           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Volpe Tile and Marble, Inc.,                  :
                         Petitioner           :
                                              :
              v.                              :    No. 118 C.D. 2017
                                              :    SUBMITTED: July 7, 2017
Workers' Compensation Appeal                  :
Board (Redelheim),                            :
                       Respondent             :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
SENIOR JUDGE LEADBETTER                                    FILED: September 29, 2017

              Employer, Volpe Tile and Marble, Inc., petitions for review of an
order of the Workers’ Compensation Appeal Board (Board) that affirmed the
decision of Workers’ Compensation Judge (WCJ) Ignasiak denying the application
for supersedeas fund reimbursement filed by Nationwide Insurance Company
(Nationwide) pursuant to Section 443(a) of the Workers’ Compensation Act (Act),1
which outlines the circumstances under which recovery may be made from the
Fund:
                     (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

    1
     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(a).
               payments shall be reimbursed therefor.      [Emphasis
               added.]

On appeal, we consider whether it was determined in the final outcome of the
proceedings that compensation was payable such that Employer did not satisfy the
final criterion for reimbursement from the Fund. We affirm.
               In July 2006, Claimant, Josh Redelheim, sustained a work injury
when Nationwide served as Employer’s carrier. He received benefits, but they
subsequently were suspended via a supplemental agreement when he returned to
work for Employer. Thereafter, Claimant filed a reinstatement petition alleging
that he was injured at work in December 2007 and seeking to reinstate benefits for
his July 2006 work injury. Employer and Nationwide filed a joinder petition
against Liberty Mutual Insurance Company (Liberty Mutual), alleging that
Claimant sustained a new injury in December 2007 when Liberty Mutual served as
Employer’s carrier. March 4, 2015, Decision of WCJ Ignasiak, Finding of Fact
(F.F.) No. 1. In October 2010, WCJ Harris granted Claimant’s reinstatement
petition, concluding that he sustained a recurrence of his July 2006 injury and
awarding ongoing disability benefits against Nationwide effective December 20,
2007. Id., F.F. No. 2. Employer and Nationwide appealed to the Board and filed
an application for supersedeas.     In November 2010, the Board denied the
application.
               During the pendency of that appeal, Claimant entered into
compromise and release (C&R) agreements with both Nationwide and Liberty
Mutual. In July 2012, WCJ Krass approved both agreements. Id., F.F. No. 3. In
the Nationwide C&R, the parties resolved any and all claims for future indemnity
benefits, medical benefits, and specific loss benefits starting June 25, 2012, and
extending into the future in exchange for Nationwide’s payment of $50,000.00. In


                                        2
addition, those parties acknowledged: (1) the pending appeal from WCJ Harris’s
October 2010 decision; and (2) their agreement that the Board would enter a
decision on the merits of that appeal thereby determining Claimant’s entitlement to
the payment of indemnity and medical benefits for the time period of July 5, 2006,
to June 24, 2012. July 19, 2012, Decision of WCJ Krass, Nationwide C&R;
Reproduced Record (R.R.) at 83a.
            In the Liberty Mutual C&R, Claimant and Liberty Mutual settled and
ended his entitlement to indemnity, medical, and specific loss benefits for any
injuries that he sustained during his employment with Employer while Liberty
Mutual served as the carrier. In pertinent part, the Liberty Mutual C&R provided:
“The sum of $50,000.00 represents payment of all future indemnity claims for the
work related injuries of December 20, 2007.” July 19, 2012, Decision of WCJ
Krass, Liberty Mutual C&R; R.R. at 67a.
            In December 2012, the Board reversed the WCJ’s decision granting
Claimant’s reinstatement petition against Nationwide and remanded the matter to
the WCJ to determine his average weekly wage and compensation rate for a
December 2007 aggravation or new injury for which Liberty Mutual was
determined to be the responsible carrier.     March 4, 2015, Decision of WCJ
Ignasiak, F.F. No. 4. On remand, WCJ Krass dismissed as moot Claimant’s
reinstatement petition against Employer and Nationwide based on the Nationwide
C&R and the Board’s decision. In addition, she dismissed as moot the joinder
petition against Liberty Mutual, filed by Employer and Nationwide, based on the
Liberty Mutual C&R. In so doing, WCJ Krass concluded:

                   3. Although the [Board] reversed the finding that
            the Claimant sustained a recurrence of the July 5, 2006
            work injury on December 20, 2007 and found that [he]
            sustained a new injury on December 20, 2007 during the

                                        3
            insurance coverage period of Liberty Mutual . . . this
            [WCJ] must dismiss the Remanded Petitions as Liberty
            Mutual . . . and Nationwide . . . entered into [C&R]
            Agreements precluding any further liability for the injury
            of December 20, 2007, which was approved by this
            [WCJ] . . . on July 19, 2012.
July 29, 2013, Decision of WCJ Krass, Conclusion of Law No. 3; R.R. at 94-95a.
No appeal was taken from WCJ Krass’s decision.
            Subsequently, Nationwide filed the application for supersedeas fund
reimbursement at issue, which WCJ Ignasiak denied in March 2015. The Board
affirmed, concluding that all of the statutory criteria for supersedeas fund
reimbursement were not met because “it was determined here that Nationwide
should not have paid compensation to Claimant, not that [he] should never have
received compensation.” Board’s January 6, 2017, Decision at 7. The Board
reasoned that it did not determine in its December 2012 decision that compensation
was not payable to Claimant, but that Liberty Mutual was the responsible insurer.
In other words: “The fact that Claimant and Liberty Mutual entered into a C&R to
settle the payment of benefits by Liberty Mutual does not change the final
determination that Claimant was entitled to compensation for his injury, but that
compensation was not payable by Nationwide.” Id. at 6. Employer’s petition for
review to this Court followed.
            Asserting that there are no potential payers remaining, Employer
argues that it proved that benefits were “not payable” under Section 443(a) of the
Act because: (1) WCJ Krass determined that the Liberty Mutual C&R completely
extinguished liability for that carrier and that the benefits Nationwide paid were
not payable by Liberty Mutual; and (2) the Board concluded that compensation
benefits were not payable by Nationwide. Accordingly, Employer argues that the
benefits that it paid to Claimant as a result of the Board’s November 2010 denial of


