J.P. Lamb Const. v. W.C.A.B.

• Decision Date: 11 October 2006
• Citation: 909 A.2d 18
• Parties: J.P. LAMB CONSTRUCTION, INC. and Zurich North America, Petitioners, v. WORKERS' COMPENSATION APPEAL BOARD (BUREAU OF WORKERS' COMPENSATION), Respondent.
• Court: Pennsylvania Commonwealth Court

909 A.2d 18

J.P. LAMB CONSTRUCTION, INC. and Zurich North America, Petitioners, v. WORKERS' COMPENSATION APPEAL BOARD (BUREAU OF WORKERS' COMPENSATION), Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs August 18, 2006.

Decided October 11, 2006.

Gillian T. Shipman, Center Valley, for petitioners.

Janet L. Palese, Asst. Counsel and Thomas J. Kuzma, Deputy Chief Counsel, Harrisburg, for respondent.

BEFORE: McGINLEY, Judge, and SIMPSON, Judge, and LEAVITT, Judge.

OPINION BY Judge McGINLEY.

J.P. Lamb Construction, Inc. (Employer) and its insurance carrier, Zurich North America, petition for review of an order entered by the Workers' Compensation Appeal Board (Board) which affirmed the Workers' Compensation Judge's (WCJ) denial of Employer's application for Supersedeas Fund (Fund) reimbursement.

On August 8, 1992, Kerry Strohl (Claimant) injured his hand during the course and scope of his employment. Claimant filed a claim petition which was litigated before the WCJ. The WCJ granted Claimant's claim petition and ordered Employer to pay compensation benefits to Claimant at the weekly rate of $277.33 for a period of six weeks commencing on August 9, 1992. Compensation benefits were suspended on September 19, 1992. Compensation benefits were terminated effective November 3, 1995.

On August 14, 2000, Claimant filed a petition to reinstate and alleged that his total disability recurred as of January 1, 1998, as a result of a worsening of his work related injury of August 8, 1992. In response, Employer raised the affirmative defense that Claimant's petition to reinstate was time barred by the three year statute of limitations set forth in Section 413 of the Workers' Compensation Act (Act).¹ The proceedings were bifurcated so that the WCJ could initially address the timeliness issue.

Thereafter, the parties filed a stipulation of facts which was approved by the WCJ. The stipulation was the fact that Employer paid Claimant the sum of $2,050.28 on December 8, 1997, and that the payment constituted reimbursement to Claimant for medical expenses related to his work injury. Based on this stipulation, the WCJ entered an interlocutory order on February 26, 2001, and found that Claimant filed the petition to reinstate within three years of the last payment of compensation as defined in Section 413(a) of the Act, 77 P.S. § 772. Employer appealed the interlocutory order to the Board. However, the parties then stipulated that Employer would withdraw the appeal and requested that the Board remand the matter to the WCJ for further proceedings. By order dated October 10, 2001, the Board vacated the WCJ's February 26, 2001, order and remanded the matter to the WCJ for further litigation on the petition to reinstate.

On April 23, 2001, the parties stipulated that Claimant was totally disabled as a result of his work-related injury between January 1, 1998, and January 23, 2001, when Claimant returned to work for another employer at wages equal to or greater than his pre-injury wage. The parties also stipulated that Claimant would be entitled to temporary total disability compensation benefits during the foregoing time period except for the statute of limit at ions defense which Employer raised. The parties agreed that while there was no medical issue as to Claimant's entitlement to benefits, whether Claimant's petition to reinstate was timely filed was a legal issue.

On February 24, 2003, the WCJ issued a decision and concluded that it was undisputed that Employer paid Claimant the sum of $2,050.28 on December 8, 1997, and that the payment constituted reimbursement to claimant for medical expense related to Claimant's work injury. The WCJ further found that Claimant filed the petition to reinstate within three years of Employer's last reimbursement of medical expenses, and based on the April 23, 2001, stipulation, granted the closed period of disability.

Employer appealed and requested a supersedeas. The Board entered the supersedeas request by order dated March 24, 2003, and after oral argument affirmed its original grant of supersedeas by order dated June 12, 2003. Ultimately, the Board affirmed the WCJ's reinstatement and held that the reimbursement of medical expenses tolled the statute of limitations as prescribed in Section 413(a) of the Act.

Employer then filed a petition for review with this Court on April 8, 2004, and filed a supersedeas request with the Board on April 12, 2004. The Board denied the request for supersedeas on May 7, 2004. Employer then filed a supersedeas request with this Court on May 13, 2004, which was denied on June 2, 2004.

