July 28, 2010
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR & INDUSTRY, BUREAU OF WORKERS' COMPENSATION, PETITIONER
WORKERS' COMPENSATION APPEAL BOARD (OLD REPUBLIC INSURANCE CO.), RESPONDENT
The opinion of the court was delivered by: Senior Judge Flaherty
Submitted: April 23, 2010
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
The Department of Labor and Industry, Bureau of Workers' Compensation (Bureau) appeals from the decision of the Workers' Compensation Appeal Board (Board) affirming the order of the Workers' Compensation Judge (WCJ) granting an application for supersedeas fund reimbursement filed by the Delaware County IU and its insurer, Old Republic Insurance Company (collectively, Insurer), to recover the amount expended on attorney's fees and costs related to third-party litigation. For the reasons that follow, we affirm.
Janette Brandon (Claimant) sustained a work-related injury and began receiving benefits pursuant to a Notice of Compensation Payable. Insurer filed a Termination Petition on December 2, 2005 alleging that Claimant had fully recovered from her work injuries as of September 23, 2005 and was capable of returning to unrestricted work. Insurer also requested supersedeas. Insurer's request for supersedeas was denied on December 28, 2005. The Employer's Termination Petition was granted on January 3, 2007 whereupon Claimant's benefits were terminated as of September 23, 2005.
In the meantime, Claimant obtained a third-party settlement for her work injury of $175,000.00. Employer had an accrued lien of $68,849.36. The Employer's pro rata share of the cost of recovery in the third party settlement was $29,520.30. Consequently, Employer received a check in the amount of $39,329.06 for the amount of its net lien.
Insurer filed an application for supersedeas fund reimbursement with the Bureau seeking reimbursement for the indemnity benefits and medical expenses paid from the date its supersedeas request was denied through the date of the WCJ's final order. The Bureau denied the application concluding that Insurer already received full satisfaction of its lien upon payment from the third-party settlement.
On appeal, the WCJ concluded that Employer was entitled to supersedeas reimbursement in the amount of $9,686.61. The WCJ noted that the total amount of indemnity and medical payments paid to Claimant following the denial of supersedeas was $22,271.91. She noted that this amount represented 32% of the total benefits paid to Claimant during the lifetime of her claim.*fn1 Therefore, she concluded that 32% of the net subrogation lien payment is attributable to the compensation paid during the eligible period of December 2, 2005 through January 3, 2007, i.e., $12,585.30.*fn2 Finally, the WCJ concluded that this amount should be deducted from the total amount paid during the eligible period of reimbursement to get the net amount Insurer is eligible to recover from the Supersedeas Fund; i.e., $9,686.61.*fn3 The Board affirmed. This appeal followed.*fn4
The Bureau argues on appeal that reimbursement is not warranted in this instance. It contends that only compensation payments paid after the denial of supersedeas are subject to reimbursement. The Bureau asserts that Insurer is not attempting to recover compensation in this matter, but rather its portion of costs in obtaining the third party recovery.
At the heart of the Bureau's argument is the interplay between Section 443(a) of the Pennsylvania Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §999(a), and Section 319 of the Act, 77 P.S. §671. Section 443(a) of the Act provides as follows:
If, in any case in which a supersedeas has been requested and denied under the provisions of Sec. 413 or Sec. 430, payments of compensation are made as a result thereof and upon the final outcome of the proceedings, it is determined that such compensation was not, in fact payable, the insurer who has made such payments shall be reimbursed therefor..*fn5
77 P.S. §999(a). (Emphasis added).
Section 319 of the Act provides, in pertinent part:
Where the compensable injury is caused. by. a third party, the employer shall be subrogated to the right of the employe. against such third party to the extent of the compensation payable under this article by the employer; reasonable attorney's fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employe.. The employer shall pay that proportion of the attorney's fees and other proper disbursements that the amount of compensation paid or payable at the time of recovery or settlement bears to the total recovery or settlement.
77 P.S. §671. (Emphasis added).
The purpose of the Supersedeas Fund is to provide a means to protect an employer who makes compensation payments to an employee who ultimately is determined not to have been entitled to those payments. City of Wilkes-Barre v. Workers' Compensation Appeal Board (Spaide), 868 A.2d 620 (Pa. Cmwlth. 2004). In interpreting Section 443(a) of the Act, this Court has found that in order to obtain reimbursement from the supersedeas fund, it must establish that (1) a supersedeas was requested; (2) the request for supersedeas was denied; (3) the request was made in a proceeding under Section 413, 77 P.S. §771, or 430 of the Act, 77 P.S. 971; (4) payments were continued because of the order denying the supersedeas; and (5) in the final outcome of the proceedings, it is determined that such compensation was not, in fact, payable. Bureau of Workers' Compensation v. Workers' Compensation Appeal Board (Consolidated Freightways, Inc.), 876 A.2d 1069 (Pa. Cmwlth. 2005).
Subrogation is an equitable remedy that prevents double recovery and ensures that the party at fault, rather than an innocent party, be held responsible for a claimed injury. Thompson v. Workers' Compensation Appeal Board (USF&G Co.), 566 Pa. 420, 781 A.2d 1146 (2001). An employer has an absolute right to immediate payment of its past due lien from the recovery fund after payment of attorney's fees and expenses. Mrkich v. Workers' Compensation Appeal Board (Allegheny County Children and Youth Serv.), 801 A.2d 668 (Pa. Cmwlth. 2002).
This Court recently faced the identical issue of whether recovery fees incurred pursuant to Section 319 as a result of a third-party settlement are compensation as defined by Section 443(a) and recoverable from the supersedeas fund. In Department of Labor and Industry v. Workers' Compensation Appeal Board (Excelsior Ins.), 987 A.2d 855 (Pa. Cmwlth. 2010), which is controlling in this case, we held that recovery fees are compensation under Section 443(a) of the Act. We stated, "[w]e discern no clear indication from Section 319 that an insurer is required, in the context of Supersedeas Fund reimbursement, to assume the costs of recovering a third party settlement for periods in which there has been a determination that compensation was not, in fact, payable." Id. at 862. This Court further explained "[a]lthough the amounts for which insurer is seeking reimbursement correlate to what is designated as recovery costs when the subrogation calculations were made under Section 319, as the Board correctly stated, Section 319 does not 'convert the compensation paid for [wage loss] and medical benefits into something else for the purposes of Section 443(a).'" Id. at 863. (Emphasis in original). The payments in Excelsior Ins. were deemed payments of "compensation" for purposes of Section 443 of the Act and reimbursement was found appropriate.
Here, just as in Excelsior Ins., Insurer incurred recovery fees pursuant to Section 319 due to a third-party recovery by Claimant. A portion of those recovery fees in the sum of $9,686.61 represent the amount Insurer paid to Claimant following the denial of its supersedeas request on December 28, 2005 that, ultimately, were found not to be payable. Because the amount was not payable and because recovery fees are compensation under Section 443(a) of the Act, the Supersedeas Fund is required to reimburse Insurer in the amount of $9,686.61.*fn6
We detect no error in the Board's August 12, 2009 Opinion. Consequently, its order is affirmed.
JIM FLAHERTY, Senior Judge
AND NOW, this 28th day of July, 2010, the order of the Workers' Compensation Appeal Board in the above-captioned matter is AFFIRMED.
JIM FLAHERTY, Senior Judge