OPINION BY JUDGE BROBSON
Petitioners Erie Insurance Company and Powell Mechanical, Inc. (collectively, Employer) petition for review of an order of the Workers Compensation Appeal Board (Board), dated December 6, 2017. The Board reversed an order of Workers Compensation Judge Eric Jones (WCJ Jones), which granted Employers Application for Supersedeas Fund Reimbursement (Application). We now affirm.
Robert Braithwaite (Claimant) worked for Employer as a Steam Fitter. (Reproduced Record (R.R.) at 20a.) On April 11, 2003, Claimant was injured in a vehicular accident while allegedly on his way home from delivering equipment for Employer. (Id. at 22a.) Employer accepted liability for Claimants work-related injury by issuing a notice of temporary compensation payable, which was subsequently converted to a notice of compensation payable by operation of law. (Id. ) Employer, however, unilaterally stopped paying for Claimants medical expenses sometime around September of 2003 after Employer became aware that Claimant may have been intoxicated at the time of the vehicular accident. (Id. at 23a.) Specifically, Employer discovered that Claimant, after delivering Employers equipment, went to a bar where he drank a number of beers. (Id. at 22a.) After Claimant left the bar, he became involved in the subject vehicular accident and was charged with driving under the influence. (Id. ) Within the same time frame that Employer ceased paying Claimants medical expenses, Employer also filed review and termination petitions, alleging that Claimant was intoxicated at the time of the accident and, therefore, was not entitled to workers compensation benefits. (Id. at 19a.) Employer included a request for supersedeas in its petitions. (Certified Record (C.R.), Item No. 11.) Claimant then filed a penalty petition, alleging that Employer failed to pay for his medical expenses in violation of the Workers Compensation Act (Act). (R.R. at 19a.)
On March 8, 2004, Workers Compensation Judge Charles P. Lawton (WCJ Lawton) issued an interlocutory order granting Employers request for supersedeas. (C.R., Item No. 12.) Thereafter, on June 30, 2008, WCJ Lawton entered a decision and order granting Employers termination and review petitions and setting aside the notice of compensation payable but also granting Claimants penalty petition. (R.R. at 19a-30a.) As to Employers termination and review petitions, WCJ Lawton found that Claimant was not entitled to workers compensation benefits because his injury was not sustained during the course and scope of his employment. (Id. at 28a.) According to WCJ Lawton, but for Claimants intoxication while operating a motor vehicle, Claimant would not have been involved in the accident or sustained the resulting injuries. (Id. ) As to Claimants penalty petition, WCJ Lawton also found that Employer improperly withheld payments for Claimants medical expenses, because [o]nce the notice of compensation payable was issued, [E]mployer was under an obligation to pay medical bills until a final order of a [WCJ] relieving it of this obligation was issued or until a final receipt was executed. (Id. ) As a result, WCJ Lawton ordered Employer to pay all of Claimants unpaid medical bills from the date Employer issued the notice of compensation payable through the date WCJ Lawton issued his decision. (Id. ) Claimant and Employer appealed WCJ Lawtons decision and order to the Board, which affirmed for the same reasons WCJ Lawton discussed in his decision and order. (C.R., Item No. 15.) Claimant then appealed the Boards decision to this Court. (C.R., Item No. 16.) In a memorandum opinion, we affirmed WCJ Lawtons decision. (Id. )
Subsequently, on March 1, 2012, Employer filed its Application seeking reimbursement from the Fund for an overpayment of wage-loss benefits and medical expenses. (C.R., Item No. 17.) By decision and order dated January 13, 2016, WCJ Jones granted Employers Application. (R.R. at 7a.) In so doing, WCJ Jones reasoned that, even though Employer failed to make wage-loss and medical expense payments while the notice of compensation payable was in effect, to deny Employers Application only compounds the error that it never should have been liable for wage-loss and medical benefits, since the notice of compensation payable was set aside. (Id. at 5a.) The Bureau of Workers Compensation (Bureau) appealed WCJ Joness decision-only with respect to the reimbursement of medical expenses-to the Board, which reversed. (Id. at 11a.) In so doing, the Board reasoned that WCJ Lawton had no authority to grant supersedeas for medical expenses under the Act, and, therefore, his supersedeas order, while silent on the issue, effectively denied supersedeas with respect to the payment of Claimants medical bills. (Id. at 13a.) The Board further reasoned that, as a result of the implied denial of supersedeas, Employer remained liable for the payment of medical expenses. (Id. ) The Board also reasoned that Employers payment of Claimants medical expenses following WCJ Lawtons decision was not due to the denial of supersedeas, but rather, to its failure to pay for Claimants medical expenses during the pendency of this litigation. (Id. ) In other words, Employer paid Claimants medical expenses in this case because it was ordered to do so by WCJ Lawtons order granting Claimants penalty petition, not because WCJ Lawton denied its request for supersedeas. (Id. at 12a-13a.) For these reasons, the Board concluded that WCJ Jones erred in granting Employers Application with respect to the reimbursement of medical benefits. (Id. at 13a.) Employer now petitions this Court for review.