                                         4
supersedeas were “not payable” as contemplated in Section 443(a) of the Act and
that, therefore, it is entitled to reimbursement from the Fund. Employer’s position
is without merit.
             In establishing the Fund in the Commonwealth’s Treasury, the
General Assembly legislated reimbursement, under specified circumstances, to an
employer who was ordered to pay workers’ compensation benefits that were
subsequently determined not to be owed. H.A. Harper Sons, Inc. v. Workers’
Comp. Appeal Bd. (Sweigart & BWC Legal Div.), 84 A.3d 363, 366 (Pa. Cmwlth.
2014).   Mindful that recoupment from a claimant would be impractical and
undermine the benevolent purpose of the Act, we observed that “[t]he Fund injects
fairness into a system that requires an employer to pay a disputed award of benefits
after the award is appealed.” Id. Recovery from the Fund is intended to protect
employers or insurers that make compensation payments that are later, by virtue of
administrative or judicial action, determined not to be required.          Bureau of
Workers’ Comp. v. Workmen’s Comp. Appeal Bd. (Allstate Ins. Co.), 508 A.2d
388, 390 (Pa. Cmwlth. 1986). In other words, the Fund provides “a means to
protect an insurer who makes compensation payments to a claimant who ultimately
is determined not to be entitled thereto.” Id.
             In the present case, the adversarial appeal process culminated in a
final determination on the merits that Claimant sustained an aggravation or new
injury in December 2007 and that, accordingly, compensation was payable to him
for that injury. The ultimate identity of the liable carrier and the fact that Claimant
entered into a C&R with that carrier are independent of the final determination
regarding the payability of compensation to Claimant. This analysis is consistent
with the pertinent case law.



                                          5
            In GMS Mine Repair & Maintenance, Inc. v. Workers’ Compensation
Appeal Board (Way), 29 A.3d 1193 (Pa. Cmwlth. 2011), the claimant filed a claim
petition against GMS, which joined additional defendants asserting that they may
have caused the claimant’s occupational diseases. The claim petition was granted
and GMS paid the claimant benefits. Ultimately, another mining company, which
was no longer in business and uninsured during the claimant’s tenure, was
determined to be the liable employer. We held that GMS was not entitled to
reimbursement from the Fund because the Board “did not determine finally that
compensation was not payable to [the claimant]; rather, it determined finally that
GMS was not the liable employer.” Id. at 1196. We rejected GMS’s attempt to
merge the concepts of the payability of compensation with the identity of the liable
employer. In so doing, we observed that the sufficiency of the remedy against the
party responsible for the claimant’s benefits was immaterial in that the Fund “does
not assume financial responsibility for injury caused by a third party.” Id. at 1197
[quoting Kidd-Parker v. Workers’ Comp. Appeal Bd. (Phila. Sch. Dist.), 907 A.2d
33, 41 (Pa. Cmwlth. 2006)].
            In State Workers’ Insurance Fund v. Workers’ Compensation Appeal
Board (Shaughnessy), 837 A.2d 697, 700 (Pa. Cmwlth. 2003), aff’d, 874 A.2d
1158 (Pa. 2005), a widow filed a fatal claim petition and the State Workers’
Insurance Fund (SWIF) defended against it based on the fact that it was not the
employer’s insurer at the time of the decedent’s death. During the course of the
proceedings, SWIF was wrongfully told to pay the claimant benefits despite
evidence that it was not the insurer. After SWIF paid those benefits and sought
reimbursement from the Fund, we held that reimbursement was not appropriate
because “it was determined, by Stipulation, that SWIF should not have paid



                                         6
compensation to Claimant, not that Claimant should never have received any
compensation.” Id. at 702-03.
            What can be garnered from these cases is that, even though the Fund
was developed to protect employers or insurers that make compensation payments
that are later, by virtue of administrative or judicial action, determined not to be
required or owed, reimbursement is warranted only under prescribed
circumstances. Sweigart, 84 A.3d at 366. The present appeal pertained to whether
the applicant for supersedeas fund reimbursement met the criterion that
compensation was not payable to Claimant. Resolution of this issue did not hinge
upon which carrier was responsible for the payment of compensation or whether
the liable carrier had entered into a C&R. We will not bypass the plain language of
Section 443(a) of the Act and rule contrary to the law providing for reimbursement
only if specific criteria are satisfied. In summary, Employer cannot circumvent a
final determination concluding that compensation is payable to Claimant.
            Accordingly, we affirm.



                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge




                                         7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Volpe Tile and Marble, Inc.,             :
                         Petitioner      :
                                         :
            v.                           :   No. 118 C.D. 2017
                                         :
Workers' Compensation Appeal             :
Board (Redelheim),                       :
                       Respondent        :


                                      ORDER


            AND NOW, this 29th day of September, 2017, the order of the
Workers’ Compensation Appeal Board is hereby AFFIRMED.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge
