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

Justice McCAFFERY,

dissenting.

Because I read Section 443(a) of the Workers’ Compensation Act (“Act”) 1 somewhat differently than does the majority, and have a different view than that of the majority regarding the nature of su-persedeas under the Act, I must respectfully dissent. My views are more closely in accord with that of the Commonwealth Court dissenting opinion and the general argument of the Bureau of Workers’ Compensation (“Bureau”) in this case.

As the majority points out, the contentious issue here is what Section 443(a) means when it provides that “payments of compensation are made as a result” of a denial of supersedeas requested by an employer under Sections 413 or 430 of the Act. 77 P.S. § 999(a) (emphasis added). Central to interpreting this phrase is how a grant of supersedeas alters an employer’s responsibilities under the Act. The majority asserts that had the employer’s supersedeas request been granted here, rather than denied, the employer would have been relieved of its obligation to pay the surgery bill. Majority op. at 515-16. Respectfully, I believe that this is incorrect.

We have recognized “the longstanding principle” that, absent a supersedeas, the burden remains on the employer to continue to pay medical and other compensation during a litigation period. 2 Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366 , 888 A.2d 758 , 765 n. 6 (2005) (citing with approval McLaughlin v. Workers’ Compensation Appeal Board (St. Francis Country House), 808 A.2d 285, 288-89 (Pa. Cmwlth.2002)). McLaughlin provided as follows:

Once the employer’s liability for the work injury has been established, the employer may not unilaterally stop making benefit payment in the absence of a final receipt, an agreement, a supersede-as or any other order of the WCJ authorizing such action. Kuemmerle v. Work *517 ers’ Compensation Appeal Board (Acme Markets, Inc.), 742 A.2d 229 (Pa. Cmwlth.1999). Absent such authority, therefore, the employer must continue to make payment while challenging the claimant’s entitlement to benefits. Jones v. Workers’ Compensation Appeal Board (Pennsylvania Power & Light), 735 A.2d 185 (Pa.Cmwlth.1999), appeal denied, 567 Pa. 750 , 788 A.2d 381 (2001); Crucible, Inc. v. Workers’ Compensation Appeal Board (Vinovich), 713 A.2d 749 (Pa.Cmwlth.1998); Loose v. Workmen’s Compensation Appeal Board (John H. Smith Arco Station), 144 Pa.Cmwlth. 332 , 601 A.2d 491 (1991).

Id. at 288-89 (emphasis added).

In the present case, the employer had not yet filed its termination petition and request for supersedeas by the time of the surgery in question. My reading of the above authority leads me to conclude that the employer would have been responsible for paying the surgery bill even had its supersedeas request been granted, because the claimant’s treatment occurred prior to that request. A grant of superse-deas would only have suspended the employer’s obligation to pay benefits accruing after supersedeas had been requested. See Section 413(a.2) of the Act, 77 P.S. § 774(2) (providing that “supersedeas shall serve to suspend the payment of compensation in whole or to such extent as the facts alleged in the petition would, if proved, require.”) (emphasis added). 3

Related to the above, the majority does not explain the anomalous result that springs from its holding, to wit, that the right to recoup payment for the same medical treatment is now dependent upon whether the bill for this treatment is presented to and paid by the employer prior to or after the supersedeas request. Stated another way, the majority’s holding essentially hinges on the arbitrary fact present in this case that the medical provider had taken its time to submit the bill for payment.

I do not discount the important salutary purpose of Section 443(a) to provide a mechanism for an employer to be reimbursed for benefit payments made that are ultimately determined to be unrelated to the work injury. However, Section 443(a) provides only for a specific and limited mechanism under which there may be reimbursement from the Supersedeas Fund, not for a total recapture of benefits paid. In this regard, Section 443(a) evidences another important legislative goal that we must consider, as well.

Distilled to its elements, Section 443(a) requires that: (1) a supersedeas must be requested and denied in a proceeding falling under either Section 413 or 430; (2) “payments of compensation are made as a result thereof’; and (3) by the conclusion of the proceeding, there is a determination that “such compensation was not, in fact, payable.” It is significant that the General Assembly made Fund reimbursement dependent on all of these elements. The General Assembly could have — but chose not to — simply provide for automatic and full reimbursement where it is determined that the employer made payments of compensation that are ultimately determined to be unrelated to the work injury. Had the General Assembly done so, it certainly would have fulfilled the goal of relieving the employer from paying any benefits unrelated to the work injury, a consideration that the majority here apparently considered very important in its analysis. See Majority op. at 515.

