         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Philadelphia,                   :
                   Petitioner           :
                                        :
            v.                          :
                                        :
Workers’ Compensation                   :
Appeal Board (Tucker),                  :   No. 1618 C.D. 2017
                 Respondent             :   Submitted: March 23, 2018



BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                     FILED: June 26, 2018



            The City of Philadelphia (Employer) petitions for review of the October
3, 2017 order of the Workers’ Compensation Appeal Board (Board) that affirmed
the decision of the workers’ compensation judge (WCJ) denying Employer’s Review
Petition and Modification Petition, both of which sought reimbursement of
Employer’s subrogation lien against Claimant’s third-party recovery. We affirm.
            The relevant facts are not in dispute, as the parties entered into a
Stipulation of Facts before the WCJ. WCJ’s Findings of Fact (F.F.) No. 1. On May
18, 2009, Estella Tucker (Claimant) was injured in a motor vehicle accident while
in the course and scope of her employment with Employer’s Police Department.
WCJ’s Decision at 3. On June 2, 2009, Employer issued a notice of compensation
payable1 (NCP) describing Claimant’s work-related injury and setting forth an
average weekly wage of $1,239.08 and a temporary total disability rate of $826.05.
Id. The NCP further indicated that Claimant would be paid what is commonly
known as Heart and Lung Act2 benefits in lieu of workers’ compensation benefits.
Id. Claimant was temporarily disabled from May 19, 2009 through September 7,
2009 and was paid a total of $15,796.88 in Heart and Lung salary continuance
benefits during her period of disability pursuant to the NCP. Stipulation of Facts at
¶ 3. Employer also paid $8,364.01 in medical benefits pursuant to the NCP.3 Id. at
¶ 9.
                At some point, Claimant filed a lawsuit against the tortfeasors
responsible for her accident. Stipulation of Facts at ¶ 6. The case was heard before
an arbitrator who entered an award in Claimant’s favor in the amount of $71,000.00.4
Stipulation of Facts at ¶ 8.
                On June 2, 2015, Employer filed a Modification Petition and a Review
Petition seeking reimbursement of its subrogation lien against Claimant’s recovery
from the tortfeasors.5 WCJ’s Decision at 3. The WCJ concluded that Employer is

       1
          A notice of compensation payable is a form by which the employer unilaterally
acknowledges a compensable injury and commences the payment of compensation. See Section
406.1 of the 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. § 717.1.
       2
           Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-638.
       3
         Claimant returned to modified duty work at no wage loss and then subsequently to full
duty work at no wage loss. Stipulation of Facts at ¶¶ 4-5. Employer issued a notice of suspension
that suspended Claimant’s wage loss benefits as of January 27, 2010. WCJ’s Decision at 3.
       4
        Out of this sum, Claimant paid a total of $26,357.00 to her attorney for litigation fees and
expenses. Stipulation of Facts at ¶ 8. Her attorney also set aside $15,654.00 to satisfy a workers’
compensation lien Employer asserted against Claimant’s third-party recovery. Id. at ¶ 10.
       5
         Employer asserted it is entitled to repayment in the amount of $13,216.80, which
represents 16 weeks of temporary total disability benefits at the weekly rate of $826.05. F.F. No.
                                                 2
precluded from seeking subrogation against Claimant’s third-party recovery for
Heart and Lung Act benefits paid to Claimant. WCJ’s Conclusions of Law No. 2.
Employer appealed to the Board, which affirmed. Employer now petitions this Court
for review of the Board’s order,6 arguing that Employer is entitled to subrogate
against Claimant’s recovery for Heart and Lung benefits it paid to Claimant.
                Before discussing Employer’s specific arguments, a review of the three
statutes relevant to the subrogation claim here is in order. We will review: (i) the
Workers’ Compensation Act;7 (ii) the Heart and Lung Act; and (iii) the Motor
Vehicle Financial Responsibility Law (MVFRL).8
                The Workers’ Compensation Act applies to public and private
employers and compensates employees who sustain a work-related injury for their
medical bills and lost wages. City of Phila. v. Zampogna, 177 A.3d 1027, 1029 (Pa.
Cmwlth. 2017). Under the Workers’ Compensation Act, when an employee is
totally disabled from performing his pre-injury job, he is entitled to two-thirds of his
pre-injury wages. Id.; see also Section 306(a) of the Workers’ Compensation Act,
77 P.S. § 511(1).
                The Heart and Lung Act provides for the payment of full salary and all
medical expenses to police officers and other public safety employees temporarily
unable to perform their job because of a work-related injury. Zampogna, 177 A.3d

