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

965 A.2d 332, 2009 Pa. Commw. LEXIS 23, 2008 WL 5567535

• Court: Commonwealth Court of Pennsylvania
• Decided: February 2, 2009
• Docket: 2211 C.D. 2007
• Status: Published

Opinions

OPINION BY

Judge COHN JUBELIRER.

The Bureau of Workers’ Compensation (Bureau) appeals an order of the Workers’ Compensation Appeal Board (Board), which affirmed a Workers’ Compensation Judge’s (WCJ) decision granting the Application for Supersedeas Fund Reimbursement (Application) filed by Crawford & Company (Insurer). On appeal, the Bureau argues that the Board erred in granting Insurer reimbursement from the Workmen’s Compensation Supersedeas Fund (Supersedeas Fund) because Insurer requested reimbursement for treatment rendered prior to the date on which it requested supersedeas reimbursement.

Kevin Ressler (Claimant) began receiving weekly compensation benefits for an injury that occurred in July 1995 in the course and scope of his employment with Metal Industries Incorporated of California (Employer). On June 1, 2004, Claimant underwent medical treatment for his injury. On July 19, 2004, Employer filed a Petition to Terminate benefits as of March 16, 2004 (Termination Petition) and requested supersedeas. On August 30, 2004, a WCJ denied Employer’s request for su-persedeas. On October 11, 2004, a medical bill for treatment rendered to Claimant on June 1, 2004, in the amount of $35,405.45, was presented to Insurer. Insurer paid this medical bill on January 25, 2005. On June 28, 2005, a WCJ granted Employer’s Termination Petition, and the Board later affirmed. Subsequently, Insurer filed the Application requesting reimbursement from the Supersedeas Fund in the amount of $35,405.45. The Bureau argued that the treatment was rendered to Claimant prior to the request for supersedeas and, thus, payment for such treatment is not subject to reimbursement from the Supersedeas Fund. The WCJ disagreed and granted Insurer’s Application, stating:

It is not the date of service that causes the compensation to be due. It is the date when the bill is properly presented. This matter was due on the date the bill was filed.... This was an obligation that arose after the petition [for super-sedeas] was filed and the supersedeas was denied. A service date generates a potential claim but there is no duty to pay until the bill is presented.

(WCJ Decision at 1.) On appeal, the Board affirmed, stating that “[a]s the obligation for payment of the medical bill, and the payment thereof, occurred after the request for supersedeas was made and denied, it was not error for the WCJ to grant [Insurer’s] Application for Supersedeas Fund Reimbursement.” (Board Op. at 5.) The Bureau now petitions this Court for review.²

The Bureau is charged with the responsibility for the maintenance and conservation of the Supersedeas Fund. Section 443(b) of the Workers’ Compensation Act (Act), 77 P.S. § 999(b).³ An employer or insurer is entitled to reimbursement from the Supersedeas Fund only when certain requirements under Section 443(a) of the Act⁴ are met. Mark v. Workers’ Compensation Appeal Board (McCurdy), 894 A.2d 229, 233 (Pa.Cmwlth.2006). This Court has interpreted those requirements as follows:

1) a supersedeas was requested; 2) the request for supersedeas was denied; 3) the request was made in a proceeding under Section 413 [of the Act, 77 P.S. § 771,] or Section 430 of the Act[, 77 P.S. § 971]; 4) payments were continued because of the order denying super-sedeas; and 5) in the final outcome of the proceedings, it was determined such compensation was not, in fact, payable.

Id.

“The Bureau acknowledged ... that Insurer met all five prerequisites and was entitled to reimbursement for indemnity and medical expenses ... for the period from July 19, 2004 through June 28, 2005.” (Bureau’s Br. at 8-9.) However, this dispute is over a medical bill and payment “for treatment rendered on June 1, 2004, more than six weeks prior to Insurer’s request for supersedeas.” (Bureau’s Br. at 9 (emphasis added).)

