Volpe Tile & Marble, Inc. v. Workers' Compensation Appeal Board, 170 A.3d 1275

Claimant Josh Redelheim allegedly suffered a work injury in July 2006 while Nationwide was Employer Volpe Tile’s insurer; benefits were paid then suspended after Claimant returned to work.
Claimant filed a reinstatement petition alleging a recurrence or aggravation on December 20, 2007; Employer and Nationwide joinder-claimed Liberty Mutual as the carrier for the December 2007 injury.
WCJ Harris (Oct. 2010) awarded ongoing benefits against Nationwide effective December 20, 2007; Nationwide and Employer appealed and sought supersedeas, which the Board denied in Nov. 2010.
While appeals were pending, Claimant entered into compromise-and-release (C&R) agreements with both Nationwide and Liberty Mutual resolving future benefits (each for $50,000), and WCJ Krass approved both C&Rs in July 2012.
In Dec. 2012 the Board reversed the WCJ’s recurrence finding and determined Claimant sustained a new injury on Dec. 20, 2007 for which Liberty Mutual was the responsible carrier; on remand WCJ Krass dismissed the petitions as moot due to the C&Rs; no appeal followed.
Nationwide then sought reimbursement from the Supersedeas Fund under Section 443(a) for payments it made after its supersedeas was denied; the WCJ and the Board denied reimbursement, concluding the final outcome established that compensation was payable to Claimant (only Nationwide was not liable).

Issue	Plaintiff's Argument (Volpe/Nationwide)	Defendant's Argument (Board/Claimant)	Held
Whether compensation was "not payable" under Section 443(a) so as to permit Fund reimbursement	Benefits Nationwide paid were not payable because (1) the Board ultimately found Liberty Mutual was the liable carrier and (2) Liberty Mutual’s C&R extinguished liability so no payer remained	The Board: final decision determined Claimant was entitled to compensation for the Dec. 20, 2007 injury; only the identity of the liable carrier changed (and that carrier settled). The Fund requires a final determination that compensation was not payable to the claimant, not merely that Nationwide was not the payer	Held: Reimbursement denied. The final outcome established compensation was payable to Claimant (liability shifted to Liberty Mutual), so Section 443(a)’s "not payable" requirement is not met

H.A. Harper Sons, Inc. v. Workers’ Comp. Appeal Bd. (Sweigart), 84 A.3d 363 (Pa. Cmwlth. 2014) (explaining Fund purpose: reimburse employers/insurers ordered to pay benefits later determined not owed)
GMS Mine Repair & Maintenance, Inc. v. Workers’ Compensation Appeal Board (Way), 29 A.3d 1193 (Pa. Cmwlth. 2011) (distinguishing identity of liable employer from payability of compensation; no Fund recovery where only employer identity changed)
Bureau of Workers’ Comp. v. Workmen’s Comp. Appeal Bd. (Allstate Ins. Co.), 508 A.2d 388 (Pa. Cmwlth. 1986) (Fund protects insurer who pays benefits a claimant ultimately is determined not to be entitled to)
State Workers’ Insurance Fund v. Workers’ Compensation Appeal Board (Shaughnessy), 837 A.2d 697 (Pa. Cmwlth. 2003) (no reimbursement where stipulation showed insurer should not have paid but claimant was nonetheless entitled to compensation)
Kidd-Parker v. Workers’ Comp. Appeal Bd. (Phila. Sch. Dist.), 907 A.2d 33 (Pa. Cmwlth. 2006) (the Fund does not assume financial responsibility for injury caused by a third party)