4. Employer also claimed entitlement to repayment in the amount of $8,364.01 for medical
benefits paid. Id.
       6
         Our review is limited to determining whether constitutional rights were violated, whether
the adjudication is in accordance with the law and whether necessary findings of fact are supported
by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
       7
           Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
       8
           75 Pa. C.S. §§ 1701-1799.7.

                                                3
at 1029; see Section 1(a) of the Heart and Lung Act, 53 P.S. § 637(a). Police officers
and public safety employees entitled to Heart and Lung Act benefits are also entitled
to benefits under the Workers’ Compensation Act.9 Zampogna, 177 A.3d at 1029;
see City of Erie v. Workers’ Comp. Appeal Bd. (Annunziata), 838 A.2d 598, 604–05
(Pa. 2003) (stating that an employer’s “obligation to pay Heart and Lung benefits ‘is
concurrent with, not in lieu of, its obligation’ pursuant to the workers’
compensation scheme[]”) (emphasis in original). However, the employee must turn
over and pay into the public employer’s treasury any workers’ compensation
collected. Section 1(a) of the Heart and Lung Act, 53 P.S. § 637(a). “Self-insured
public employers that pay Heart and Lung benefits do not make workers’
compensation payments because they would simply be returned to the employer.”
Zampogna, 177 A.3d at 1029. “Nevertheless, self-insured public employers issue a
notice of compensation payable to employees receiving Heart and Lung benefits.”
Id.
               Section 319 of the Workers’ Compensation Act provides employers a
right of subrogation against an employee’s tort recovery to the extent of the workers’
compensation payable. See 77 P.S. § 671. Although the Heart and Lung Act does
not contain a similar provision, under common law public employers are permitted
to subrogate their Heart and Lung payments from the employee’s third-party tort
recovery. Zampogna, 177 A.3d at 1030.
               This paradigm was upended in 1984, however, at least with respect to
work injuries arising from motor vehicle accidents, when the General Assembly
enacted the MVFRL. Id. “Section 1720 of the [MVFRL] expressly abolished an

       9
          Unlike the Workers’ Compensation Act, the Heart and Lung Act provides compensation
only where the disability is temporary and does not apply where the disability is permanent. Colyer
v. Pa. State Police, 644 A.2d 230, 233 (Pa. Cmwlth. 1994); see Section 1(a) of the Heart and Lung
Act, 53 P.S. § 637(a) (stating benefits are for “temporary” disabilities).
                                                4
employer’s ability to subrogate workers’ compensation payments.” Id. In particular,
the enacted 1984 version of Section 1720 stated:

                In actions arising out of the maintenance or use of a motor
                vehicle, there shall be no right of subrogation or
                reimbursement from a claimant’s tort recovery with
                respect to workers’ compensation benefits, benefits
                available under Section 1711 (relating to required
                benefits), 1712 (relating to availability of benefits) or 1715
                (relating to availability of adequate limits) or benefits in
                lieu thereof paid or payable under Section 1719 (relating
                to coordination of benefits).

Act of February 12, 1984, P.L. 26, No. 12, § 3, as amended by the Act of February
12, 1984, P.L. 53, No. 12, § 3.
                In 1990, the General Assembly amended Section 1720, replacing the
language “benefits in lieu thereof paid or payable” with “benefits paid or payable by
a program, group contract or other arrangement whether primary or excess[.]”10
Specifically, Section 1720 now provides:

                In actions arising out of the maintenance or use of a motor
                vehicle, there shall be no right of subrogation or
                reimbursement from a claimant’s tort recovery with
                respect to workers’ compensation benefits, benefits
                available under section 1711 (relating to required
                benefits), 1712 (relating to availability of benefits) or 1715
                (relating to availability of adequate limits) or benefits paid
                or payable by a program, group contract or other
                arrangement whether primary or excess under section
                1719 (relating to coordination of benefits).

