       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Karan and Pushpa Singh, and          :
Mandeep Rana, deceased,              :
                        Petitioners  :
                                     :
            v.                       :     No. 240 C.D. 2019
                                     :
Workers’ Compensation Appeal Board :
(Asha Corporation),                  :
                         Respondent :
                                     :
Asha Corporation,                    :
                         Petitioner  :
                                     :
            v.                       :     No. 347 C.D. 2019
                                     :     Submitted: March 26, 2020
Workers’ Compensation Appeal Board :
(Singh, Singh, and Rana, deceased),  :
                         Respondents :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE J. ANDREW CROMPTON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                       FILED: May 1, 2020


      In these consolidated matters, Karan and Pushpa Singh (Claimants) and Asha
Corporation (Employer) petition for review of an order of the Workers’
Compensation Appeal Board (Board), dated February 28, 2019. The Board reversed
the decision of a Workers’ Compensation Judge (WCJ), which granted Claimants’
fatal claim petition requesting benefits as a result of the death of Mandeep Rana
(Decedent), Claimants’ son. For the reasons set forth below, we reverse the Board’s
order in part, affirm the Board’s order in part, and remand the matter to the Board
for further proceedings consistent with this opinion.
                               I. BACKGROUND
      Employer is a franchisee of Dunkin’ Donuts with three locations in
Pennsylvania. Decedent worked for Employer as a restaurant manager “in training.”
Decedent worked primarily out of Employer’s Wyncote location but was required
to work at Employer’s other locations as needed. On November 12, 2010, while
traveling to another one of Employer’s locations, Decedent was involved in a motor
vehicle accident. On November 14, 2010, Decedent died as a result of the injuries
he sustained in the motor vehicle accident.
      On August 9, 2012, Claimants, who resided in India at the time of Decedent’s
death, filed a fatal claim petition, alleging that Decedent was involved in a
work-related motor vehicle accident on November 12, 2010, which ultimately led to
Decedent’s death on November 14, 2010. Claimants further alleged that they were
totally dependent on Decedent for support at the time of Decedent’s death. In
support of this contention, Mr. Singh testified regarding, inter alia, Claimants’
sources of income, Claimants’ monthly expenses, money that Decedent sent to
Claimants on a monthly basis in 2008 and 2009, and money that Decedent sent to
Claimants in January and March 2010.
      On October 15, 2015, the WCJ issued a decision and order, granting
Claimants’ fatal claim petition. In so doing, the WCJ found, inter alia: (1) Decedent
was acting in the course and scope of his employment with Employer at the time of
the November 12, 2010 motor vehicle accident because Decedent was furthering


                                          2
Employer’s business affairs and/or was on a special assignment for Employer;
(2) reciprocity for workers’ compensation claims exists between India and the
United States as required by Section 310 of the Workers’ Compensation Act (Act);1
(3) Claimants were dependent on Decedent for support; (4) Decedent’s average
weekly wage (AWW) was $1,500 per month or $375 per week, with a corresponding
compensation rate of $337.50 or 90% of Decedent’s AWW; and (5) Employer was
responsible for the payment of all of Decedent’s reasonable and necessary medical
expenses and for the reimbursement of the Department of Public Welfare (DPW)2
lien in the amount of $71,330.84. Employer appealed the WCJ’s decision to the
Board, and the Board reversed. In so doing, the Board concluded that Decedent was
not acting in the course and scope of his employment at the time of the
November 12, 2010 motor vehicle accident.
       Claimants petitioned this Court for review. By opinion and order dated
September 29, 2017, this Court concluded that Decedent was acting in the course

       1
         Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 563. Section 310 of the Act provides,
in relevant part:
                       Alien widows, children and parents, not residents of the
               United States, shall be entitled to compensation, but only to the
               amount of fifty per centum of the compensation which would have
               been payable if they were residents of the United States[;]
               [p]rovided, [t]hat compensation benefits are granted residents of the
               United States under the laws of the foreign country in which the
               widow, children or parents reside. . . . In no event shall any
               nonresident alien widow or parent be entitled to compensation in the
               absence of proof that the alien widow or parent has actually been
               receiving a substantial portion of his or her support from the
               decedent.
       2
         At some point after DPW asserted its lien in this matter, the General Assembly
redesignated DPW as the Department of Human Services. See Section 103 of the Human Services
Code, Act of June 13, 1967, P.L. 31, as amended, added by the Act of September 24, 2014,
P.L. 2458, 62 P.S. § 103.