On appeal, Employer essentially argues that the Board erred by reversing WCJ Joness order with respect to the reimbursement of medical expenses, because Employer paid Claimants medical expenses as a result of what Employer characterizes as WCJ Lawtons denial of supersedeas. Specifically, Employer takes the position that, because a WCJ may grant supersedeas only as to wage-loss benefits and not as to medical expenses, WCJ Lawtons interlocutory order granting supersedeas only applied to wage-loss benefits and, therefore, the order impliedly denied Employers supersedeas request as it related to medical expenses. Employer maintains that it paid Claimants medical expenses because of WCJ Lawtons denial of supersedeas (not because of WCJ Lawtons grant of the penalty petition), and Employer focuses on the implied denial of supersedeas for medical expenses as the basis for reimbursement from the Fund under Section 443(a) of the Act. Employer further maintains that it is irrelevant under Section 443(a) of the Act whether it paid the medical expenses prior to or after WCJ Lawtons interlocutory order granting Claimants penalty petition. Employer argues that WCJ Lawtons ruling on Claimants penalty petition did not create a legal obligation for Employer to pay for Claimants medical expenses in light of the implied denial of supersedeas. In response, the Bureau argues that the Board properly reversed WCJ Joness decision and order with respect to the reimbursement of Claimants medical expenses because Employers payment of such medical expenses was prompted by WCJ Lawtons order granting Claimants penalty petition, not by the prior denial of supersedeas. Both parties appear to focus on the reason for the payment of medical expenses; nevertheless, it is Employers cessation of the payment of medical expenses in violation of the Act that is dispositive of the outcome in this matter.
The General Assembly created the Fund for the purpose of reimbursing, under prescribed circumstances, an employer that has been ordered to pay workers compensation benefits that are later determined not to be owed. In so doing, [t]he Legislature recognized that recoupment from the claimant was impractical and would undermine the benevolent purpose of the Act. Bureau of Workers Comp. v. Workmens Comp. Appeal Bd. (Allstate Ins. Co.) , 96 Pa.Cmwlth. 566, 508 A.2d 388, 390 (1986), appeal denied , 514 Pa. 632, 522 A.2d 560 (1987). The Fund injects fairness into a system that requires an employer to pay disputed benefits while they are appealed. Dept of Labor & Indus. v. Workers Comp. Appeal Bd. (US Food Serv.) , 932 A.2d 309, 312 (Pa. Cmwlth. 2007).
With regard to reimbursement, Section 443(a) of the Act provides, in relevant part:
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 payments shall be reimbursed therefor.
(Emphasis added.) An employer cannot, however, unilaterally suspend the payment of benefits after filing a petition seeking termination or modification; absent a supersedeas order, an employer is required to continue paying benefits. Robb, Leonard and Mulvihill v. Workers Comp. Appeal Bd. (Hooper) , 746 A.2d 1175, 1181-83 (Pa. Cmwlth. 2000) ; Winkelmann v. Workmens Comp. Appeal Bd. (Estate of ONeill) , 166 Pa.Cmwlth. 154, 646 A.2d 58, 60 (1994), appeal denied , 540 Pa. 609, 655 A.2d 996 (1995). Rather, an employer may only lawfully stop paying benefits when one of the following conditions is met:
(1) a supplemental agreement is submitted pursuant to Section 408 of the Act, [as amended , added by the Act of June 26, 1919, P.L. 642,] 77 P.S. § 732 ;
(2) a final receipt is submitted, signed by the claimant pursuant to Section 434 of the Act, [as amended , added by the Act of June 26, 1919, P.L. 642,] 77 P.S. § 1001 ;
(3) an interlocutory order is secured from a WCJ granting a discretionary supersedeas pursuant to Section 413(a.1) and 413(a.2) of the Act, 77 P.S. § 774 ;
(4) a petition to suspend compensation is filed with an accompanying affidavit from the insurer that the claimant has returned to work at wages greater than or equal to his pre-injury wage pursuant to Section 413(c) of the Act, [as amended , added by the Act of July 1, 1978, P.L. 692,] 77 P.S. § 774.2 ; or
(5) a final order is secured from a WCJ terminating a claimants benefits.
Hooper , 746 A.2d at 1182. Until one of the above events occurs, an employer carries the burden of paying compensation during the entire litigation period. Id. Accordingly, the granting of a supersedeas request cannot erase the employers obligation to pay benefits for a time during which a supersedeas was not in effect. Id. at 1183. In fact, where an employer unilaterally stops making payments, the subsequent granting of a supersedeas request does not excuse an earlier violation of the Act, and an employer can be penalized for such a violation of the Act. Id.