The Bureau contends that the Board’s order should be reversed because “if an employer requests supersedeas from a WCJ pursuant to” Section 413(a) of the Act,⁵ supersedeas cannot be effective any earlier than the date on which the request for supersedeas is filed. (Bureau’s Br. at 9 (citing Westmoreland Casualty Co. v. Workmen’s Compensation Appeal Board, 32 Pa.Cmwlth. 492, 879 A.2d 1080 (1977).) Further, this Court, in Robb, Leonard and Mulvihill v. Workers’ Compensation Appeal Board (Hooper), 746 A.2d 1175, 1181 (Pa.Cmwlth.2000), held that reimbursement from the Supersedeas Fund can only be granted for those payments made by the insurer that are attributable to the period of disability after the date that the request for supersedeas was filed. Thus, the Bureau contends that because the medical service in question was rendered before Insurer requested supersedeas, it is not permitted to be reimbursed out of the Supersedeas Fund. In addition to relying on Hooper, the Bureau also relies on this Court’s decision in Stonebraker v. Workmen’s Compensation Appeal Board (Seven Springs Farm, Inc.), 163 Pa.Cmwlth. 468, 641 A.2d 655 (1994), superseded by statute, Sections 413(a.l)-(a.2) of the Act, as amended, 77 P.S. § 774. In Stonebraker, this Court held that “where a claimant has proven a compensable work injury or received benefits through a notice of compensation payable, an employer is liable for payment of the claimant’s medical expenses incurred up to the date of the referee’s final order terminating the employer’s liability.” Id. at 660. The Bureau is concerned that if this Court agrees with the Board and Insurer’s position, then “insurers would be encouraged to withhold payment until supersedeas was eventually requested because, under the system proposed by Insurer, such payment would be reimbursable from the Fund, regardless of when treatment was actually provided.” (Bureau’s Br. at 12.)⁶ The Bureau maintains that “regardless of the date that the bill was properly submitted by the provider to Insurer, Insurer was under the obligation to provide medical treatment to Claimant. And because that treatment was received by Claimant before Insurer’s request for supersedeas, reimbursement from the Fund for that treatment is not appropriate.” (Bureau’s Br. at 12.)

In order to resolve this dispute, we look to recent case law addressing issues of reimbursement from the Supersedeas Fund. Specifically, in Mark, this Court held that reimbursement from the Super-sedeas Fund “may be had for all payments actually made after supersedeas denial, including payment of benefits awarded retroactively for earlier periods of disability.” Mark, 894 A.2d at 237.

In Mark, in May 1997, after years of litigation regarding the claimant’s claim petition, “the first WCJ granted [the claimant on-going benefits retroactive to early September 1993.” Id. at 232. The employer appealed to the Board and filed a supersedeas request, which the Board denied. Id. The Board subsequently affirmed the WCJ’s holding that claimant proved a work-related aggravation to a preexisting condition. The Board reversed the WCJ’s factual finding that claimant has an on-going disability and remanded to the WCJ to determine the date upon which the claimant was fully recovered. On remand, a second WCJ found that, as of August 1995, the claimant had recovered from the aggravation of her preexisting condition and terminated benefits effective August 1998. Id. The Board affirmed this decision. “The significance of this second WCJ decision is that benefits initially awarded for disability from August 1995 until the August 1998 decision on termination were ultimately determined not to be payable. Those benefits were paid after the supersedeas request was denied.” Id. at 282-33. Before this Court, the parties were contesting the benefits paid to the claimant “for disability from the August 1995 recovery date to the June 1997 supersedeas request.” Id. at 233. However, the parties did agree that the insurer should be reimbursed for the periods after the supersedeas request in June 1997. Id. In January 2003, the insurer sought reimbursement from the Super-sedeas Fund. The Bureau determined that the insurer would only be reimbursed for payments after the June 1997 supersedeas request and that the insurer would not be reimbursed “retroactive benefits paid for periods before the request” was made. Id. at 232-33. A third WCJ also determined that reimbursement from the Supersedeas Fund could only be had “for payments attributable to disability periods occurring after the supersedeas request” was made. Id. at 233. This determination was affirmed by the Board.

On appeal, this Court noted the complexity of supersedeas requests and the adversarial positions taken by the Board and Bureau. Therefore, the Court looked to the language of the Act for guidance. Id. at 234. This Court noted that Superse-deas Fund reimbursement is available when requested in proceedings under Section 413 or Section 430 of the Act.⁷ In Section 413 cases, a WCJ may modify an existing compensation situation. Specifically, a supersedeas request “is addressed to a WCJ to suspend a previously established payment liability, usually in conjunction with a petition to reduce compensation (suspension, modification or termination). This is the import of the statutory requirement that premises Supersedeas Fund reimbursement on a supersedeas request in proceedings under Section 413.” Mark, 894 A.2d at 234. Retroactive benefits are not always involved in Section 413 cases. Id. However, where they are involved, “it is usually because an employer unilaterally stopped payments under a previously established liability.” Id. By contrast, Section 430 cases involve appeals from a WCJ decision to the Board. Specifically, the supersedeas request is filed with the Board, or this Court, “to suspend a recent decision on appeal.” Id. at 235. In these cases, significant retroactive benefits are usually involved when there is “no previously established compensation liability or where liability is reinstated or enlarged .... These benefits accrue during the course of litigation and not from a unilateral cessation of payments under a previously established liability.” Id. (internal citations omitted).