                                                3
and scope of his employment at the time of the November 12, 2010 motor vehicle
accident. As a result, this Court reversed the Board’s order and remanded the matter
to the Board for the consideration of the following issues previously raised by
Employer on appeal from the WCJ’s decision and order, but which the Board
previously declined to reach:
             1. Whether the WCJ erred in the calculation of
                Decedent’s [AWW] and compensation rate;
             2. Whether the WCJ erred in finding reciprocity exists
                for a United States citizen dependent pursuant to the
                workers’ compensation laws of India;
             3. Whether Decedent’s parents[, Claimants in this
                matter,] failed to establish they received a substantial
                portion of their support from Decedent at the time of
                his death and were substantially dependent upon him;
             4. Whether the WCJ erred by failing to account for
                Employer’s subrogation interest against a third-party
                recovery made by Decedent’s parents; and
             5. Whether the WCJ erred in ordering payment of a DPW
                lien which was already paid out of the third-party
                recovery.
Rana v. Workers’ Comp. Appeal Bd. (Asha Corp.), 170 A.3d 1279, 1286
(Pa. Cmwlth. 2017).
      On remand, the Board again reversed the WCJ’s decision. In so doing, the
Board concluded that there was absolutely no evidence in the record to support the
WCJ’s finding that reciprocity exists for a United States citizen under India’s
workers’ compensation law. The Board reasoned that the document attached to
Claimants’ brief to the WCJ, which Claimants purported to be the relevant sections
of India’s workers’ compensation law, could not support Claimants’ burden of proof
under the fatal claim petition because such document was submitted to the WCJ after
the close of the evidentiary record. Although the Board believed that the WCJ

                                         4
should have denied Claimants’ fatal claim petition on this basis, the Board went on
to address the remainder of the issues identified by this Court in its
September 29, 2017 remand opinion and order. First, the Board concluded that the
WCJ’s calculation of Decedent’s AWW and corresponding compensation rate was
erroneous. The Board reasoned that Decedent’s wages were fixed by the month,
and, therefore, the WCJ should have calculated Decedent’s AWW pursuant to
Section 309(b) of the Act3—i.e., ($1,500 x 12)/52 or $346.15. The Board further
reasoned that the WCJ should have determined Claimants’ corresponding
compensation rate pursuant to Section 307(5) of the Act4—i.e., either 32% of the
AWW for partial dependency or 52% of the AWW for total dependency. Second,
the Board concluded that, while the WCJ’s finding that Claimants were totally
dependent on Decedent for support was not supported by substantial evidence,
Mr. Singh’s credited testimony, when taken as a whole, supported a finding that
Claimants were at least partially dependent on Decedent because Claimants did not
meet their regular monthly expenses with their regular monthly income. Lastly, the
Board concluded that the evidentiary record is devoid of information upon which the
Board could resolve the issues of whether the WCJ erred by failing to account for

       3
         77 P.S. § 582(b). Section 309(b) of the Act provides: “If at the time of the injury the
wages are fixed by the month, the average weekly wage shall be the monthly wage so fixed
multiplied by twelve and divided by fifty-two[.]”
       4
           77 P.S. § 561(5). Section 307(5) of the Act provides:
                If there be neither widow, widower, nor children entitled to
                compensation, then to the father or mother, if dependent to any
                extent upon the employe at the time of the injury, thirty-two per
                centum of wages but not in excess of the Statewide average weekly
                wage[;] . . . [i]f the father or mother was totally dependent upon the
                deceased employe at the time of the injury, the compensation
                payable to such father or mother shall be fifty-two per centum of
                wages, but not in excess of the Statewide average weekly wage.

