# Mark v. Workers' Compensation Appeal Board

> Commonwealth Court of Pennsylvania · March 10, 2006 · 894 A.2d 229

URL: https://www.frixlaw.com/law-library/cases/9757921

## Case

- **Full name:** Howard W. MARK and Cincinnati Insurance Company, Petitioners v. WORKERS’ COMPENSATION APPEAL BOARD (McCURDY), Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** March 10, 2006
- **Citations:** 894 A.2d 229; 2006 Pa. Commw. LEXIS 126
- **Precedential status:** Published
- **Opinion:** Dissent by McGINLEY
- **Judges:** Colins, President Judge, and McGinley, Judge, Pellegrini, Judge, Friedman, Judge, Leadbetter, Judge, Cohn Jubelirer, Judge, and Simpson, Judge
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9757921

## How later opinions describe it (automated extraction)

- discussing treatment of both sections *515 by Commonwealth Court
- describing Wausau and Cunningham

## Opinion text

DISSENTING OPINION BY
Judge McGINLEY.
I respectfully dissent to the majority’s conclusion that supersedeas fund reim *238 bursement may be had for all payments made after a supersedeas request, including payment of benefits awarded retroactively for earlier periods of disability.
The majority would overrule Wausau Insurance Companies v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania), 826 A.2d 21 (Pa.Cmwlth.2003), appeal denied, 575 Pa. 694 , 835 A.2d 711 (2003), where this Court held that “an order granting a supersedeas request in a worker’s compensation proceeding may not be applied retroactively.” The majority asserts that Wausau “simply does not support a holding that retroactive benefits paid after a supersedeas denial cannot be reimbursed.” Majority Opinion at 236. I disagree.
This Court concluded in Wausau that pursuant to Section 443 of the Workers’ Compensation Act (Act), 77 P.S. § 999 1 , Wausau Insurance was only entitled to supersedeas fund reimbursement for benefit payments made subsequent to the date of the supersedeas request and did not include retroactive benefits for earlier periods of disability, even though it was ultimately determined that the claimant was not entitled to those benefits. Wausau, 826 A.2d at 27 . Furthermore, this Court correctly noted that “the supersedeas fund was created by the General Assembly and it is up to that body, not this Court, to correct any perceived inequities in its operation.” Wausau, 826 A.2d at 27 (Citations omitted).
Unlike the majority, I believe a plain reading of Section 443(a) of the Act, 77 P.S. § 999(a), reflects the General Assembly’s intention that “... in any case in which a supersedeas has been requested and denied under the provisions of [S]ection 413, 77 P.S. § 771-774, or [Sjection 430, 77 P.S. § 971, 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 payments shall be reimbursed therefor.”
I agree with the Board’s contention that it correctly denied retroactive reimbursement for benefits that were paid which predated the supersedeas petition. Such retroactive benefits were not paid as a result of the denial of the supersedeas; those benefits were paid as the result of an award. I must respectfully disagree that Section 443(a) of the Act, 77 P.S. § 999(a), concentrates its focus on “payments made” rather than on “periods of disability” because, as I read the controlling provision, the General Assembly has expressed its intent to preclude fund reimbursement for these retroactive benefits. And because if the General Assembly intended to include reimbursement of these retroactive benefits the General Assembly certainly could have said so.
Accordingly, I would affirm the Board, and award supersedeas fund reimbursement in the amount of $14,106.78 for benefits accrued and paid after Howard W. Mark’s and Cincinnati Insurance’s su-persedeas request. This amount would exclude reimbursement for retroactive benefits which predated the supersedeas request.
President Judge COLINS joins in this dissent.
Judge FRIEDMAN joins in this dissent.
. Act of June 2, 1915, P.L. 736, as amended. Section 443 of the Act was added by the Act of February 8, 1972, P.L. 25.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9757921. Public record. Not legal advice.