*518 However, the General Assembly did not provide for such all-encompassing relief. Rather, the General Assembly hinged the employer’s recoupment of benefits paid upon the employer’s prompt action. Section 413 of the Act provides for an automatic supersedeas process in the event an employer files a petition to terminate, suspend, or modify where the petition is accompanied by a physician’s affidavit asserting the employee’s full recovery, based upon a medical examination made within twenty-one days of the filing of the employer’s petition. Section 418(a.l) of the Act, 77 P.S. § 774(a.l). However, “in any other case,” where there has been no compliance with Section 41S(a.l), including the instant one, a filing of a petition to terminate, suspend, or modify does “not automatically operate as a supersedeas.” Section 413(a.2) of the Act, 77 P.S. § 774(a.2). Rather, such petition serves only as a request for supersedeas, which may or may not be granted, in the WCJ’s discretion, following a hearing. Id. This section specifically provides that “[a] supersedeas shall serve to suspend the payment of compensation in whole or to such extent as the facts alleged in the petition would, if proved, require.” Id. Thus, I read from these provisions (1) an important legislative goal to encourage employers to act promptly, where prompt action rewards employers with greater relief; and (2) that such relief is confined to a “suspension” of the employer’s obligation to pay benefits, not a retroactive recoupment of benefits.

Applying my interpretation of Sections 413(a.2) and 443(a) to the present matter, I believe that the employer is entitled to supersedeas relief only regarding those benefits due and owing as of the date it requested supersedeas, and thereafter. Thus, the employer is not entitled to relief for any benefits due and owing prior to its supersedeas request. As the surgical procedure here occurred prior to the employer’s supersedeas request, the employer could not seek suspension of its obligation to pay under Sections 413(a.2) and 443(a) any more than it could seek suspension of disability benefits due and owing prior to the date supersedeas was requested. The fact that the bill for that procedure was submitted after the date supersedeas was requested is, in my view, a happenstance unrelated to the focus of Sections 413(a.2) and 443(a). Had the billing department of the hospital submitted its bill immediately, and the employer paid the bill as required under the Act, which would have been before the date the employer requested supersedeas, there would be no question that the employer could not seek Superse-deas Fund reimbursement for this expense under Section 443(a).

Finally, I note that the Act reflects a series of legislative solutions and compromises creating a carefully considered overall scheme that may be unintentionally thrown off by judicial interpretations that focus on perceived equities, particularly those not inuring to the claimant. There is a strong current in the majority’s analysis that it would simply be inequitable for the employer to pay for a surgical procedure that was ultimately determined to be unrelated to the underlying work injury. However, absent from the majority’s analysis is a focus on the efficiencies built into the legislative scheme, which require the employer to take timely action in order to fully reap the benefits the Act relevantly provides. Because of that circumstance, and my interpretation of what the General Assembly intended by confining superse-deas relief under Section 413(a.2) to a “suspension” of an employer’s obligation to pay benefits, I respectfully dissent.

Justice TODD joins this dissenting opinion.

. 77 P.S. § 999(a).

. See Section 306(f.l)(l)(i) of the Act, which provides, inter alia, that "[t]he employer shall provide payment in accordance with this section for reasonable surgical and medical services, services rendered by physicians or other health care providers, including an additional opinion when invasive surgery may be necessary, medicines and supplies,' as and when needed." 77 P.S. § 531(1). Section 306(f.l)(6) gives an employer some relief from its general obligation under Section 306(f.l)(l)(i) by providing for a mechanism to challenge the reasonableness or necessity of treatment. 77 P.S. § 531(6).

. This case concerns a Section 413(a.2) super-sedeas proceeding, where a grant of superse-deas serves to “suspend” compensation. Therefore, had supersedeas been granted in this case, that action would necessarily only have had an impact upon compensation that would have been due and owing after the date for which supersedeas was granted.