Claimant asserts Employer violated the Act 

by unilaterally stopping his WC benefit payments.

Section 406.1 of the Act3provides, in relevant part:

(a) The employer and insurer shall promptly investigate 

each injury reported or known to the employer and shall 

proceed promptly to commence the payment of 

compensation due either pursuant to an agreement upon the 

compensation payable or a [NCP] as provided in [S]ection 

407 [of the Act] or pursuant to a [NTCP] as set forth in 

subsection (d), on forms prescribed by the [D]epartment [of 

Labor and Industry (Department)] and furnished by the 

insurer. The first installment of compensation shall be paid 

not later than the twenty-first day after the employer has 

notice or knowledge of the employe’s disability. Interest 

shall accrue on all due and unpaid compensation at the rate 

of ten per centum per annum. Any payment of 

compensation prior or subsequent to an agreement or [NCP] 

or a [NTCP] or greater in amount than provided therein 

shall, to the extent of the amount of such payment or 

payments, discharge the liability of the employer with 

respect to such case.

. . . .

(d)(1) In any instance where an employer is uncertain 

whether a claim is compensable under [the Act] or is 

 

3 Added by Section 3 of the Act of February 8, 1972, P.L. 25.
AEC - 5 -

uncertain of the extent of its liability under [the Act], the 

employer may initiate compensation payments without 

prejudice and without admitting liability pursuant to a 

[NTCP] as prescribed by the [D]epartment.

(2) The [NTCP] shall be sent to the claimant and a copy 

filed with the [D]epartment and shall notify the claimant 

that the payment of temporary compensation is not an 

admission of liability of the employer with respect to the 

injury which is the subject of the [NTCP]. The 

[D]epartment shall, upon receipt of a [NTCP], send a notice 

to the claimant informing the claimant that:

(i) the payment of temporary compensation and the 

claimant’s acceptance of that compensation does not mean 

the claimant’s employer is accepting responsibility for the 

injury or that a compensation claim has been filed or 

commenced;

(ii) the payment of temporary compensation entitles the 

claimant to a maximum of ninety (90) days of 

compensation; and

(iii) the claimant may need to file a claim petition in a 

timely fashion under [S]ection 315 [of the Act], enter into 

an agreement with his employer or receive a [NCP] from 

his employer to ensure continuation of compensation 

payments.

(3) Payments of temporary compensation shall commence 

and the [NTCP] shall be sent within the time set forth in 

clause (a).

(4) Payments of temporary compensation may continue 

until such time as the employer decides to controvert the 

claim.

. . . .

(6) If the employer does not file a notice under paragraph 

(5) within the ninety-day period during which temporary 

compensation is paid or payable, the employer shall be 

deemed to have admitted liability and the notice of 

temporary compensation payable shall be converted to a 

notice of compensation payable.
AEC - 6 -

77 P.S. § 717.1 (emphasis added). Pursuant to Section 121.7a(c) of the Bureau’s 

Regulations:

To modify a [NTCP], Form LIBC-501, an employer shall 

file an amended [NTCP], Form LIBC-501, with the Bureau 

during the 90-day temporary compensation payable period. 

The amended [NTCP], Form LIBC-501, shall be clearly 

identified as ‘Amended’ and may have only the insurer’s 

signature.

34 Pa. Code § 121.7a(c). Under Section 121.17(b) of the Bureau’s Regulations:

Termination, suspension, modification or other change in 

compensation may be accomplished by filing with the 

Bureau a Supplemental Agreement for Compensation for 

Disability or Permanent Injury, Form LIBC-337. A 

Supplemental Agreement for Compensation for 

Disability or Permanent Injury, Form LIBC-337, may be 

used to change an Agreement for Compensation for 

Disability or Permanent Injury, Form LIBC-336, a 

Supplemental Agreement for Compensation for 

Disability or Permanent Injury, Form LIBC-337, an 

Agreement for Compensation for Death, Form LIBC338, a Notice of Compensation Payable, Form LIBC-495, 

or an award. . . . 

34 Pa. Code § 121.17(b) (emphasis added). Finally, Section 407 of the Act states:

On or after the seventh day after any injury shall have 

occurred, the employer or insurer and employe or his 

dependents may agree upon the compensation payable to 

the employe or his dependents under [the Act] . . . .

Where payment of compensation is commenced without an 

agreement, the employer or insurer shall simultaneously

give [a NCP] to the employe or his dependent, on a form 

prescribed by the [D]epartment, identifying such payments 

as compensation under [the Act] and shall forthwith furnish 

a copy or copies to the [D]epartment as required by rules 

and regulations. . . .