75 Pa. C.S. § 1720. “This Court has interpreted both versions of Section 1720 to
designate Heart and Lung benefits as a type not eligible for subrogation where the
      10
           See Act of February 7, 1990, P.L. 11, No. 6, § 9.

                                                 5
injury arises from a motor vehicle accident.” Stermel v. Workers’ Comp. Appeal
Bd., 103 A.3d 876, 879 (Pa. Cmwlth. 2014) (citing Fulmer v. Pa. State Police, 647
A.2d 616, 618-19 (Pa. Cmwlth. 1994)).11
                 In 1993, the General Assembly enacted the act commonly referred to
as Act 44,12 which amended the Workers’ Compensation Act and expressly repealed
Sections 1720 and 172213 of the MVFRL “insofar as they relate to workers’
compensation payments or other benefits under the Workers’ Compensation Act.”
Section 25(b) of Act 44. Our Supreme Court has held that Section 25(b) of Act 44
restored an employer’s right of subrogation for workers’ compensation benefits but
did “not impact any anti-subrogation mandates pertaining to [Heart and Lung Act]
benefits.” Oliver v. City of Pittsburgh, 11 A.3d 960, 966 (Pa. 2011). Oliver,
however, did not address the 1990 amendments to Section 1720 of the MVFRL. See
id. at 964-65 (deeming issue waived).
                 In Zampogna, which also involved Employer, this Court addressed
whether Section 1720 of the MVFRL prohibited an employer from subrogating its
payment of Heart and Lung Act benefits to a claimant from his third-party tort


       11
          In Fulmer, this Court decided, as a question of first impression, whether Section 1720 of
the MVFRL applied to benefits received under the Heart and Lung Act. Fulmer, 647 A.2d at 618.
We agreed that the language of the pre-1990 amendment version of Section 1720 of the MVFRL
controlled in that case, but we did not view that “as determinative of the outcome, believing this
change of language to be more of a clarification than an alteration.” Id. We stated, therefore, that
any result should apply to both versions of the statute. Id. We concluded that Section 1720’s
prohibition against subrogation of tort recovery applied to benefits payable under the Heart and
Lung Act. Id. at 619.
       12
            Act of July 2, 1993, P.L. 190, No. 44.
       13
           Section 1722 prohibits a plaintiff from recovering in any action against a tortfeasor
benefits such as workers’ compensation “or any program, group contract or other arrangement for
payment of benefits as defined in Section 1719.” 75 Pa. C.S. § 1722.

                                                     6
recovery, and, specifically, whether the 1990 amendments to Section 1720 of the
MVFRL restored an employer’s right of subrogation for Heart and Lung benefits.
We held that (i) the 1990 amendment to Section 1720 did not restore a public
employer’s right to subrogation for Heart and Lung Act benefits from an employee’s
tort award arising out of a motor vehicle accident, and (ii) Heart and Lung Act
benefits remain subject to the anti-subrogation mandate in Section 1720 of the
MVFRL. Zampogna, 177 A.3d at 1038.
               Recently, in City of Philadelphia v. Hargraves (Pa. Cmwlth., No. 1928
C.D. 2016, filed February 28, 2018),14 this Court, sitting en banc, ruled that
Employer was not entitled to subrogation of Heart and Lung Act benefits paid as a
result of a work-related injury arising out of a motor vehicle accident from an
employee’s third-party recovery. Hargraves, slip op. at 12.
               With this background and precedent in mind, we now turn to
Employer’s arguments. Employer first argues that the Board erred in concluding
that Employer does not have a right of subrogation here.15 Employer maintains that
the 1990 amendments to the MVFRL restored an employer’s common law right of
subrogation for Heart and Lung Act benefits paid to employees for injuries arising
out of the use and/or maintenance of an automobile and that prohibiting subrogation
conflicts with the legislative purpose of the Heart and Lung Act.                      Employer


       14
          Hargraves is an unreported opinion and, therefore, can only be considered for its
persuasive value. See Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code
§ 69.414(a). We mention this case, however, because it is this Court’s most recent en banc decision
addressing Section 1720 of the MVFRL and whether an employer can subrogate against an
employee’s third-party recovery for Heart and Lung Act benefits.
       15
          Employer argues that the WCJ and Board erred because they failed to perform a statutory
analysis of the 1990 amendments to Section 1720 of the MVFRL and instead relied on case law
which never addressed this exact issue.