                                                  5
Employer’s subrogation interest against a third-party recovery made by Claimants
or by ordering payment of the DPW lien. The Board explained that there was no
documentation relative to a third-party settlement that had been submitted into the
record or any discussion about a third-party settlement on the record at any hearing,
and, therefore, it did not have sufficient information to resolve these issues.
Claimants and Employer then petitioned this Court for review.
                           II. ARGUMENTS ON APPEAL
       On appeal,5 Claimants argue that the Board erred by: (1) reversing the WCJ’s
finding of reciprocity for a United States citizen to collect benefits under the
workers’ compensation laws of India; (2) calculating Decedent’s AWW without
consideration of the mandate set forth in Section 307 of the Act that a deceased
employee’s wages should not be less than 50% of the statewide AWW; and
(3) failing to affirm the WCJ’s directive that Employer reimburse DPW for its lien
in the amount of $71,330.84. In its cross-petition for review, Employer argues:
(1) the Board committed an error of law by failing to consider whether Claimants
were dependent on Decedent for support “at the time of the injury”—i.e., at the time
of Decedent’s death; (2) the Board’s finding that Claimants were partially dependent
on Decedent for support is not supported by substantial evidence; and (3) in the event
that this Court concludes that Claimants are entitled to compensation under their
fatal claim petition, the matter should be remanded to the WCJ for consideration of
Claimants’ third-party recovery and its effect on the reimbursement of the DPW lien.
We will discuss the parties’ arguments in the most logical order below.


       5
         “Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact are supported by substantial evidence[,] and whether constitutional
rights were violated.” Combine v. Workers’ Comp. Appeal Bd. (Nat’l Fuel Gas Distrib. Corp.),
954 A.2d 776, 778 n.1 (Pa. Cmwlth. 2008), appeal denied, 967 A.2d 961 (Pa. 2009).

                                              6
                                 III. DISCUSSION
                                   A. Reciprocity
      Claimants argue that the Board erred by reversing the WCJ’s finding of
reciprocity for a United States citizen to collect benefits under the workers’
compensation laws of India, because the relevant sections of India’s workers’
compensation law “provide for the payment of death benefits to dependents residing
in the [United States] of relatives killed in work accidents in India.” (Claimants’ Br.
at 14.) Claimants further argue that it was Employer’s burden to establish a lack of
reciprocity with India’s workers’ compensation law, because Employer asserted
reciprocity as an affirmative defense for the first time in its brief to the WCJ.
Claimants also contend that, even if it was their burden to establish reciprocity, they
were not required to enter the relevant sections of India’s workers’ compensation
law into the evidentiary record to meet their burden of proof, because the WCJ had
the power to and did take judicial notice of such relevant sections of India’s workers’
compensation law. In response, Employer argues that the Board properly concluded
that Claimants failed to meet their burden of proof under their fatal claim petition
because they failed to establish that reciprocity exists for a United States citizen
under India’s workers’ compensation law. More specifically, Employer contends
that the WCJ could not have considered the unauthenticated text that Claimants
submitted after the close of the record, which Claimants purport are the relevant
sections of India’s workers’ compensation law, because such unauthenticated text
was not part of the evidentiary record.
      It is important to recognize that Employer’s entire challenge to the WCJ’s
finding of reciprocity before the Board related to the timing of Claimants’
submission of the content of India’s workers’ compensation law, not the substance


