Submitted, May 2, 2014
Appealed from No. A12-0765. State Agency: Workers' Compensation Appeal Board.
Michael D. Yelen, Wilkes-Barre, for petitioner.
Daniel G. Snyder, Center Valley, for respondent Highway Equipment and Supply Company.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
John Evans (Claimant) petitions for review of the November 21, 2013 order of the Workers' Compensation Appeal Board (Board), insofar as it affirmed the decision of a workers' compensation judge (WCJ) that $29,995.59 of work-related medical expenses are not payable directly to Claimant. We affirm.
By decision and order dated January 20, 2009, the WCJ granted Claimant's claim petition for an injury he sustained on April
while working for Highway Equipment and Supply Company (Employer). The WCJ awarded Claimant ongoing workers' compensation benefits for total disability and medical expenses. By correspondence dated February 16, 2009, Claimant's counsel informed Employer of the amount owed to Claimant pursuant to the January 20, 2009 order. Claimant also submitted a subrogation lien of Highmark Blue Shield (Highmark) for payment of medical expenses in the amount of $29,995.59. (WCJ's Findings of Fact Nos. 2-3, 2/23/10.)
On February 27, 2009, Claimant filed a penalty petition against Employer for failure to pay the January 2009 award in a timely and accurate manner. (WCJ's Finding of Fact No. 1, 2/23/10.) At the hearing, Claimant submitted an October 8, 2008 cover letter from Healthcare Recoveries, a corporation that provides recovery services to Highmark; a consolidated statement of benefits for medical expenses of $29,995.59 paid by Highmark to Geisinger Medical Center (Geisinger); and a document dated October 8, 2008, in which Healthcare Recoveries agreed to pay twenty percent as an attorney's fee to Claimant's counsel for reimbursement of its lien. (WCJ's Finding of Fact No. 8, 2/23/10; Board's op. at 5, 11/21/13.) The WCJ concluded that Employer violated the Workers' Compensation Act (Act) and granted Claimant's penalty petition. By decision and order dated February 23, 2010, the WCJ directed Employer to pay the $29,995.59 incurred in medical expenses to the " health care provider," less the twenty percent attorney's fee. (WCJ's order, 2/23/10.)
Claimant appealed to the Board, asserting that, under the holding in Frymiare v. Workers' Compensation Appeal Board (D. Pileggi & Sons), 105 Pa.Cmwlth. 325, 524 A.2d 1016 (Pa. Cmwlth. 1987), the WCJ erred in not directing Employer to pay the $29,995.59 incurred in medical expenses plus interest directly to Claimant. The Board remanded the case to the WCJ for a determination of whether the medical expenses plus interest should be paid directly to Claimant.
On remand, the WCJ found that the submission of the October 8, 2008 letter proved that a subrogation lien had been established by the parties prior to the WCJ's January 20, 2009 decision. Thus, the WCJ found that Employer was not to pay the medical expenses directly to Claimant. Further, the WCJ found that no statutory interest on these medical expenses was owed to Claimant. (WCJ's Finding of Fact No. 8, 5/7/12.)
Claimant appealed to the Board, arguing that the WCJ erred in declining to order Employer to pay the medical expenses directly to him. The Board held in its November 21, 2013 opinion and order that the WCJ did not err in concluding that a subrogation lien had been established between Claimant and Highmark prior to the January 20, 2009 order and that Healthcare Recoveries had properly preserved that lien in accordance with Boeing Helicopters v. Workers' Compensation Appeal Board (Cobb), 713 A.2d 1181, 1186 (Pa. Cmwlth. 1998) ( " [A] right of subrogation is not self-executing, and a party asserting a right of subrogation must exercise reasonable diligence to protect his or her interest." ). The Board concluded that the present case is distinguishable from Frymiare, because, unlike the situation ...