                                                7
acknowledges that in Zampogna, “this Court rejected the very argument [Employer]
has raised on this issue in the instant matter.” Employer’s Brief at 22. Nonetheless,
Employer argues that Zampogna was wrongly decided and urges this Court to
overrule that case.16
                 Employer contends that this Court’s interpretation of the phrase
“benefits paid or payable by a program, group contract or other arrangement whether
primary or excess under Section 1719” contained in Section 1720 failed to
acknowledge that the phrase concludes with the words “under Section 1719.”17
Employer further argues that this Court’s conclusion in Zampogna is flawed because
it is premised on our statement that there is an “understanding” based on past
precedent that “the language ‘program, group[] contract or other arrangement’ in
Section 1720 has been understood to encompass Heart and Lung Act benefits.”

       16
         To the extent Employer, who was also a party in both Zampogna and Hargraves, raises
the same arguments now that it raised in those cases, we will not repeat our analysis here.
       17
            Section 1719 of the MVFRL, entitled “Coordination of benefits[,]” provides:

                 (a)     General rule.--Except for workers’ compensation, a policy
                 of insurance issued or delivered pursuant to this subchapter shall be
                 primary. Any program, group contract or other arrangement for
                 payment of benefits such as described in section 1711 (relating to
                 required benefits), 1712(1) and (2) (relating to availability of
                 benefits) or 1715 (relating to availability of adequate limits) shall be
                 construed to contain a provision that all benefits provided therein
                 shall be in excess of and not in duplication of any valid and
                 collectible first party benefits provided in section 1711, 1712 or
                 1715 or workers’ compensation.

                 (b) Definition.--As used in this section the term “program, group
                 contract or other arrangement” includes, but is not limited to,
                 benefits payable by a hospital plan corporation or a professional
                 health service corporation subject to 40 Pa.C.S. Ch. 61 (relating to
                 hospital plan corporations) or 63 (relating to professional health
                 services plan corporations).

75 Pa. C.S. § 1719 (emphasis in original).
                                                    8
Employer’s Brief at 36. Employer contends that there is no such precedent and
points out that in Zampogna this Court acknowledged that the understanding was
based on dicta in Fulmer.
                Employer is correct that in Zampogna this Court acknowledged that
Fulmer’s discussion of the 1990 amendments was dicta.18 See Zampogna, 177 A.3d
at 1037. Further, after reviewing the relevant statutes and leading case law, we
acknowledged that case law precedent had not squarely considered the meaning of
the 1990 amendment of Section 1720 of the MVFRL. Id. at 1036. However,
contrary to Employer’s assertion, this Court analyzed the “program, group contract,
or other arrangement” language in Section 1720 and its relationship to that same
language contained in Section 1719. See id. at 1036-37. Further, although we
acknowledged Fulmer’s statement that the “catch-all phrase ‘or benefits paid or
payable by a program, group contract or other arrangement’ extends the applicability
of [Section 1720] to the Heart and Lung Act[]” was dicta, we stated that it “correctly
construes Section 1720[]” and, thus, confirmed it as part of our holding. Id. at 1037
(internal quotation marks omitted). Thus, this Court has held that the phrase
“program, group contract or other arrangement” includes Heart and Lung benefits.
See id.
                Further, the phrase “under Section 1719” (which concerns coordination
of benefits) modifies “whether primary or excess”; it does not incorporate Section
1719 into Section 1720. Employer’s argument would have us read Section 1720’s
provision as “benefits paid or payable by a program, group contract or other
arrangement [] under Section 1719[,]” effectively ignoring the phrase “whether
primary or excess.” The phrase “whether primary or excess under Section 1719”

      18
           See supra note 11.

                                           9
simply makes the priority directive of Section 1719 irrelevant. Zampogna, 177 A.3d
at 1037. Thus, we reiterate that “Section 1719 has no effect on the scope or meaning
of the catch-all phrase ‘benefits paid or payable by a program, group contract or
other arrangement whether primary or excess’ [under Section 1719] set forth in
Section 1720.”19 Id.
               Employer also argues that the “plain and unambiguous” language of
Section 1722 of the MVFRL supports Employer’s position that Section 1720 cannot
be read to incorporate Heart and Lung benefits as benefits subject to Section 1720’s
anti-subrogation provision. Section 1722 provides:

               In any action for damages against a tortfeasor, or in any
               uninsured or underinsured motorist proceeding, arising
               out of the maintenance or use of a motor vehicle, a person
               who is eligible to receive benefits under the coverages set
               forth in this subchapter, or workers’ compensation, or any
               program, group contract or other arrangement for payment
               of benefits as defined in section 1719 (relating to
               coordination of benefits) shall be precluded from
               recovering the amount of benefits paid or payable under
               this subchapter, or workers’ compensation, or any
               program, group contract or other arrangement for payment
               of benefits as defined in section 1719.
75 Pa. C.S. § 1722.

               Without citing any authority, Employer argues that Section 1722 does
not include Heart and Lung Act benefits among those items that are not recoverable
in a third-party action against a tortfeasor. Therefore, Employer maintains that
plaintiffs can recover in the underlying third-party action the amount of wage loss

       19
           Consequently, the definition of “program, group contract or other arrangement” that
appears in Section 1719(b) has no effect on Section 1720. Further, as stated in Zampogna, the
definition that appears in section 1719(b) expressly “is limited ‘to this section,’ i.e., Section 1719.”
Zampogna, 177 A.3d at 1037.
                                                  10
and medical benefits paid pursuant to the Heart and Lung Act. Employer maintains
that allowing an employer to subrogate for Heart and Lung Act benefits will prevent
double recovery by a plaintiff.
               Contrary to Employer’s assertion, this Court’s precedent states that
Section 1722 includes Heart and Lung Act benefits and precludes a plaintiff involved
in a motor vehicle accident from recovering those benefits from the responsible
tortfeasors. See Stermel, 103 A.3d at 879 (stating Section 1722 prohibits a plaintiff
injured in a motor vehicle accident from recovering from the third-party tortfeasor
lost wages covered by workers’ compensation or Heart and Lung benefits); see also
Pa. State Police v. Workers’ Comp. Appeal Bd. (Bushta), ___ A.3d ___, ___ (Pa.,
No. 14 WAP 2017, filed May 29, 2018) (Bushta II), slip op. at 15 (quoting our
statement from Stermel and stating that the claimant in Bushta II “was precluded
from recovering his lost wages and medical benefits from the tortfeasors under the
MVFRL because [c]laimant’s wages and medical benefits were fully covered by the
Heart and Lung Act”); Commonwealth of Pa. v. Workers’ Comp. Appeal Bd. (Piree),
182 A.3d 1082, 1089 (Pa. Cmwlth. 2018) (stating that “the reason Heart and Lung
benefits are not subject to subrogation is because Section 1722 of the MVFRL, 75
Pa. C.S. § 1722, precludes plaintiffs from recovering those benefits from the
responsible tortfeasors”).20



       20
          Even if we were to accept Employer’s interpretation of “program, group contract or other
arrangement,” the use of that phrase in Section 1722 does not compel the result Employer seeks.
MVFRL Section 1722 expressly incorporates the definition contained in Section 1719 by stating,
“or any program, group contract or other arrangement for payment of benefits as defined in
section 1719.” 75 Pa. C.S. § 1722 (emphasis added). This is unlike Section 1720, which does not
use the language “as defined in” and, thus, does not expressly qualify the phrase “any program,
group contract or other arrangement” as being defined by Section 1719. As stated, Section 1720
does not incorporate Section 1719 into Section 1720.

                                               11
                   Even if we were to accept Employer’s assertion regarding the potential
for double recovery, we decline, in this context, to extend the MVFRL beyond its
terms based on a policy argument of inequities, as that is a matter for the General
Assembly. Notably, in Oliver, our Supreme Court reversed this Court’s holding,
wherein we allowed for subrogation of Heart and Lung benefits. Oliver, 11 A.3d at
966. The Supreme Court was presented with the issue of whether, as a result of
Section 25(b) of Act 44 restoring employers’ subrogation rights arising from
payment of workers’ compensation benefits, such restoration also afforded public
employers a right of subrogation for benefits paid under the Heart and Lung Act. Id.
at 961. On that same issue, we had ruled that a public employer was entitled to
subrogation for Heart and Lung Act benefits paid as a result of a work-related motor
vehicle accident.21 We explained that it would be unreasonable to protect only
private interests and permit a private employer that has paid workers’ compensation
benefits to subrogate against a third-party recovery for injuries sustained in a motor
vehicle accident while holding that a public employer that has paid Heart and Lung
benefits under the same circumstance could not subrogate.22 Our Supreme Court
disagreed, however, and did not consider such an approach to be unreasonable. It
noted:

