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Dep't of Labor & Industry Bureau of Workers' Compensation v. Workers' Compensation Appeal Board

February 2, 2009

DEPARTMENT OF LABOR & INDUSTRY BUREAU OF WORKERS' COMPENSATION, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (CRAWFORD & COMPANY), RESPONDENT



The opinion of the court was delivered by: Judge Cohn Jubelirer

Argued: September 10, 2008

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge,*fn1 HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

The Bureau of Workers' Compensation (Bureau) appeals an order of the Workers' Compensation Appeal Board (Board), which affirmed a Workers' Compensation Judge's (WCJ) decision granting the Application for Supersedeas Fund Reimbursement (Application) filed by Crawford & Company (Insurer). On appeal, the Bureau argues that the Board erred in granting Insurer reimbursement from the Workmen's Compensation Supersedeas Fund (Supersedeas Fund) because Insurer requested reimbursement for treatment rendered prior to the date on which it requested supersedeas reimbursement.

Kevin Ressler (Claimant) began receiving weekly compensation benefits for an injury that occurred in July 1995 in the course and scope of his employment with Metal Industries Incorporated of California (Employer). On June 1, 2004, Claimant underwent medical treatment for his injury. On July 19, 2004, Employer filed a Petition to Terminate benefits as of March 16, 2004 (Termination Petition) and requested supersedeas. On August 30, 2004, a WCJ denied Employer's request for supersedeas. On October 11, 2004, a medical bill for treatment rendered to Claimant on June 1, 2004, in the amount of $35,405.45, was presented to Insurer. Insurer paid this medical bill on January 25, 2005. On June 28, 2005, a WCJ granted Employer's Termination Petition, and the Board later affirmed. Subsequently, Insurer filed the Application requesting reimbursement from the Supersedeas Fund in the amount of $35,405.45. The Bureau argued that the treatment was rendered to Claimant prior to the request for supersedeas and, thus, payment for such treatment is not subject to reimbursement from the Supersedeas Fund. The WCJ disagreed and granted Insurer's Application, stating:

It is not the date of service that causes the compensation to be due. It is the date when the bill is properly presented. This matter was due on the date the bill was filed.... This was an obligation that arose after the petition [for supersedeas] was filed and the supersedeas was denied. A service date generates a potential claim but there is no duty to pay until the bill is presented.

(WCJ Decision at 1.) On appeal, the Board affirmed, stating that "[a]s the obligation for payment of the medical bill, and the payment thereof, occurred after the request for supersedeas was made and denied, it was not error for the WCJ to grant [Insurer's] Application for Supersedeas Fund Reimbursement." (Board Op. at 5.) The Bureau now petitions this Court for review.*fn2

The Bureau is charged with the responsibility for the maintenance and conservation of the Supersedeas Fund. Section 443(b) of the Workers' Compensation Act (Act), 77 P.S. § 999(b).*fn3 An employer or insurer is entitled to reimbursement from the Supersedeas Fund only when certain requirements under Section 443(a) of the Act*fn4 are met. Mark v. Workers' Compensation Appeal Board (McCurdy), 894 A.2d 229, 233 (Pa. Cmwlth. 2006). This Court has interpreted those requirements as follows:

1) a supersedeas was requested; 2) the request for supersedeas was denied; 3) the request was made in a proceeding under Section 413 [of the Act, 77 P.S. § 771,] or Section 430 of the Act[, 77 P.S. § 971]; 4) payments were continued because of the order denying supersedeas; and 5) in the final outcome of the proceedings, it was determined such compensation was not, in fact, payable.

Id.

"The Bureau acknowledged... that Insurer met all five prerequisites and was entitled to reimbursement for indemnity and medical expenses... for the period from July 19, 2004 through June 28, 2005." (Bureau's Br. at 8-9.) However, this dispute is over a medical bill and payment "for treatment rendered on June 1, 2004, more than six weeks prior to Insurer's request for supersedeas." (Bureau's Br. at 9 (emphasis added).)