All [NCPs] and agreements for compensation and all 

supplemental agreements for the modification, suspension, 

reinstatement, or termination thereof, and all receipts 
AEC - 7 -

executed by any injured employe of whatever age, or by 

any dependent to whom compensation is payable under 

[Section 307 of the Act, 77 P.S. § 561], and who has 

attained the age of sixteen years, shall be valid and binding 

unless modified or set aside as hereinafter provided.

77 P.S. § 731.

In the instant case, the WCJ concluded that Employer violated the Act 

by stopping Claimant’s benefits pursuant to the NSTC and NCD it filed. The WCJ 

reasoned that the Supplemental Agreement’s filing reflected Employer’s acceptance 

of liability and, thus, precluded Employer from thereafter filing the NSTC and NCD. 

However, based upon the above-quoted law, because Employer issued an NTCP, the 

filing of the Supplemental Agreement as described in Section 121.17(b) of the 

Bureau’s Regulations was improper. Rather, Employer should have filed an 

Amended NTCP pursuant to Section 121.7a(c) of the Bureau’s Regulations in order

to modify Claimant’s benefits for the period beginning February 11, 2013.

 Notwithstanding, the WCJ and the Board, recognizing that the 

Supplemental Agreement was not the proper form, accepted it and deemed it an 

Agreement for Compensation. Indeed, the Board stated:

Although it is acknowledged that the parties executed and

filed a [S]upplemental [A]greement rather than an 

[A]greement for [C]ompensation, we believe that giving 

effect to the parties’ [Supplemental] Agreement avoids 

what the courts have condemned as exalting form over 

substance, . . . and is consistent with the remedial purposes 

of the Act.

Board Dec. at 5. Rather than reject the form as improper, as the Bureau did which 

will be discussed below, or ascertain the parties’ intent, the WCJ and the Board 

reclassified the Supplemental Agreement as an Agreement of Compensation with no 

evidence to support this determination and also without any record evidence, and 

determined that the Employer accepted liability. However, the Supplemental 

Agreement’s terms do not evidence Employer’s acceptance of liability. Rather, 
AEC - 8 -

the Supplemental Agreement changed Claimant’s benefits because of his return to 

work. Thus, there is no substantiated evidence to support the determination that the 

Employer accepted liability for Claimant’s injury. 

In fact, the Bureau, recognizing that Employer filed the wrong form,

rejected the Supplemental Agreement. The Board opined:

While [Employer] further alleges that the Bureau rejected 

the filing[] of the Supplemental Agreement form as 

improper based on the procedural posture of this case, we 

cannot agree that the Bureau’s alleged rejection of the form 

could be dispositive, as [Employer] does not argue that the 

Supplemental Agreement lacked any necessary information, 

and as we understand from [Beissel v. Workmen’s

Compensation Appeal Board (John Wanamaker, Inc.), 465 

A.2d 969 (Pa. 1983)] and Bradley[4] that an employer’s 

execution and filing of the document with the Bureau are 

the actions upon which liability is based, and thus we reject 

[Employer’s] argument.

Board Dec. at 6 (footnote omitted). 

The Board’s reliance on Beissel is misplaced. The Beissel Court held 

that an NCP filed by an employer, who had an opportunity to and, in fact, did 

investigate the cause of an employee’s disability, constituted an admission of the 

employer’s liability and operated to preclude the employer, under the guise of a 

termination petition, from later contradicting in court precisely that which the 

employer admitted in its NCP. 

In addition, the Majority cites Sharon Tube Company v. Workers’ 

Compensation Appeal Board (Buzard), 908 A.2d 929 (Pa. Cmwlth. 2006), for its

conclusion: “an employer is bound by the facts stated in the supplemental agreement, 

including the stated date of a claimant’s disability.” Majority Op. at 9. However, the 

first paragraph of Section 413(a) of the Act authorizes an agreement to be modified or 

 

4 Because this is the only reference to Bradley in the Board’s decision, we have no further 

citation. 
AEC - 9 -

set aside based upon a material mistake of fact or law. See 77 P.S. § 771. Here, 

Employer asserted a mistake. 

Employer expressly acknowledged in its brief

that a Supplemental Agreement was not the appropriate 

Bureau document to utilize at that juncture. As the 

Bureau advised in its Notice of Rejected Document, in 

order to modify the terms of an NTCP[,] an Amended 

NTCP should have been issued. And in point of fact, 

[Employer] could have done so unilaterally. See [Section 

121.7a(c).3 of the Bureau’s Regulations,] 34 Pa. Code 

§[]121.7a(c).3.

Employer Br. at 15-16 (emphasis and italics added). 