In Estate of ONeill , the employer refused to pay the workers compensation benefits following its appeal of the WCJs decision, even though the Board denied its request for supersedeas through a deemed denial-i.e. , failure to act within 30 days. The employers unilateral act prompted the claimant to file a penalty petition, which the referee granted. The employer appealed the penalty award to the Board (and filed another request for supersedeas, this time from the payment of the penalty award) and the Board reversed the referees penalty award. On appeal to this Court, we reversed the Board and reinstated the penalty award. In doing so, we held that, although the employer prevailed on the merits, its earlier violations of the Act-i.e. , unilateral withholding of the claimants benefits despite a denial of supersedeas-were not excused. Estate of ONeill , 646 A.2d at 60.
Similarly, in Hooper , the employer unilaterally suspended the payment of the claimants benefits following the claimants refusal to return to work in her pre-injury position after a full release. Approximately six months later, Employer filed a petition to modify or suspend the claimants benefits and requested supersedeas. The WCJ granted the supersedeas request but ordered the employer to pay to the claimant all of the benefits the employer unilaterally withheld from the six months before the employer filed its petition through the date of the WCJs order. The employer, thereafter, filed an application for reimbursement from the Fund, which the WCJ granted for the entire period for which the employer paid benefits, including the period during which the employer unilaterally withheld payment of benefits. The Bureau appealed the WCJs decision to the Board. The Board amended the WCJs order to rescind reimbursement for the payments that the employer unilaterally withheld prior to its request for supersedeas. This Court affirmed the Boards decision, declining to permit reimbursement of funds for the period of time during which the employer unilaterally withheld payment. In doing so, we recognized that holding otherwise would encourage employers to continuously violate the Act by unlawfully withholding payments. Hooper , 746 A.2d at 1183. We, therefore, determined that an employer is not entitled to reimbursement when the withheld benefits were paid retroactively pursuant to a penalty award. Id.
In this case, Employer has not established that it was entitled to reimbursement for the medical expenses it paid in connection with WCJ Lawtons order granting Claimants penalty petition. Similarly to the employers actions in Estate of ONeill and Hooper , Employer unilaterally withheld payment of medical expenses in violation of the Act and may not be reimbursed for those payments. It is irrelevant that Employer subsequently prevailed on the termination petition because earlier violations of the Act may not be excused. See Estate of ONeill , 646 A.2d at 60. Based on the above discussion, we conclude that the Board did not err in reversing WCJ Joness decision, which granted Employers Application with respect to reimbursement for medical expenses.
Accordingly, we affirm the order of the Board.
ORDER
AND NOW, this 21st day of February 2019, the order of the Workers Compensation Appeal Board is hereby AFFIRMED.
Claimant also filed a review petition seeking specific loss benefits as a result of an alleged disfigurement from the accident. Claimants review petition is not relevant to this appeal, and, therefore, we will not address it in further detail.
Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §§ 1 -1041.4, 2501 -2708.
Generally, an employer or insurer may seek reimbursement under Section 443 of the Act, as amended , added by the Act of February 8, 1972, P.L. 25, 77 P.S. § 999, from the Workers Compensation Supersedeas Fund (Fund) for any overpayment of wage-loss compensation and medical expenses ultimately determined to be ineligible for payment. Ins. Co. of N. Am. v. Workmens Comp. Appeal Bd. (Kline & Packard Press) , 137 Pa.Cmwlth. 393, 586 A.2d 500, 501-03 (1991), affd , 533 Pa. 112, 619 A.2d 1356 (1993). Notwithstanding the availability of reimbursement from the Fund, in ADIA Personnel Agency v. Workmens Compensation Appeal Board (Coleman) , 137 Pa.Cmwlth. 405, 586 A.2d 507, appeal denied , 528 Pa. 624, 597 A.2d 1154 (1991), we recognized that permitting a WCJ to grant an employers supersedeas request with respect to medical expenses prior to an adjudication could detrimentally affect a claimants right to receive immediate medical care, and we held that no section within the Act authorizes a discretionary supersedeas as to payment of medical expenses. ADIA Pers. Agency , 586 A.2d at 508. WCJ Lawtons interlocutory order, therefore, could only grant Employers supersedeas request concerning wage-loss benefits.
Braithwaite v. Workers Comp. Appeal Bd. (D. Powell, Inc.), (Pa. Cmwlth., No. 1301 C.D. 2011, 2011 WL 10844969, filed Dec. 9, 2011).
This Courts review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmens Comp. Appeal Bd. (Penn Installation) , 139 Pa.Cmwlth. 15, 589 A.2d 291, 293 (1991).
Employer has divided its argument into three separate, but related, issues. In order to avoid repetition and for the sake of clarity, we have condensed Employers arguments into one argument.
Section 413 of the Act, 77 P.S. §§ 771 -74.3.
Section 430 of the Act, 77 P.S. § 971.
Prior to the 1993 amendments to the Act, WCJs were referred to as referees. See King v. Workmens Comp. Appeal Bd. (K-Mart Corp.) , 664 A.2d 1087, 1088 n.1 (Pa. Cmwlth. 1995), revd , 549 Pa. 75, 700 A.2d 431 (1997).