The Bureau contends that the Board's order should be reversed because"if an employer requests supersedeas from a WCJ pursuant to" Section 413(a) of the Act,*fn5 supersedeas cannot be effective any earlier than the date on which the request for supersedeas is filed. (Bureau's Br. at 9 (citing Westmoreland Casualty Co. v. Workmen's Compensation Appeal Board, 379 A.2d 1080 (Pa. Cmwlth. 1977).) Further, this Court, in Robb, Leonard and Mulvihill v. Workers' Compensation Appeal Board (Hooper), 746 A.2d 1175, 1181 (Pa. Cmwlth. 2000), held that reimbursement from the Supersedeas Fund can only be granted for those payments made by the insurer that are attributable to the period of disability after the date that the request for supersedeas was filed. Thus, the Bureau contends that because the medical service in question was rendered before Insurer requested supersedeas, it is not permitted to be reimbursed out of the Supersedeas Fund. In addition to relying on Hooper, the Bureau also relies on this Court's decision in Stonebraker v. Workmen's Compensation Appeal Board (Seven Springs Farm, Inc.), 641 A.2d 655 (Pa. Cmwlth. 1994), superseded by statute, Sections 413(a.1)-(a.2) of the Act, as amended, 77 P.S. § 774. In Stonebraker, this Court held that "where a claimant has proven a compensable work injury or received benefits through a notice of compensation payable, an employer is liable for payment of the claimant's medical expenses incurred up to the date of the referee's final order terminating the employer's liability." Id. at 660. The Bureau is concerned that if this Court agrees with the Board and Insurer's position, then "insurers would be encouraged to withhold payment until supersedeas was eventually requested because, under the system proposed by Insurer, such payment would be reimbursable from the Fund, regardless of when treatment was actually provided." (Bureau's Br. at 12.)*fn6 The Bureau maintains that "regardless of the date that the bill was properly submitted by the provider to Insurer, Insurer was under the obligation to provide medical treatment to Claimant. And because that treatment was received by Claimant before Insurer's request for supersedeas, reimbursement from the Fund for that treatment is not appropriate." (Bureau's Br. at 12.)

In order to resolve this dispute, we look to recent case law addressing issues of reimbursement from the Supersedeas Fund. Specifically, in Mark, this Court held that reimbursement from the Supersedeas Fund "may be had for all payments actually made after supersedeas denial, including payment of benefits awarded retroactively for earlier periods of disability." Mark, 894 A.2d at 237.

[8] In contrast, the proofs of payment insurers currently provide to the Fund never show the dates when providers submit their bills to the insurers.

(Bureau's Br. at 12 & n.8.)

In Mark, in May 1997, after years of litigation regarding the claimant's claim petition, "the first WCJ granted [the c]laimant on-going benefits retroactive to early September 1993." Id. at 232. The employer appealed to the Board and filed a supersedeas request, which the Board denied. Id. The Board subsequently affirmed the WCJ's holding that claimant proved a work-related aggravation to a preexisting condition. The Board reversed the WCJ's factual finding that claimant has an ongoing disability and remanded to the WCJ to determine the date upon which the claimant was fully recovered. On remand, a second WCJ found that, as of August 1995, the claimant had recovered from the aggravation of her preexisting condition and terminated benefits effective August 1998. Id. The Board affirmed this decision. "The significance of this second WCJ decision is that benefits initially awarded for disability from August 1995 until the August 1998 decision on termination were ultimately determined not to be payable. Those benefits were paid after the supersedeas request was denied." Id. at 232-33. Before this Court, the parties were contesting the benefits paid to the claimant "for disability from the August 1995 recovery date to the June 1997 supersedeas request." Id. at 233. However, the parties did agree that the insurer should be reimbursed for the periods after the supersedeas request in June 1997. Id. In January 2003, the insurer sought reimbursement from the Supersedeas Fund. The Bureau determined that the insurer would only be reimbursed for payments after the June 1997 supersedeas request and that the insurer would not be reimbursed "retroactive benefits paid for periods before the request" was made. Id. at 232-33. A third WCJ also determined that reimbursement from the Supersedeas Fund could only be had "for payments attributable to disability periods occurring after the supersedeas request" was made. Id. at 233. This determination was affirmed by the Board.

On appeal, this Court noted the complexity of supersedeas requests and the adversarial positions taken by the Board and Bureau. Therefore, the Court looked to the language of the Act for guidance. Id. at 234. This Court noted that Supersedeas Fund reimbursement is available when requested in proceedings under Section 413 or Section 430 of the Act.*fn7 In Section 413 cases, a WCJ may modify an existing compensation situation. Specifically, a supersedeas request "is addressed to a WCJ to suspend a previously established payment liability, usually in conjunction with a petition to reduce compensation (suspension, modification or termination). This is the import of the statutory requirement that premises Supersedeas Fund reimbursement on a supersedeas request in proceedings under Section 413." Mark, 894 A.2d at 234. Retroactive benefits are not always involved in Section 413 cases. Id. However, where they are involved, "it is usually because an employer unilaterally stopped payments under a previously established liability." Id. By contrast, Section 430 cases involve appeals from a WCJ decision to the Board. Specifically, the supersedeas request is filed with the Board, or this Court, "to suspend a recent decision on appeal." Id. at 235. In these cases, significant ...


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