                   Significantly, the MVFRL’s remedial scheme has become
                   increasingly complicated, in light of the need to address
                   premium costs while maintaining financial viability in the
                   insurance industry. The Legislature has made numerous
                   specific refinements impacting the competing, and
                   legitimate, rights and interests of insurers, employers, and
                   injured persons. In this landscape, where there are mixed

          Oliver v. City of Pittsburgh, 977 A.2d 1232, 1242 (Pa. Cmwlth. 2009) (Oliver I), rev’d,
         21

Oliver, 11 A.3d at 966.
         22
              Oliver I, 977 A.2d at 1241.
                                               12
                policy considerations involved, we decline to extend clear
                and specific refinements beyond their plain terms.

Id. at 966. The Supreme Court further stated that, “[a]lthough the [Workers’
Compensation Act] also embodies a similar remedial scheme, the [Heart and Lung
Act’s] more favorable treatment of public-safety employees who are temporarily
disabled suggests against treating an overlap as an equivalency.” Id. Thus, even if
Employer is correct that there is the potential for double recovery for recipients of
Heart and Lung benefits, the Heart and Lung Act treats public safety employees
more favorably, see id., and any alteration to this treatment is for the General
Assembly to enact.
                Accordingly, we reaffirm our holdings in Zampogna that: (i)
subrogation of Heart and Lung benefits is prohibited by the anti-subrogation of the
MVFRL; and (ii) the 1990 MVFRL amendment did not restore a public employer’s
right to subrogate Heart and Lung Act benefits from an employee’s tort recovery
arising from a motor vehicle accident.
                Lastly, Employer argues that it has a statutory right of subrogation
pursuant to Section 319 of the Workers’ Compensation Act.23 Employer attempts to
distinguish Zampogna by stating the Zampogna Court, like the Board below,
misconstrued Employer’s argument. Employer states that it is not asserting that
some portion of Heart and Lung benefits paid to or on behalf of Claimant represents
payment of workers’ compensation benefits. Employer concedes this argument has
been rejected by our Supreme Court in Oliver and by this Court in Stermel. Rather,
Employer now argues that the plain language of Section 319 of the Workers’
Compensation Act contains a right of subrogation to the extent that benefits are

      23
           77 P.S. § 671.

                                           13
payable under the Act. Employer claims that whether benefits are actually paid
under the Workers’ Compensation Act is immaterial. Employer maintains that in
every Heart and Lung Act case, the Workers’ Compensation Act requires the
municipality to issue a notice of compensation payable; thus, benefits become
payable pursuant to the Workers’ Compensation Act as a matter of law.24
               This distinction does not compel a different result. In Stermel, we
rejected the argument that the issuance of a notice of compensation payable
transforms Heart and Lung Act benefits into workers’ compensation benefits; we
stated the two are separate.25 Stermel, 103 A.3d at 883. In Zampogna, we relied on
our holding in Stermel and declined to consider payments made to the claimant “as
anything other than what they are: Heart and Lung Act benefits[.]” Zampogna, 177
A.3d at 1038; cf. City of Phila. v. Workers’ Comp. Appeal Bd. (Ford-Tilghman), 996
A.2d 569, 573 (Pa. Cmwlth. 2010) (stating that “[a]lthough the Heart and Lung Act
and the [Workers’ Compensation Act] are similar in purpose, the two acts operate
separately from one another.”). We held that an employer “may not subrogate a
portion of Heart and Lung Act benefits under the artifice that those benefits are
payable as workers’ compensation benefits.”                 Zampogna, 177 A.3d at 1038
(emphasis added).          Based on this precedent, we recently held that the
Commonwealth, as the employer, was not entitled to subrogate for Heart and Lung
Act benefits an employee received during a period for which the employee was

       24
          Contrary to Employer’s argument in Zampogna, Employer now argues that this amount
is not necessarily two-thirds of a claimant’s Heart and Lung Act benefit. See Zampogna, 177 A.3d
at 1038.
       25
          In so concluding, we noted our Supreme Court’s holding in Oliver, stating, “[f]or its own
reasons, the General Assembly has decided to treat Heart and Lung benefits differently, at least
with respect to subrogation from a claimant’s tort recovery arising from a motor vehicle accident.”
Stermel, 103 A.3d at 883-84.