                                          7
of such submission. Employer alleged that Claimants did not meet their burden of
proof because they submitted unauthenticated text, which Claimants purported to be
the relevant sections of India’s workers’ compensation law, to the WCJ after the
close of the evidentiary record. Employer did not argue that Claimants’ submission
was not in fact India’s workers’ compensation law, or a proper translation thereof,
or that India’s workers’ compensation law does not provide workers’ compensation
benefits to United States residents as required by Section 310 of the Act. Thus, we
will limit our analysis to the question of whether Claimants were required to submit
the content of India’s workers’ compensation law into the record, and we will not
consider the question of whether the WCJ properly concluded that reciprocity for
workers’ compensation claims exists between India and the United States.
      While it is true that, “[i]n a fatal claim petition, the surviving family
member[s] bear[] the burden of proving all of the elements necessary to support an
award under the [Act],” Werner v. Workers’ Compensation Appeal Board
(Greenleaf Service Corporation), 28 A.3d 245 (Pa. Cmwlth. 2011), appeal denied,
47 A.3d 849 (Pa. 2012), this does not mean that Claimants were required to “prove”
that India’s workers’ compensation law grants workers’ compensation benefits to
United States residents. Werner, 28 A.3d at 250. This case involves a legal burden,
not an evidentiary one. Claimants, or more accurately, Claimants’ attorney, was
required to set forth what she believed to be the relevant sections of India’s workers’
compensation law and provide a legal argument regarding whether India’s workers’
compensation law grants workers’ compensation benefits to United States residents,
which she did. The WCJ was then required to review India’s workers’ compensation
law and decide whether India’s workers’ compensation law grants workers’
compensation benefits to United States residents—i.e., whether there is reciprocity


                                          8
for workers’ compensation claims between India and the United States. Although
the Judicial Code, 42 Pa. C.S. §§ 101-9913, is not applicable in workers’
compensation proceedings, as it only applies to the “unified judicial system,” 6
common sense dictates that a WCJ should be able to consider any relevant material
or source on foreign law regardless of whether such material or source was submitted
into evidence by a party or was admissible. See Section 5327(b) of the Judicial
Code, 42 Pa. C.S. § 5327(b).7 For these reasons, Claimants were not required to
submit the content of India’s workers’ compensation law into the evidentiary record
for the WCJ to make a determination regarding reciprocity, and, given the argument
raised by Employer on appeal to the Board, we must conclude that the Board erred
by reversing the WCJ’s finding of reciprocity for a United States citizen to collect
benefits under the workers’ compensation laws of India.
                                       B. Dependency
       Employer argues that the Board committed an error of law by failing to
consider whether Claimants were dependent on Decedent for support “at the time of
the injury”—i.e., at the time of Decedent’s death—because, based on Mr. Singh’s
testimony, Decedent made no contributions to Claimants’ support in the 7 months
prior to his death. Employer further argues that the Board’s finding that Claimants
were partially dependent on Decedent for support at the time of his death is not
supported by substantial evidence. Employer contends that, to be dependent, there

       6
          See 42 Pa. C.S. §§ 102-103; see also Indep. Blue Cross v. Workers’ Comp. Appeal Bd.
(Frankford Hosp.), 820 A.2d 868, 874 (Pa. Cmwlth. 2003) (noting that Section 2503 of Judicial
Code, 42 Pa. C.S. § 2503, which addresses rights of participants to receive attorneys’ fees, only
applies to unified judicial system).
       7
         Section 5327(b) of the Judicial Code provides: “In determining the law of any jurisdiction
or governmental unit thereof outside this Commonwealth, the tribunal may consider any relevant
material or source, including testimony, whether or not submitted by a party or admissible under
the rules of evidence.”

                                                9
must be a deficit between Claimants’ reasonable monthly expenses and normal
monthly income and that, because Mr. Singh did not specifically identify Claimants’
monthly expenses, the WCJ could not have determined whether such expenses were
reasonable. In response, Claimants argue that the Board’s finding that Claimants
were partially dependent on Decedent for support at the time of his death was
supported by substantial evidence.
      In workers’ compensation proceedings, “the test of dependency is whether or
not the child’s earnings were needed to provide the parents with some of the ordinary
necessities of life suitable for persons in their class and position, and that the parents
were, consequently, dependent to some extent upon the child at the time of the
accident causing his or her death.” Wyoming Valley Health Care Sys. v. Workers’
Comp. Appeal Bd. (Kalwaytis), 921 A.2d 91, 93 (Pa. Cmwlth. 2007) (citing Lineal
Indus., Inc. v. Worker’s Comp. Appeal Bd. (Essel), 669 A.2d 329, 332-33 (Pa.
1995)). In Lineal Industries, our Supreme Court stated the following about proving
dependency:
                     In order to be eligible for compensation, the father
              or mother must “to any extent” be dependent upon the
              financial contributions of the deceased child. This means,
              simply, that when normal monthly bills extant at the time
              of the child’s death are set off against normal monthly
              income of the parent, there is a deficit, absent the child’s
              contribution. Further, in order to qualify as “dependent,”
              these regular monthly expenditures must be reasonable in
              light of the life circumstances of the parent at the time of
              the child’s death.
Lineal Indus., 669 A.2d at 332. In the context of dependency involving fatal claims,
“at the time of the injury” has been interpreted to mean dependency not just during
the period of time immediately preceding death but also a reasonable period of time