With regard to the Bureau’s rejection of the Supplemental Agreement, 

the Board added: 

In this respect[,] we note that while [Employer] has attached 

a document to its [b]rief filed with the Board on [a]ppeal, 

which document it alleges was issued by the Bureau, we are 

unable to consider such a document as it is not included in 

the evidentiary record certified to the Board on [a]ppeal 

herein.

Board Dec. at 6 n.5. 

Notably, as Employer’s Counsel was not aware that a Supplemental 

Agreement existed prior to the WCJ hearing, he would have no reason to present the 

Bureau’s “NOTICE OF REJECTED DOCUMENT” (Notice), wherein the Bureau 

expressly rejected the Supplemental Agreement because it was an “Improperly Filed 

Form” as the “Claim is in a temporary status.” O.R. at 20. Under the circumstances, 

since the WCJ offered and admitted the Supplemental Agreement into the record on 

his own accord, as a matter of reviewing all pertinent evidence and fairness to the 

parties, the Board should also have considered the Bureau’s Notice. In fact, the 

Board did include the Notice in its original record filed with this Court, which it 
AEC - 10 -

certified to be “full, entire and complete as the same remains on file in the [Bureau].” 

O.R. at 40. The Notice expressly provided:

IMPORTANT: Claim is in a temporary status. A 

Supplemental Agreement . . . cannot be used to 

correct/amend a [NTCP]. A corrected/amended [NTCP] 

must be submitted.

To accept or deny liability, . . . you must timely file one 

of the following to stop temporary payments:

(1) A [NSTC], and a [NCD] . . . .

(2) A [NCP].

(3) An Agreement for Compensation . . . . 

O.R. at 20 (emphasis added). As the Bureau expressly directed in its Notice, 

Employer filed an NSTC and an NCD for which the WCJ penalized Employer.

More importantly, and as the Bureau specifically recognized, the filing 

of an improper form cannot convert the NTCP to an NCP when that document 

contains no acceptance of liability. Notwithstanding, the Supplemental Agreement 

cannot be the controlling document because the Bureau’s Regulations clearly provide 

that the Supplemental Agreement was procedurally improper. See 34 Pa. Code § 

121.7a(c), 34 Pa. Code § 121.17(b); see also 77 P.S. § 731.

‘[W]hen construing a statute, we must follow the letter of 

the statute if its words are unambiguous[.]’ Velocity 

Express v. Pa. Human Relations Comm’n, 853 A.2d 1182, 

1185 (Pa. Cmwlth. 2004) (quoting McClellan v. Health 

Maint. Org. of Pa., . . . 686 A.2d 801, 805 ([Pa.] 1996)).

We are mindful that, when ascertaining the General 

Assembly’s intent with regard to ambiguous 

statutory language, courts are to give strong 

deference to an administrative agency’s

interpretation of a statute that the agency is charged 

to enforce. However, 
AEC - 11 -

[courts] need not give deference to an agency

where its construction of a statute frustrates 

legislative intent. Therefore, although courts 

often defer to an agency’s interpretation of the 

statutes it administers, where . . . the meaning 

of the statute is a question of law for the court, 

when convinced that the agency’s

interpretation is unwise or erroneous, that 

deference is unwarranted.

Rosen v. Bureau of [Prof’l] [&] Occupational 

Affairs, State Architects Licensure Bd., 763 A.2d 

962, 968 (Pa. Cmwlth. 2000) (citation omitted), . . .

781 A.2d 150 ([Pa.] 2001). Such is the case here.

Velocity Express, 853 A.2d at 1185 (citations omitted).

Further, ‘[i]t is well settled law that an agency’s substantive 

regulations . . . have the force and effect of law.’ Eastwood 

Nursing [&] Rehab. Ctr. v. Dep’t of Pub. Welfare, 910 A.2d 

134, 142 (Pa. Cmwlth. 2006).

Dixon v. Workers’ Comp. Appeal Bd. (Medrad, Inc.), 134 A.3d 518, 526-27 (Pa. 

Cmwlth. 2016).

Because the law and the evidence support Employer’s contention that 

the Supplemental Agreement was filed inadvertently and that Employer should have 

filed an amended NCP, and Claimant did not argue “that the ‘mistake’ was using the 

form for a supplemental agreement when the form for an agreement for compensation 

should have been used[,]” Majority Op. at 11, the Majority erred in concluding that a 

remand is warranted to determine the intent of the parties’ in filing the Supplemental 

Agreement. Accordingly, I would vacate the Board’s order and remand the matter to 

the Board for remand to the WCJ to determine whether the NSTC and NCD were 

timely filed and, thus, valid.

___________________________

ANNE E. COVEY, Judge