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Crime Doesn't Pay

We have often heard the phrase, “crime doesn’t pay.”  Well, prior to 1993, this was not the case when it came to Workers’ Compensation in Pennsylvania.  The Act did not prohibit a claimant who was incarcerated from receiving benefits.  Back in the day we used to schedule incarcerated claimants for IMEs.  We knew they could not attend, so we would file petitions to compel followed by petitions for suspension after paying the cost of two missed IMEs.  Sometimes we had to send a doctor to prison to do an IME so that we could make a job offer to serve as a basis for an uncontested suspension petition.  Thankfully, this changed when Act 44 was signed into law.  Under Section 306(a.1), an individual who is incarcerated after a conviction is not entitled to indemnity benefits.  Accordingly, an employer can suspend benefits during the period of incarceration after conviction. Conversely, however, if the claimant is incarcerated prior to trial and being found guilty, a suspension is not proper.  Once a Claimant is incarcerated after conviction, the suspension is self-executing, meaning, we do not need to seek a decision suspending benefits from a Workers’ Compensation Judge or have the claimant sign a supplemental agreement.


Incarceration has been broadly and favorably defined over the years by both the Pennsylvania Supreme Court and the Commonwealth Court.  The Courts have held that incarceration is not limited solely to a penal facility or prison. For example, the Commonwealth Court held that the suspension of benefits was appropriate where an individual was sentenced to a stint in a detention and alcohol recovery facility.  Likewise, a claimant who was involuntarily transferred to a state mental institution during probation was found to be ineligible for continuing indemnity benefits. In 2001 the Commonwealth Court expanded incarceration to include time spent in a halfway house. In Flynn v WCAB (Sovereign Staffing Source, Inc.), Claimant sustained an injury while on work release during the time that he was ordered to live in a halfway house.  The Court held the suspension of benefits while Claimant remained in the halfway house was proper. 


Likewise, in Moore v WCAB (Babcock & Wilcox Company), the Commonwealth Court held that an individual on house arrest following a conviction was also considered “incarcerated”.  The Claimant in this case was under house arrest in West Virginia, he was required to pay for his living expenses and was eligible to leave the house for work release.  However, the Court held this still constituted “constructive custody”, noting his movements were significantly limited by security measures and other limitations. 


What should you do to obtain the benefit of Section 306(a.1)?  Be sure to continue sending the LIBC 760 forms every 6 months.  If a claimant is incarcerated, he may not be inclined or able to complete the form. At the time the form is sent, a simple criminal docket search at may turn up criminal activity. Surveillance, background checks and social media searches can also provide beneficial information.  And, most importantly, communication between the employer and the adjuster is critical. 


Here’s the fun part.  Once you confirm the Claimant is incarcerated after conviction, SUSPEND the indemnity benefits.  Yes, even in Pennsylvania, where there is a form for everything, you don’t need to do anything except a simple EDI transaction (SROI-S5).  As a practical matter, medical treatment will probably cease, but technically the employer is still responsible for reasonable, necessary and related medical treatment.  One final caveat: remember indemnity benefits will have to be reinstated once the period of incarceration ends.


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