                                           10
prior to death. Dindino v. Weekly Review Publ’g Co., Inc., 149 A.2d 475, 478
(Pa. Super. 1959).8
       Here, Employer is essentially asking this Court to reweigh the evidence
considered by the Board and find that Claimants were not partially dependent on
Decedent for support at the time of his death, which we will not do. See Brown v.
Workers’ Comp. Appeal Bd. (Knight Ridder, Inc./Phila. Newspapers, Inc.),
856 A.2d 302, 307 (Pa. Cmwlth. 2004). In determining whether Claimants were
partially dependent on Decedent for support at the time of his death, the Board
considered Mr. Singh’s testimony:
              Mr. Singh testified that he and his wife were married on
              May 11, 1969[,] and have two sons, one of whom was
              Decedent. They live in Faridabad. Mr. Singh testified that
              he retired from Goodyear Tire Company in 2005, and that
              his wife had not worked outside the home. They lived in
              a house with no mortgage. He did not have a credit card.
              Mr. Singh stated that he received a private pension
              of 765 rupees per month and a government pension of
              about 500 rupees. He received about $50.00 per month in
              rental income. He also received money for performing
              charitable work, which he had started after Decedent’s
              death.      He estimated his monthly expenses as
              about 20,000 rupees, which is about $500.00, at the time
              of Decedent’s death. Mr. Singh also testified that the rate
              of exchange was approximately 50 to 52 rupees to $1.00.
                     Mr. Singh testified that Decedent traveled to the
              United States on May 20, 2008[,] and began working for
              [Employer] as a trainee on May 22, 2008. He stated that
              Decedent asked for 150,000 rupees to go to the United
              States, and that [he] sold a car which was being used as a
              taxi for hire to provide the funds. During the first year[,]
              Decedent sent home about 50,000 [rupees] per month

       8
        While we recognize that Pennsylvania Superior Court cases are not binding on this Court,
such cases “offer persuasive precedent where they address analogous issues.” Lerch v.
Unemployment Comp. Bd. of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018).

