Department of Labor & Industry, Bureau of Workers' Compensation v. Workers' Compensation Appeal Board

58 A.3d 18, 619 Pa. 29, 2012 Pa. LEXIS 2734
CourtSupreme Court of Pennsylvania
DecidedNovember 21, 2012
StatusPublished
Cited by6 cases

This text of 58 A.3d 18 (Department of Labor & Industry, Bureau of Workers' Compensation v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Labor & Industry, Bureau of Workers' Compensation v. Workers' Compensation Appeal Board, 58 A.3d 18, 619 Pa. 29, 2012 Pa. LEXIS 2734 (Pa. 2012).

Opinions

OPINION

Justice BAER.

We granted review to consider whether a Workers’ Compensation employer’s insurance carrier should be reimbursed from the Supersedeas Fund for specific payments made to a claimant prior to the ultimate grant of supersedeas. The question turns on whether the relevant payments constituted payments of “compensation” within the meaning of Section 443 of the Workers’ Compensation Act (“WCA”), 77 P.S. § 999(a), or, as argued by Appellant Bureau of Workers’ Compensation (“Bureau”), whether the payments are not reimbursable because they constitute payment of legal costs associated with obtaining a claimant’s third-party tort settlement under Section 319 of the WCA, 77 P.S. § 671. After review, we find no language in either Section 443 or Section 319 that would transform the relevant payments into something other than compensation merely because the amounts of the payments were calculated to compensate the claimant for the costs of recovering the third-party settlement. Accordingly, we affirm the decision of the Commonwealth Court.

Claimant Mark Oestereich (“Claimant”) worked as a service technician for Filter Tech, Inc., changing filters and performing inspections on commercial heating and air conditioning units. In November 2003, he suffered work-related bilateral ankle fractures when he fell from a ladder at a Wendy’s restaurant in Carlisle, Pennsylvania. As a result, Claimant had surgeries on both legs, was in a wheelchair for three months, used crutches for an additional six months, and had continuing lifting restrictions.

Following the 2003 injury, Appellee Excelsior Insurance (“Employer’s Insurer”), Filter Tech’s Workers’ Compensation insurance carrier, paid Claimant Workers’ Compensation benefits of $410.00 per week (“Weekly Compensation Rate”).1 On November 22, 2005, Employer’s Insurer filed a petition to modify benefits, alleging that medically appropriate work was available to Claimant as of August 12, 2005, and requested supersedeas. A Workers’ Compensation Judge (“WCJ”) denied Employer’s Insurer’s request for supersedeas in January 2006. Later, Employer’s Insurer orally amended the petition to modify, requesting a suspension of benefits as of August 12, 2005.

Subsequently, Claimant settled his claim against a third-party tortfeasor for $310,000.00 (“Settlement Total”). In February 2006, Employer’s Insurer and Claimant entered into an agreement (“Third-Party Settlement Agreement”) providing for the distribution of the settlement in compliance with Section 319, as interpreted by this Court in P & R Welding & Fabricating v. WCAB (Pergola), 549 Pa.490, 701 A.2d 560 (1997).2 As discussed [20]*20in detail below, Section 319 provides specific direction for the distribution of a claimant’s settlement from a third-party tortfeasor between the claimant and the employer. At its most basic, Section 319 provides that the employer shall recover from the settlement the amount it previously paid to the claimant, minus the claimant’s legal costs of recovering that amount. If the settlement exceeds the amount previously paid by the employer, then the balance is paid to the claimant but treated as advance payment of future compensation by the employer, such that the employer is granted a grace period during which it does not have to make compensation payments for a certain number of weeks. The employer, however, is responsible for the remaining legal costs of recovering the amount attributable to the grace period. While simple in concept, the application of Section 319 presents various complications, including how to treat the division of the attorney fees, which Section 319 directs to be prorated between the employer and the claimant.

In Pergola, we determined that the proper method of apportioning the legal fees required the use of the gross method, rather than the net method, of calculation. The main difference between the two methods is that under the net method the legal costs are deducted initially from the total recovery to determine the amount available for future credit during the grace period, whereas the gross method prorates the legal fees as the employer receives the benefit during the grace period. Under the gross method, the employer receives a longer grace period and has the payment of the legal costs spread over the grace period.3

Applying Section 319 and Pergola to the case at bar, the parties agreed that $120,698.48 of the $310,000 Settlement Total was subject to subrogation under Section 319 as the amount Employer’s Insurer had previously paid in benefits to Claimant (“Employer Accrued Lien”). 77 P.S. § 671 (“Where the compensable injury is caused in whole or in part by the act or [21]*21omission of a third party, the employer shall be subrogated to the right of the employe[e] ... against such third party to the extent of the compensation payable under this article by the employer....”) (internal footnote omitted).

The Third-Party Settlement Agreement additionally recognized that Section 319 provides for the proration of the claimant’s expenses of recovery between the employer and claimant. Id. (“[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[e].... ”). Accordingly, the parties first determined that Claimant expended $124,314.23 (“Total Expenses of Recovery”) to recover the settlement. In order to prorate this amount, the parties recognized that the Employer’s Accrued Lien amounted to thirty-nine percent of the Settlement Total.4 Therefore, they prorated to Employer’s Insurer thirty-nine percent of the Total Expenses of Recovery, specifically $48,401.73 (“Employer’s Initial Share of Expenses of Recovery”).5 Thus, Employer’s Insurer, as reimbursement of the amount it had previously paid in Workers’ Compensation benefits, received the amount left after subtracting the Employer’s Initial Share of Expenses of Recovery from the Employer’s Accrued Lien, for an Employer Net Lien of $72,296.75.6 Id.

Returning to consideration of the recovery received by Claimant, the parties subtracted the Employer Accrued Lien from the Settlement Total, which resulted in a balance of recovery of $189,301.52 (Balance of Recovery).7 As noted, Section 319 provides that “[a]ny recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employe[e] ... and shall be treated as an advance payment by the employer on account of any future installments of compensation.” Id. Accordingly, utilizing the gross method, the agreement divided Claimant’s Balance of Recovery ($189,301.52) by his previous Weekly Compensation Rate to determine that Employer’s Insurer would be entitled to a grace period of 461.7 weeks.8 Recognizing that $75,912.50 of Expenses of Recovery remained uncompensated,9 the parties also calculated the weekly prorated share of the remaining Expenses of Recovery to determine that Employer’s Insurer would pay Claimant $164.42 each week during the grace period.10

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Cite This Page — Counsel Stack

Bluebook (online)
58 A.3d 18, 619 Pa. 29, 2012 Pa. LEXIS 2734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-labor-industry-bureau-of-workers-compensation-v-workers-pa-2012.