The opinion of the court was delivered by: P. Kevin Brobson, Judge
Argued: November 16, 2011
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JOHNNY J. BUTLER, Judge
Presently before the Court is the appeal of Petitioner Comcast Corporation (Employer). Comcast challenges a decision by Workers' Compensation Judge Irving L. Bloom (WCJ Bloom), which the Workers' Compensation Appeal Board (Board) affirmed, that Employer was not entitled to reimbursement from the Workers' Compensation Supersedeas Fund (Fund). The party opposing the appeal is the Commonwealth of Pennsylvania, Department of Labor and Industry, Bureau of Workers' Compensation (Commonwealth). For the reasons that follow, we reverse.
Neither the procedural history nor the facts in this case are in dispute. On June 23, 2005, Keith Jones (Claimant) allegedly sustained a low back strain while in the course and scope of his employment with Employer. On July 7, 2005, Employer, through its claims administrator, issued a notice of compensation payable (NCP), pursuant to which Claimant received total disability compensation at a rate of $383.05 per week. On February 26, 2007, Employer filed a Petition to Review/Set Aside the NCP (Review Petition) pursuant to Section 413 of the Workers' Compensation Act (Act),*fn1 after discovering that Claimant had made material misrepresentations of fact to Employer with respect to the alleged work injury, which caused Employer to issue the NCP in error. Employer also requested a supersedeas (i.e., stay) of its payment obligations under the NCP, pending a ruling on the Review Petition. There was no favorable action on the supersedeas request-i.e., it was denied.
On December 11, 2007, Employer filed a petition to terminate benefits (Termination Petition), arguing that Claimant had fully recovered from his injuries as of November 21, 2007. Employer again sought a supersedeas based on the Termination Petition. Again, there was no favorable action on this request- i.e., it too was denied.
On January 10, 2008, the parties entered into a Compromise and Release Agreement (Agreement). Under the Agreement, approved by Workers' Compensation Judge Linda F. Tobin (WCJ Tobin), the parties stipulated that from the date of injury to January 10, 2008, the amount of indemnity benefits paid or due and unpaid to Claimant was $50,562.60. The parties agreed to resolve all future payments through a single lump sum payment of $20,000.00. In WCJ Tobin's decision approving the Agreement, however, WCJ Tobin expressly noted that Employer's Review Petition and Termination Petition remained pending for disposition.*fn2
On September 4, 2008, WCJ Tobin granted the Review Petition, finding that Claimant had concealed relevant medical information. Relying on the Pennsylvania Supreme Court's decision in Phillips v. Workmen's Compensation Board of Review (Edgar Construction Company), 519 Pa. 31, 545 A.2d 869 (1988), WCJ Tobin reasoned that Claimant's conduct in concealing relevant medical information "taints the compensation agreement and legitimately calls into question whether the Claimant's disability is work-related." (Reproduced Record (R.R.) at 25a.) Under Phillips, WCJ Tobin held that the only remedy in such a case was "to nullify" the NCP. (Id.) In the alternative, WCJ Tobin held that if the NCP was correctly issued, Employer nonetheless satisfied its burden to show that Claimant had fully recovered from the work-related injury as of November 21, 2007. Based on her findings and conclusions relative to the Review Petition, however, WCJ Tobin's order granted only the Review Petition, without mentioning the Termination Petition. (Id. at 26a.)
On October 2, 2008, Employer filed an Application for Supersedeas Fund Reimbursement (Application) (R.R. at 27a-43a) pursuant to Section 443(a) of the Act,*fn3 which provides in relevant part:
If, in any case in which a supersedeas has been requested and denied .
. . , payments of compensation are made as a result thereof and upon
the final outcome of the proceedings, it is determined that such
was not, in fact, payable, the insurer who has made such payments
shall be reimbursed therefor. (Emphasis added.) Employer applied for
Fund reimbursement for benefits paid between February 26, 2007, the
date of Employer's Review Petition and related supersedeas request,
and September 4, 2008, the date of WCJ Tobin's decision and order
granting the Review Petition. Employer sought reimbursement of medical
and indemnity payments in the amount of $35,366.22.*fn4
The Commonwealth, acting as the conservator of the Fund,
filed an answer, denying Employer's factual basis for Fund
reimbursement and averring that reimbursement was barred as a matter
of law because the NCP remained in full force until it was properly
On October 21, 2009, WCJ Bloom circulated his decision and order on the Application. WCJ Bloom held that Employer was entitled to Fund reimbursement for compensation paid between the date Employer filed its Termination Petition and accompanying supersedeas request (December 11, 2007) and WCJ Tobin's September 4, 2008 decision and order, granting the Review Petition. But WCJ Bloom held that Employer was not entitled to reimbursement from the Fund for compensation paid during the period of time between the filing of the Review Petition and accompanying supersedeas request (February 26, 2007) and December 11, 2007. WCJ Bloom reasoned:
3. [Employer] is not entitled to reimbursement from the . . . Fund for benefits paid to Claimant for the time period of February 26, 2007 through December 10, 2007. This period of time is representative of benefits that were paid to Claimant through the incorrectly issued NCP. Such payments were made voluntarily by Petitioner. An NCP remains in full force until properly set aside, which did not occur until [WCJ] Tobin's Decision granting the Review Petition.
4. However, [Employer] also filed a Termination petition on December 11, 2007, in which it requested a Supersedeas that was deemed denied, and which was ultimately granted by [WCJ] Tobin. Therefore, [Employer] is entitled to reimbursement for benefits paid from the date of December 11, 2007 through September 4, 2008, in the amount of $15,549.23. (R.R. at 50a-51a (citation omitted).)
Employer appealed WCJ Bloom's decision to the Board. The Board affirmed, noting that WCJ Bloom's decision was in accord with a 1986 three-judge panel decision of this Court in Home Insurance Companies v. Workmen's Compensation Appeal Board (Bureau of Workers' Compensation and Denny's Inc./C.B.R. Construction), 510 A.2d 1280 (Pa. Cmwlth. 1986), appeal denied, 515 Pa. 588, 527 A.2d 547 (1987) (Home Insurance), and two subsequent three-judge panel decisions that follow it.*fn5 The facts in Home Insurance are very similar to the facts in this case. In Home Insurance, the employer issued a NCP, but later sought to set it aside by filing a review petition, because the employer determined that the injury was not work-related. The employer simultaneously requested a supersedeas, pending resolution of its ...