                                              11
            regularly. Mr. Singh stated that 50,000 rupees was
            approximately $1,000.00.
                   Mr. Singh testified that Decedent had a J1 visa for
            [1] year, beginning May 22, 2008, and returned to India on
            June 10, 2009. Decedent stayed in India for [1] month and
            16 or 17 days and returned to the United States on
            July 28, 2009. During the second year[,] Decedent had
            expenses for his studies so he did not send as much money.
            Mr. Singh stated that Claimants used proceeds from the
            sale of land owned by Decedent and money that Decedent
            sent to support themselves. On cross-examination,
            Mr. Singh      testified     that    he    had     received
            approximately 250,000 rupees from the sale of Decedent’s
            land and gave 150,000 to Decedent. He stated that the
            proceeds were not used for anything in particular, just to
            support their life, and that his older son gave him money
            for emergencies. He elaborated that the older son did not
            give him money regularly and that he had to ask.
                   Mr. Singh further testified that his older son was
            living with him at the time of Decedent’s death and was
            earning very little money, so part of the household
            expenses at that time were attributable to the older son.
            The mortgage was paid off during the first year Decedent
            worked in the United States and there was no mortgage on
            the house at the time of Mr. Singh’s deposition. He agreed
            that his bank statements showed a deposit
            of 44,620.5 rupees on January 12, 2010 and a deposit
            of 22,453 rupees on March 8, 2010, sent by Decedent. He
            had not received any further money from Decedent.
(Board’s Decision, Feb. 28, 2019, at 8-10 (record citations omitted).) Based on such
testimony, the Board found that Claimants were partially dependent on Decedent at
the time of his death. The Board reasoned:
            We agree that Mr. Singh’s testimony is vague. Claimants
            were apparently not without resources at the time of
            Decedent’s death; Mr. Singh testified that assets were sold
            to finance Decedent’s education and that Claimants owned
            a residence unencumbered by a mortgage. While his
            testimony as to income was reasonably specific, Mr. Singh
            provided no information as to the cost of living in
            Faridabad and no information to substantiate his
                                        12
               representation that Claimants’ general household
               expenses were 20,000 rupees per month. Further,
               Mr. Singh’s testimony as to the rate of exchange was
               inconsistent. Taken as a whole, however, Mr. Singh’s
               credited testimony supports a finding that Claimants’
               regular monthly income did not meet their regular monthly
               expenses.
(Id. at 10-11.) Although not specifically stated, it can be inferred by the Board’s
discussion that the Board considered whether Claimants’ dependency existed at the
time of Decedent’s death. For these reasons, we cannot conclude that the Board
failed to consider whether Claimants were dependent on Decedent for support “at
the time of the injury” or that the Board’s finding that Claimants were partially
dependent on Decedent for support at the time of his death is not supported by
substantial evidence.
                           C. Calculation of Decedent’s AWW
       Claimants argue that the Board erred by calculating Decedent’s AWW
without consideration of the mandate set forth in Section 307 of the Act that a
deceased employee’s wages should not be less than 50% of the statewide AWW.9
Section 307 identifies those family members who are entitled to receive
compensation upon an employee’s death and how to compute the corresponding
compensation rate. Before the compensation rate can be computed, however,

       9
           Employer has not presented any substantive response in opposition to Claimants’
argument that the Board erred by calculating Decedent’s AWW without consideration of the
mandate set forth in Section 307 of the Act that a deceased employee’s wages should not be less
than 50% of the statewide AWW. Rather, Employer argues that Claimants waived this issue by
failing to raise it in their petition for review. Pennsylvania Rule of Appellate Procedure 1513(d)(5)
provides that a petition for review in our appellate jurisdiction must contain: “a general statement
of the objections to the order or other determination, but the omission of an issue from the
statement shall not be the basis for a finding of waiver if the [C]ourt is able to address the issue
based on the certified record.” We see no reason why we cannot address Claimants’ argument
based on the contents of the certified record, and, therefore, we cannot conclude that Claimants
waived the issue on appeal.

                                                13
Section 307 of the Act mandates that “in no case shall the wages of the deceased be
taken to be less than [50%] of the [s]tatewide [AWW].” Because Decedent’s wages
were fixed by the month, the Board calculated Decedent’s AWW pursuant to
Section 309(b) of the Act—i.e., ($1,500 x 12)/52 or $346.15. Claimants do not
dispute this calculation but, rather, appear to contend that the Board’s starting point
for determining Claimants’ corresponding compensation rate was erroneous because
Decedent’s AWW was less than 50% of the statewide AWW. We agree. The
statewide AWW for 2010 was $845.00. 40 Pa. B. 479 (Jan. 16, 2010). In 2010,
50% of the statewide AWW was $422.50. Given that Decedent’s AWW calculated
pursuant to Section 309(b) of the Act is less than 50% of the statewide AWW
for 2010, Decedent’s wages, for the purposes of calculating Claimants’
corresponding compensation rate pursuant to Section 307 of the Act, should have
been $422.50, not $346.15. For these reasons, we must conclude that the Board
erred by calculating Decedent’s AWW without consideration of the mandate set
forth in Section 307 of the Act that a deceased employee’s wages should not be less
than 50% of the statewide AWW.
      Due to the Board’s error, we must remand the matter to the Board with
instructions to remand the matter to the WCJ for a determination of Claimants’
corresponding compensation rate based on weekly wages in the amount of $422.50.
On remand, the WCJ should take into consideration the following statutory
provisions: (1) Section 307(5) of the Act provides that parents of a deceased
employee who are partially dependent on the deceased employee for support at the
time of injury are entitled to receive 32% of the deceased employee’s wages; and
(2) Section 310 of the Act provides that parents of a deceased employee who are not