Further, we discussed the language in Section 443 of the Act, which addresses reimbursement requests from the Superse-deas Fund. This Court explained:

The Section is clear in its focus on payments made rather than on periods of disability. The statute provides in pertinent part: “If ... 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 compensation was not, in fact, payable, the insurer who has made such payments shall be reimbursed therefor.” 77 P.S. § 999(a) (emphasis added).

Thus, this Section of the Act does not speak of disability or of the accrual of liability; rather, the statute clearly speaks to payments of compensation made as a result of a denied supersedeas request. The provision contains no plain language prohibiting reimbursement of retroactive benefits. The plain language of the statute supports Petitioners’ position that the right to reimbursement relates to payments made after denial of a supersedeas request, as is the case with the full amount here.

Mark, 894 A.2d at 235 (alterations in original). Based on this Court’s interpretation of the language of Section 443(a) of the Act, we overruled language and reasoning in Wausau Insurance Companies v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania), 826 A.2d 21 (Pa.Cmwlth.2003), and Cunningham v. Workmen’s Compensation Appeal Board (Inglis House), 156 Pa.Cmwlth. 241, 627 A.2d 218 (1993), to the effect “that an order granting a supersedeas request may not be applied retroactively.” Mark, 894 A.2d at 235 (describing Wausau and Cunningham ). We “disapprove^] of that language in cases where supersedeas was sought under Section 430 from a recent decision and where reimbursement is sought for retroactive benefits paid after supersedeas denial.” Id. at 235-36.

In Mark, we discussed a more recent decision in Bureau of Workers’ Compensation v. Workers’ Compensation Appeal Board (Consolidated Freightways, Inc.), 876 A.2d 1069 (Pa.Cmwlth.2005), which dealt with a supersedeas request under Section 430 of the Act, and we determined that Consolidated Freightways controlled the outcome of the case. Specifically, we stated that, in Consolidated Freightways:

[retroactive benefits were awarded, but the benefits did not accrue during a unilateral cessation of compensation; rather, the benefits accrued during the litigation process. This Court held that the Fund should reimburse for retroactive benefits paid after the supersedeas was denied, even though the benefits were attributable to disability before su-persedeas was requested.

Mark, 894 A.2d at 237.

We held that, “[u]nlike ... cases involving retroactive benefits accruing from an employer’s” unilateral cessation of benefits under Section 413, in Mark there was “no reasonable argument that insurer wrongfully stopped benefits.” Id. Additionally, we noted that no argument was proffered that the insurer “could have requested su-persedeas sooner or lawfully done anything to avoid the payments in question.” Id. Thus, this Court held that, “[consistent with Consol. Freightways, ... reimbursement may be had for all payments actually made after supersedeas denial, including payment of benefits awarded retroactively for earlier periods of disability.” Id. This Court went on to state:

In so holding we reject the Bureau’s circular argument that Petitioners did not make the payments at issue as a result of the denial of supersedeas but because they lost in their defense of the claim petition. There was no existing determination of liability until the first WCJ made an award. It was that award that for the first time included liability for retroactive benefits, and it was that award Petitioners sought to stay. Petitioners paid these benefits after their supersedeas request was denied. This satisfies the statutory requirement.

The Bureau’s position would preclude reimbursement of mistakenly awarded retroactive benefits in all cases. If the legislature intended to preclude Fund reimbursement for all retroactive benefits, it could have said so; however, the statute does not contain that restriction. See Consol. Freightways, 876 A.2d at 1073 (legislature did not intend to foreclose reimbursement for benefits that have been wrongfully reinstated, but such would be result of Bureau’s position).

Id. Accordingly, we affirmed the order of the Board, with a modification “to permit reimbursement of the full amount ... which include[d] retroactive benefits.” Id.

The Bureau contends, in its reply brief, that Mark and Consolidated Freightways do not control, arguing that both cases:

involved claimant-filed petitions to which the insurers filed requests for superse-deas at the earliest possible moment. In each case, the insurer had no liability for disability or medical treatment until the [WCJ] issued an order from which each insurer promptly appealed. These orders, and the ultimate denials of su-persedeas, resulted in the overpayment for which each insurer requested reimbursement.

(Bureau’s Reply Br. at 1.) The Bureau argues that:

In contrast to the insurers in [Mark] and Consolidated Freightways, which, contested their liability from the inception of the claim, the insurer in this matter previously acknowledged liability for payment of compensation, including treatment such as the medical bill at issue here. As a result, and unlike [Mark ] and Consolidated Freightways, the insurer here does not seek reimbursement for any liability that resulted from a WCJ’s decision. Instead, the insurer here seeks reimbursement for its failure to file a timely termination petition and supersedeas request.