                                               14
entitled to both Heart and Lung benefits and workers’ compensation benefits. Piree,
182 A.3d at 1083 & 1090. 26
              Recently, our Supreme Court issued its decision in Bushta II, which
affirmed this Court’s decision in Pennsylvania State Police v. Workers’
Compensation Appeal Board (Bushta), 149 A.3d 118 (Pa. Cmwlth. 2016) (Bushta
I). In our underlying decision, we had applied our holding from Stermel. See Bushta
I, 149 A.3d at 122. In Bushta II, our Supreme Court addressed whether a self-insured
municipality is entitled to subrogation to the extent of compensation payable
pursuant to the Workers’ Compensation Act where the municipality has concurrent
obligations to the injured employee under both the Workers’ Compensation Act and
the Heart and Lung Act. Bushta II, ___ A.3d at ____, slip op. at 9. Our Supreme
Court acknowledged that it has held that a claimant may be entitled to benefits for
concurrent employment under the Workers’ Compensation Act while also receiving
Heart and Lung Act benefits. Id. at ____, slip op. at 11 (discussing Annunziata, 838
A.2d at 604–05, in which the Supreme Court held that a police officer injured on
duty could receive Heart and Lung Act benefits and workers’ compensation benefits
for wages he lost as a part-time security guard as a result of his work injury).
However, our Supreme Court cautioned that, while a claimant who is receiving Heart
and Lung benefits may seek and receive workers’ compensation benefits for
concurrent employment, the Heart and Lung Act requires the claimant to turn over
to his employer all workers’ compensation benefits received or collected. Bushta II,
___ A.3d at ____, slip op. at 12. Accordingly, our Supreme Court held that if the


       26
          We did, however, recognize that, in Piree, the claimant was entitled only to workers’
compensation benefits after a particular date. Piree, 182 A.3d at 1090. Therefore, we remanded
the matter to the WCJ to determine the employer’s entitlement to subrogation for benefits paid
solely while the claimant was entitled to benefits under the Workers’ Compensation Act. Id.
                                              15
claimant does not actually receive or collect workers’ compensation benefits, there
can be no basis for subrogation.27 Id.
              Here, Employer paid Claimant Heart and Lung Act benefits during the
entire time that Claimant was temporarily disabled by her work-related injury. See
Stipulation of Facts at ¶ 3. Claimant did not actually receive or collect any workers’
compensation benefits. Therefore, there is no basis for subrogation. See Bushta II,
Piree; see also Zampogna. Consequently, based on the foregoing, we conclude that
the Board did not err in affirming the WCJ’s decision denying Employer’s Review
Petition and Modification Petition, both of which sought reimbursement of
Employer’s subrogation lien for Heart and Lung Act benefits against Claimant’s
third-party recovery. Accordingly, we affirm.




                                            __________________________________
                                            CHRISTINE FIZZANO CANNON, Judge




       27
          Additionally, our Supreme Court also rejected the employer’s argument that, because
the claimant’s medical bills were paid using the “re-pricing” formula set forth in the Workers’
Compensation Act, such medical payments constituted compensation payable under the Workers’
Compensation Act. Bushta II, ___ A.3d at ____, slip op. at 17. Because payment of the claimant’s
medical care and treatment is required under the Heart and Lung Act, those payments constituted
a Heart and Lung Act benefit, regardless of the pricing scheme used. Id.
                                              16
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Philadelphia,                :
                   Petitioner        :
                                     :
            v.                       :
                                     :
Workers’ Compensation                :
Appeal Board (Tucker),               :   No. 1618 C.D. 2017
                 Respondent          :

                                ORDER


            AND NOW, this 26th day of June, 2018, the order of the Workers’
Compensation Appeal Board, dated October 3, 2017, is AFFIRMED.




                                  __________________________________
                                  CHRISTINE FIZZANO CANNON, Judge