                                          14
residents of the United States are only entitled to receive 50% of the compensation
that would have been payable if they were residents of the United States.
                    D. Third-Party Recovery and DPW Lien
      Claimants argue that the Board erred by failing to affirm the WCJ’s directive
that Employer reimburse DPW for its lien in the amount of $71,330.84. More
specifically, Claimants contend that, irrespective of the third-party settlement and
any compromise made by DPW in connection with such settlement, DPW should be
entitled to the full amount of its lien if there is an avenue of recovery—i.e., this
workers’ compensation matter. Employer, on the other hand, contends that this
matter should be remanded to the WCJ for consideration of Claimants’ third-party
recovery and its effect on the reimbursement of the DPW lien. More specifically,
Employer contends that the WCJ did not address Claimants’ third-party recovery in
her decision because the settlement of the third-party claim went undisclosed, and,
therefore, the matter should be remanded to the WCJ for consideration of
Employer’s potential subrogation interest and the potential effect of the third-party
settlement on DPW’s lien.
      The Board concluded that the evidentiary record is devoid of information
upon which it could resolve the issues of whether the WCJ erred by failing to account
for Employer’s subrogation interest against a third-party recovery made by
Decedent’s parents or by ordering payment of the DPW lien. The Board explained
that there was no documentation relative to a third-party settlement that had been
submitted into the record or any discussion about a third-party settlement on the
record at any hearing, and, therefore, it did not have sufficient information to resolve
these issues. We agree with the Board that, given the lack of information in the
record regarding the third-party settlement, the issues relative to the third-party


                                          15
settlement cannot be addressed on appeal. In light of the fact that Employer was not
aware of the third-party settlement at the time of the proceedings before the WCJ, a
fact that Claimants do not appear to dispute, we must remand the matter to the Board
with instructions to remand the matter to the WCJ to address Claimants’ third-party
settlement and its effect on these proceedings.
                                 IV. CONCLUSION
      Accordingly, we affirm, in part, and reverse, in part, the Board’s order and
remand the matter to the Board with instructions to remand the matter to the WCJ
to: (1) determine Claimants’ corresponding compensation rate based on an average
weekly wage of $422.50; and (2) issue findings of fact and conclusions of law
relative to Claimants’ third-party settlement and to thereafter determine: (a) what
effect, if any, the third-party settlement has on the payment of DPW’s lien by
Employer as part of these proceedings; and (b) whether Employer has a subrogation
interest in this matter as a result of the third-party settlement.




                                            P. KEVIN BROBSON, Judge




                                           16
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Karan and Pushpa Singh, and          :
Mandeep Rana, deceased,              :
                        Petitioners  :
                                     :
            v.                       :        No. 240 C.D. 2019
                                     :
Workers’ Compensation Appeal Board :
(Asha Corporation),                  :
                         Respondent :
                                     :
Asha Corporation,                    :
                         Petitioner  :
                                     :
            v.                       :        No. 347 C.D. 2019
                                     :
Workers’ Compensation Appeal Board :
(Singh, Singh, and Rana, deceased),  :
                         Respondents :



                                    ORDER


      AND NOW, this 1st day of May, 2020, the order of the Workers’
Compensation Appeal Board (Board) is hereby AFFIRMED, in part, and
REVERSED, in part, and the matter is REMANDED to the Board for further
proceedings consistent with this opinion.
      Jurisdiction relinquished.




                                            P. KEVIN BROBSON, Judge