(Bureau’s Reply Br. at 1.) The Bureau contends that the Supersedeas Fund should not be required to underwrite such a failure.

Contrary to the Bureau’s argument, we agree with Insurer that Mark controls the outcome of this case. While we acknowledge that there are some factual differences in this case from those in Mark, which the Board raises, such as this case being a Section 413 case in which Employer/Insurer arguably could have filed its termination petition and supersedeas request before the surgery, those factual differences were not the basis for our decision in Mark.

Mark focused on the plain language of Section 443 of the Act and the fact that there was no evidence presented in that case that the employer/insurer unilaterally stopped paying benefits to the claimant. Just because this case falls under Section 413 of the Act, as opposed to Section 430, is of no moment. Just as in Mark, Insurer in this case, at all relevant times, provided benefits to Claimant and, at no time, wrongfully stopped providing benefits to Claimant. As this Court stressed in Mark, the language of Section 443 of the Act “is clear in its focus on payments made rather than on periods of disability” and “contains no plain language prohibiting reimbursement of retroactive benefits.” Mark, 894 A.2d at 235 (emphasis added). Thus, “the right to reimbursement relates to payments made after denial of a super-sedeas request.” Id. (emphasis added). Here, it does not matter that the date of service of the medical expenses in question preceded the request for supersedeas— what matters is that the treatment in question was later determined to be ineligible for payment, and the bill for that treatment was submitted to and paid for by Insurer after supersedeas was requested and denied. Thus, we agree with the Board that Insurer is eligible for reimbursement from the Supersedeas Fund. This outcome is clearly in line with the language of the statute and recent case law.⁸

Accordingly, we affirm the order of the Board.

ORDER

NOW, February 2, 2009, the order of the Workers’ Compensation Appeal Board in the above-captioned matter is hereby affirmed.

2 . “This Court’s review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, or a violation of appeal board procedures, and whether necessary findings of fact are supported by substantial evidence.” Mark v. Workers’ Compensation Appeal Board (McCurdy), 894 A.2d 229, 233 n. 6 (Pa.Cmwlth.2006).

3 . Act of June 2, 1915, P.L. 736, added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. § 999(b). Section 443(b) provides, in pertinent part:

(b) There is hereby established a special fund in the State Treasury, separate and apart from all other public moneys or funds of this Commonwealth, to be known as the Workmen’s Compensation Supersedeas Fund. The purpose of this fund shall be to provide moneys for payments pursuant to subsection (a), to include reimbursement to the Commonwealth for any such payments made from general revenues. The department shall be charged with the maintenance and conservation of this fund.

77 P.S. § 999(b).

4 . Section 443(a) provides:

(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. Application for reimbursement shall be made to the department on forms prescribed by the department and furnished by the insurer. Applications may be assigned to a workmen’s compensation referee for a hearing and determination of eligibility for reimbursement pursuant to this act. An appeal shall lie in the manner and on the grounds provided in section 423 of this act, from any allowance or disallowance of reimbursement under this section.

77 P.S. § 999(a).

5 .Section 413(a) provides:

A workers’ compensation judge may, at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before such workers' compensation judge, if it be proved that such notice of compensation payable or agreement was in any material respect incorrect.

77 P.S. § 771.

6 . The Bureau further explains:

If, as Insurer posits, the providers' billing date is the only date relevant to the reimbursement analysis, both the Fund and the courts must necessarily determine 1) whether the bill submitted by the insurer fer Fund reimbursement was the first one issued by the provider for the treatment; ⁸ 2) whether the bill was timely paid; or 3) whether the insurer had properly paid, denied, or repriced the bill.

8 In contrast, the proofs of payment insurers currently provide to the Fund never show the dates when providers submit their bills to the insurers.

(Bureau's Br. at 12 & n.8.)

7 . Section 430 states:

a) The lien of any judgment entered upon any award shall not be divested by any appeal.

(b) Any insurer or employer who terminates, decreases or refuses to make any payment provided for in the decision without filing a petition and being granted a supersedeas shall be subject to a penalty as provided in section 435, except in the case of payments terminated as provided in section 434.

77 P.S. §971.

8 . Although Westmoreland held that the general rule was that supersedeas reimbursement may not operate retroactively, the more recent cases in Mark and Consolidated Freight-ways further clarified the issue. Moreover, contrary to the Bureau's argument, Insurer does not dispute the holding in Stonebrdker that an insurer must continue to pay medical benefits during the pendency of termination petition litigation.