# Department of Labor & Industry Bureau of Workers' Compensation v. Workers' Compensation Appeal Board > Commonwealth Court of Pennsylvania · February 2, 2009 · 965 A.2d 332 URL: https://www.frixlaw.com/law-library/cases/9760652 ## Case - **Full name:** DEPARTMENT OF LABOR & INDUSTRY BUREAU OF WORKERS’ COMPENSATION, Petitioner v. WORKERS’ COMPENSATION APPEAL BOARD (CRAWFORD & COMPANY), Respondent - **Court:** Commonwealth Court of Pennsylvania - **Decided:** February 2, 2009 - **Citations:** 965 A.2d 332; 2009 Pa. Commw. LEXIS 23; 2008 WL 5567535 - **Precedential status:** Published - **Opinion:** Dissent by Pellegrini - **Judges:** Leadbetter, Pellegrini, Friedman, Jubelirer, Simpson, Leavitt, Butler - **Cited by:** 2 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/9760652 ## Opinion text DISSENTING OPINION BY Judge PELLEGRINI. Because reimbursement from the super-sedeas fund (Fund) is only allowed for payments of compensation that were made because the supersedeas request was denied, and payments here would have had to have been made even if the supersedeas had been granted, I respectfully dissent. The facts of this case are not in dispute. Kevin Resller (Claimant) was injured at work on July 21, 1995, and a notice of compensation payable was issued by Employer through its insurance carrier, Crawford & Company. Claimant received treatment for his injury on June 1, 2004, and Employer filed a termination petition on July 19, 2004, alleging that Claimant had fully recovered from his injury on March 16, 2004. Employer also filed a request for supersedeas that same date. The WCJ denied the supersedeas request on August 30, 2004, but the termination petition was ultimately granted on June 28, 2005. Claimant appealed to the Board which affirmed. No further appeal was taken. On August 14, 2006, Employer, through its insurance carrier, filed an application for supersedeas fund reimbursement requesting recoupment of indemnity benefits paid to Claimant of $2,074.42 and medical reimbursement of $40,909.60 from the date supersedeas was requested on July 19, 2004, through the date the termination petition was granted on June 28, 2005. The Fund agreed to pay for everything except a medical bill of $34,405.45 for services rendered to Claimant on June 1, 2004, which was presented to Employer on October 11, 2004, and paid by Employer on January 24, 2005. The Fund refused to pay that amount because Claimant incurred it prior to the date supersedeas was requested, and services had to be performed after a request for supersedes in order for the bill to be reimbursed. The WCJ ordered reimbursement, the Board affirmed, and this appeal followed. Affirming the Board, the majority finds that “it does not matter that the date of service of the medical expenses in question preceded the request for supersedeas— what matters is that the treatment in question was later determined to be ineli *340 gible for payment, and the bill for that treatment was submitted, to and paid for by Insurer after supersedeas was requested and denied.” (Opin. at 339.) I disagree because that analysis ignores that the Workers’ Compensation Act (Act) 1 requires that the payment was made due to the denial of the supersedeas, not just that the payment was made after the superse-deas was denied. In 1972, Section 443(b) of the Act, 2 77 P.S. § 999(b), was added to the Act establishing the Fund. It provided, in relevant part: There is hereby established a special fund in the State Treasury, separate and apart from all other public moneys or funds of this Commonwealth, to be known as the Workmen’s Compensation Supersedeas Fund. The purpose of this fund shall be to provide moneys for payments pursuant to subsection (a), to include reimbursement to the Commonwealth for any such payments made from general revenues. The department shall be charged with the maintenance and conservation of this fund. The fund shall be maintained by annual assessments on insurers and self-insurers under this act, including the State Workmen’s Insurance Fund. Under this provision, the Department of Labor & Industry, Bureau of Workers’ Compensation was charged with being the conservator of the Fund and assessor of employers to reimburse a specific employer when a supersedeas was denied, but later the employer was ultimately successful on the underlying claim. The reason behind the General Assembly’s establishment of the Fund has been explained as follows: The Supersedeas Fund was created in 1972 at the same time the legislature abolished the traditional practice of employers unilaterally stopping the payment of compensation with the simple legal device of filing a termination or suspension petition. While a “unilateral supersedeas” remained in certain specific contests, for the first time an employer in most contests was required to continue payments of compensation until relieved by referee order from doing so. The Fund was established as something of a quid pro quo for employers to compensate for the deprivation of this “automatic supersedeas” through petition filing. (Emphasis added.) 7 D. Torrey & A. Greenberg, Workers’ Compensation Law and Practice § 11.1 (2008). To obtain reimbursement from the Fund, an employer must meet the requirements set forth in Section 443(a) of the Act, 77 P.S. § 999(a), which provides: 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 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 therefore. (Emphasis added.) The question in this case is what is meant by payments of compensation that are made as a result of denial of the request for supersedeas. Whether a payment is made due to denial of the supersedeas is determined by whether an employer would have been obligated to pay the medical expenses if the supersedeas request had been granted. *341 The grant of a supersedeas only relieves an employer of making payments from the day it was granted; it does not authorize the recoupment of any payments made before that date. In this case, if Employer’s request had been granted (or even if an automatic supersedeas was still available), Employer would still have been obligated to pay medical expenses incurred three months before it filed its request. Because Employer would have been obligated to pay those medical bills if the supersedeas had been granted, the payments made could not have been made as the result of the denial of its request for supersedeas, a requirement under Section 443(a) of the Act to receive reimbursement from the Fund. This outcome is in accord with our holding in Robb, Leonard and Mulvihill v. Workers’ Compensation Appeal Board (Hooper), 746 A.2d 1175 (Pa.Cmwlth.2000), where we held that “it is settled law that reimbursement under Section 443 is appropriate only for the period following the date on which the request for a Supersede-as was filed,” Hooper, 746 A.2d at 1180 , albeit in the context of indemnity benefits. However, because “compensation” as used in Section 443 includes both medical and indemnity benefits, Insurance Company of North America v. Workmen’s Compensation Appeal Board (Kline and Packard Press), 137 Pa.Cmwlth. 393 , 586 A.2d 500 (1991), it would be inconsistent to treat medical bills differently than indemnity benefits and allow reimbursement from the Fund. Moreover, it eliminates the vagary that occurs under the employei'’s view that if medical services are provided on the same date to two claimants, and one provider submits the bill before the supersedeas is filed and the other after, one would be paid and the other would not. Just as we have a bright line for indemnity benefits, only medical benefits that are incurred after the supersedeas request is filed are reimbursable from the Fund. Accordingly, for the above reasons, I would reverse the Board. Judge FRIEDMAN joins in this dissenting opinion. . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2708. . Added by the Act of February 8, 1972, P.L. 25. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9760652. Public record. Not legal advice.