123 A.3d 365
Pa. Commw. Ct.2015Background
- Lozado sought benefits from the Uninsured Employers Guaranty Fund (Fund) and pursued tort remedies against the uninsured employer; two WCJ decisions denied relief against the Fund and the Employer respectively, culminating in Board affirmance on different grounds.
- The WCJ denied the Fund petition because Lozado did not file Notice within 45 days of learning the employer was uninsured and Lozado waited the 21 days required by a separate statutory provision; the Board later barred the Fund petition under Section 305(d) based on Lozado’s prior civil action against the Employer.
- The Board held Lozado forfeited his Fund claim under 305(d) because he elected a tort remedy by suing the Employer.
- The matter was reversed and remanded to consider Lozado’s Fund claim consistent with the opinion, with the Board to conduct further proceedings.
- The Fund was created in 2006 to pay benefits when employers lack workers’ compensation insurance, and it has rights and duties similar to an insurer; Section 1603(b) requires notice within 45 days of learning an employer is uninsured, with compensation not due until notice is given.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 305(d) bars Lozado’s Fund petition after savings action | Lozado contends 305(d) does not bar the Fund claim given his savings action preserved rights. | The Fund argues exclusivity applies and 305(d) bars pursuing Fund benefits when a tort suit is commenced. | Partially reversed; not barred by 305(d) given facts; remand for further proceedings. |
| Whether 1603 notice is a complete or partial bar to compensation | Lozado argues late Notice should not wholly bar benefits; delay only suspends payments. | Fund argues late notice completely bars compensation until notice is given. | Late notice does not bar all compensation; delays benefits until notice is provided and allows past medical/lost wages if notice is given. |
Key Cases Cited
- Kline v. Arden H. Verner Co., 469 A.2d 158 (Pa. 1983) (exclusivity of the Act; exclusive remedy against employer)
- Lewis v. School Dist. of Philadelphia, 538 A.2d 862 (Pa. 1988) (exclusivity and no-waivable defense for tort actions against employer)
- Liberty by Liberty v. Adventure Shops, Inc., 641 A.2d 615 (Pa. Super. 1994) (substantive election to pursue at-law remedies)
- Lyle, Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Lyle), 91 A.3d 297 (Pa. Cmwlth. 2014) (knowledge standard for when the employer is uninsured; factual question)
- Martincic v. Workmen’s Compensation Appeal Board (Greater Pittsburgh International Airport), 529 A.2d 600 (Pa. Cmwlth. 1987) (notice timing framework under 21/120-day rule analogous to 1603 timing)