H.A. Harper Sons, Inc. and Donegal Mutual Insurance, Petitioners
Workers' Compensation Appeal Board (Sweigart and BWC Legal Division), Respondents
Submitted: October 4, 2013.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge  HONORABLE JAMES GARDNER COLINS, Senior Judge.
P. KEVIN BROBSON, Judge.
Petitioners H.A. Harper Sons, Inc. and Donegal Mutual Insurance (collectively Employer) petition for review of an order of the Workers' Compensation Appeal Board (Board), dated April 24, 2013. The Board reversed an order of a Workers' Compensation Judge (WCJ), which granted Employer's Application for Supersedeas Fund Reimbursement (Application). We now reverse.
Gregory Sweigart (Claimant) filed a claim petition against Employer, seeking workers' compensation benefits. By order dated June 11, 2008, a WCJ granted the claim petition. In the process of granting the claim petition, the WCJ determined, in part, that Claimant had an average weekly wage (AWW) of $542.50 and a corresponding compensation rate of $389.50 per week. On June 30, 2008, Employer appealed the WCJ's order granting the claim petition, challenging the calculation of Claimant's AWW. In connection with its appeal, Employer also filed an application for supersedeas, which the Board promptly denied by order dated July 29, 2008.
On or about January 26, 2009, while the appeal of the determination of Claimant's AWW was still pending, Employer filed a termination petition, averring that Claimant had fully recovered from his work-injuries as of November 5, 2008. Thereafter, the parties settled the case by way of an agreement for compromise and release (C&R Agreement) pursuant to which Employer agreed to pay Claimant $50, 000. Employer's termination petition was amended to become a petition to seek approval of a compromise and release. By order dated May 21, 2009, the WCJ approved the C&R Agreement and directed the parties to comply with its terms. The WCJ's order further provided that "[u]pon payment of the specified benefits to . . . Claimant and his attorney, [Employer] shall be released from liability for Claimant's work-related injury to the extent set forth in the [C&R] Agreement." (Reproduced Record (R.R.) at 32a (emphasis added).)
Thereafter, by order dated December 22, 2009, the Board granted Employer's appeal of the claim petition as it related to the calculation of Claimant's AWW. Specifically, the Board modified the WCJ's June 11, 2008 order to reflect a reduced AWW of $226.98 and a corresponding compensation rate of $204.28 per week. The Board affirmed the WCJ's order in all other respects.
As a result of the Board's modification of the claim petition award, Employer filed the subject Application, seeking reimbursement from the Workers' Compensation Supersedeas Fund (Fund) for overpayment of compensation to Claimant as a result of the incorrect calculation of Claimant's AWW by the WCJ. Employer submitted proof of payment showing that from June 30, 2008 (the date of the denial of its supersedeas request) until the final outcome of the proceedings on May 21, 2009, it overpaid compensation in the amount of $20, 241.90. The Commonwealth filed an answer, denying that Employer was entitled to reimbursement from the Fund, and the Bureau of Workers' Compensation Legal Division (Bureau) assigned the Application to the WCJ for judicial determination. By decision and order dated November 19, 2010, the WCJ granted the Application, concluding that Employer was entitled to reimbursement from the Fund for the full amount of $20, 241.90. The Bureau appealed to the Board, which reversed.
In concluding that Employer was not entitled to reimbursement, the Board reasoned that "[t]he essential dispute . . ., in determining whether the WCJ appropriately granted reimbursement from the Fund, is whether the C&R [Agreement] approved during the pendency of [Employer's] appeal of [the] WCJ['s] determination of Claimant's AWW resolved all litigation and/or liability." (Reproduced Record (R.R.) at 81a.) The Board, relying on our opinions in Stroehmann Bakeries v. Workers' Compensation Appeal Board (Plouse), 768 A.2d 1193 (Pa. Cmwlth. 2001), Bethlehem Structural Products v. Workers' Compensation Appeal Board (Vernon), 789 A.2d 767 (Pa. Cmwlth. 2001), appeal denied, 568 Pa. 706, 796 A.2d 986 (2002), Department of Labor v. Workers' Compensation Appeal Board (US Food Service), 932 A.2d 309 (Pa. Cmwlth. 2007), and Coyne Textile v. Workers' Compensation Appeal Board (Voorhis), 840 A.2d 372 (Pa. Cmwlth. 2008), reasoned that it was clear from the language of the C&R Agreement that it was the final outcome of the proceedings. For that reason, the Board concluded that the WCJ had erred in granting Employer relief.
On appeal to this Court,  Employer essentially argues that the Board erred when it reversed the WCJ's grant of the Application, because the C&R Agreement did not settle the issue of the AWW calculation and, following the approval of the C&R Agreement, Employer did not withdraw the appeal of the AWW issue pending before the Board.
The General Assembly created the Fund for the purpose of reimbursing, under prescribed circumstances, an employer who has been ordered to pay workers' compensation benefits that are later determined not to be owed. In so doing, "[t]he Legislature recognized that recoupment from the claimant was impractical and would undermine the benevolent purpose of the Act." Rogers v. Workmen's Comp. Appeal Bd. (Strouse/Greenberg & Co.), 565 A.2d 209, 211 (Pa. Cmwlth. 1989) (emphasis omitted) (quoting Bureau of Workers' Comp. v. Workmen's Comp. Appeal Bd. (Allstate Insur. Co.), 508 A.2d 388, 390 (Pa. Cmwlth. 1986), appeal denied, 514 Pa. 632, 522 A.2d 560 (1987)). The Fund injects fairness into a system that requires an employer to pay a disputed award of benefits after the award is appealed. US Food Servs., 932 A.2d at 312.
With regard to reimbursement, Section 443(a) of the Act provides, in relevant part:
(a) If, in any case in which a supersedeas has been requested and denied under the provisions of section 413 or section 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.
(Emphasis added.) Thus, an employer must satisfy the following five requirements in order to be entitled to ...