As a result of the June 2, 2004, denial of Employer's request for supersedeas, Employer made payments to Claimant and his attorney totaling $51,791.49, which represented past-due compensation and interest for the closed period January 1, 1998, through January 23, 2001.

On August 23, 2004, this Court reversed and ultimately determined that Claimant's petition to reinstate was time barred pursuant to Section 413(a) of the Act because the payment of medical expenses does not constitute "compensation" so as to toll the statute of limitations on a reinstatement or review petition. J.P. Lamb Construction, Inc. v. Workers' Compensation Appeal Board (Strohl), No. 745 C.D.2004, filed August 23, 2004.

On November 29, 2004, Employer filed an Application for Supersedeas Fund Reimbursement. Acting in its capacity as conservator of the Fund, the Bureau of Workers' Compensation (Bureau) filed an answer and asserted that Employer was not entitled to reimbursement.

On November 30, 2005, the WCJ issued a decision and concluded that Employer failed to satisfy the requirements for reimbursement set forth in Section 443(a) of the Act, 77 P.S. § 999(a).² The WCJ reasoned that Employer was not entitled to reimbursement because the WCJ's decision to grant the petition to reinstate which, in turn, prompted Employer's appeal to the Board and the request for supersedeas, was predicated upon the April 23, 2001, stipulation of the parties. The WCJ also found it crucial that Employer failed to present some type of medical evidence to support the disposition of the Claimant's entitlement to benefits, independent of the April 23, 2001, stipulation³:

Here, it is not disputable that the granting of the Petition to Reinstate was predicated on the [April 23, 2001] stipulation by Petitioner [Employer] and Claimant. Petitioner [Employer] has neither argued for nor presented any evidence upon which the WCJ in the underlying proceeding could have predicated the decision granting the petition [for reinstatement] and, therefore, Petitioner [Employer] has not met the fifth requirement for reimbursement. Gallagher Bassett, supra. While Petitioner [Employer] relies upon the holding of Consolidated Freightways, that case did not involve a stipulation by the parties, as does this case, but was based on a decision arising directly out of an adversarial proceeding.

Petitioner also seeks to distinguish this stipulated case from those other stipulated cases in which reimbursement was not allowed on the basis that in those cases the parties stipulated to the employer's entitlement to a termination, suspension or modification, while the instant case Petitioner only stipulated to Claimant being entitled to a disability period. This is a classic example of making a distinction without a difference. In either case, the stipulation results in Claimant being granted benefits. The fact that Petitioner was further hopeful that the petition would be denied on the basis of the statute of limitations, that hope was independent of the [April 23, 2001] stipulation that Claimant was again disabled as a result of the work injury — the very essence of the Petition to Reinstate.

Again, since Petitioner [Employer] has not offered any evidence, e.g. medical depositions, Claimant testimony, medical reports, etc. from the underlying proceeding to reinstate upon which the WCJ could have predicated the decision granting the [reinstatement] petition, Petitioner has failed to fulfill the fifth requirement of Section 443(a) and no reimbursement can be had as a result. Gallagher Bassett, supra.

WCJ Decision, November 30, 2005, at 3. (emphasis added).

The Board affirmed and agreed with the WCJ that because Employer entered into a stipulation before the WCJ and that stipulation was the basis for granting Claimant's petition to reinstate, Employer failed to meet its burden of proving entitlement to a reimbursement from the Fund:

Here, the WCJ found Defendant [Employer] entered into a stipulation acknowledging Claimant's ongoing disability, and that the award by the initial WCJ was `predicated on the stipulation.' The WCJ also found it crucial that no evidence was presented in the matter aside from the [April 23, 2001] Stipulation. Therefore, the WCJ found that Defendant [Employer] failed to afford itself of the protection of Gallagher Bassett. We agree.

Board Opinion, April 17, 2006, at 5 (citations to WCJ opinion omitted) (emphasis added).

On appeal⁴, Employer asserts that the Board misconstrued the implication of the April 23, 2001, stipulation, and committed an error of law when it concluded that the April 23, 2001, stipulation barred Employer from reimbursement from the Fund. This Court agrees that this was not a "stipulated case" and that the principles of this Court's decisions in those cases do not govern this appeal.

Section 443(a) of the Act, 77 P.S. § 999(a), allows reimbursement from the Fund if certain requirements are met. Those requirements are: (1) a supersedeas must have been requested; (2) the request for supersedeas must have been denied; (3) the request must have been made in a proceeding under Section 413⁵ or Section 430⁶ of the Act; (4) payments were continued because of the order denying supersedeas; and (5) in the final outcome of the proceedings, it is determined that such compensation was not,...