*1 393 A-96994, is affirmed A-95908, A-96040, A-96962 Nos. Insur- Commercial Union cases which involve four as to the Company. Casualty and Aetna Life and Company ance respon- America is struck as of North Company Insurance case. from this dent
DOYLE, Judge. ADIA concurring opinion in my stated the reasons
For Compensation Appeal v. Agency Workmen’s Personnel (Coleman), 137 Pa.Commonwealth A.2d 586 I dissent. (1991), J., dissenting opinion. in this Pellegrini, joins A.2d 500 Petitioner, AMERICA, COMPANY OF NORTH INSURANCE (KLINE APPEAL BOARD COMPENSATION WORKMEN’S PRESS), Respondents. AND PACKARD Pennsylvania. Court of Commonwealth March on Briefs 1990. Submitted 28, 1991. Decided Jan. for Allowance of Granted June
Petition *2 him, David A. with Pennington, Sharolyn Murphy Henderson, Swartz, Detweiler, and Campbell Philadelphia, for petitioner. Kelley, Counsel,
Richard T. Chief Deputy Harrisburg, for respondents. DOYLE, JJ.,
Before and BARRY, CRAIG and Senior Judge.
OPINION BARRY, Senior Judge.
The (the insurer) Insurance of North America Company appeals order of (Board) which, vote, an equally divided affirmed a
decision of a referee denying the insurer’s request for made of medical overpayments reimbursement case). (the in this claimant Kline of Gail behalf and loss benefits paying both insurer was a notice of pursuant the claimant her at had back injured after she compensation payable and examining the claimant after later Sometime work. recovered, employer she had believing that modification, alleg- or suspension for petition filed a insurer to work. to return claimant was able that the ing therein that petition, In connection with of all the cessation to allow supersedeas requested insurer on were held Hearings denied. request That benefits. Both sides modify.1 suspend insurer’s chose to believe and the referee medical evidence presented no claimant was testified that the experts who the insurer’s The ref- injuries. related suffering work longer 12, 1982, medical April “on or after eree concluded *3 to treat the work the claimant care to hospital provided and reasonable.” nor necessary was neither injury related 10/22/86). decision, 2, Referee’s (Conclusion of law No. for reimbursement request insurer then filed a The in $21,656.93 Fund2, repaid to seeking the Supersedeas $23,286.72 expenses paid in medical loss benefits wage 12, permitted recovery The referee 1982. April after those involved benefits; for reasons other than loss ex- of medical here, denied reimbursement the referee Board, from the sought review The insurer then penses. divided, Being equally the issue. three-three on split which The insurer has now affirmed. the order of the referee was to us. appealed Does issue, facts, complicated. is not like the Act include medical in
“compensation” provides: That section expenses? supersedeas request period During between the denial of the suspend modify, decision on the insurer’s referee’s paid. for which the insurer medical treatments the claimant received Penn- in Section 443 of The Fund was established
2. The 2, 1915, (the Act), Act of June sylvania Act 8, 1972, 25, amended, February P.L. added the Act of P.L. 77 P.S. (Supp.1990-91). § (a) If, in any case which a supersedeas has been requested and denied under the provisions of section 413 430, payments or section of compensation are made as a upon result thereof and final outcome of the proceedings, it is determined that such compensation not, fact, was payable, the insurer has who made such payments shall be reimbursed therefor. 999. The insurer argues that compensation in-
cludes both medical and wage loss benefits while the Department of and Industry, Labor representing the Fund, espouses the that compensation view does not include medical expenses.
We note
that this
initially
precise question is one of first
impression.
blush,
At first
existing
case law in related
areas
capable
seems
of supporting either result. Shortly
war,
after
the first world
the Supreme Court held that
compensation did not include medical expenses. Paolis v.
Co.,
Tower Hill
Connellsville Coke
265 Pa.
The Superior Court later held that Paolis was not disposi-
tive and held that the meaning of the term compensation vis
a vis medical expenses depended on the section of the Act
where that term
being
was
used.
Haley
Use Martin
Matthews,
104 Pa.Superior
(1932).
person is responsible for an injury to the employee the
employer, who has
subrogated
been
to the employee’s
right,
substituted,
is
of,
all,
not to a portion
but to
his
rights, until he is reimbursed for whatever sums he was
required to pay the
under
employee
the Compensation
Act. There appears to be no sound reason why an
hospital
medical and
obliged
pay
be
should
the
way responsible
he is in no
when
expenses,
for
escape
liability
the
wrongdoer
the
and
injury,
therefor.
the
expense
thus
at the
profit
would
The wrongdoer
of
law,
wrongdoer would
In an
at
employer.
action
hospital expenses;
for medical and
be liable
undoubtedly
dealing
are
damages.
elements of
We
are
they
proper
that,
principle
rests on the
an
doctrine.
It
equitable
with
through another’s
compelled
pay money
is
if one
recovery may
a
be had.
neglect,
316-17,
(empha
We has Subrogation always our and been Haley. case tween statute, fund, a creature principle; an equitable Furthermore, underpinnings. claim cannot such historical case, to the wrongdoer equivalent in is no present there tortfeasor; has is claimant who received party third there entitled. We nonetheless something to which she was not in that a Haley important that it shows believe in questions must taken these approach common sense interpretation. statutory recognize Legisla glaring one instance which
We has differentiated ture between 306(f) Act,3 loss benefits. question expenses. with the of medical specifically
deals
times
section has
amended a number of
since
This
been
in detail
original
recently
discussed
Act’s
enactment.
of this section. See Fuhrman
history
(Clemens
Supermarket),
(1986).
For
Pa.Commonwealth Ct.
act shall shall not or review the com have rights purposes for of such limitations.” 77 P.S. pensation 531(5) As in (Supp.1990-91). Judge Doyle explained Fuhrman, the amendments to this section made have been to recover for medical from a permit expenses to a claimant no matter when those are injury expenses work related incurred, presently the burden on the with incurred prove expenses that medical are either unneces Id. sary unreasonable. any particular Legisla fail to see relevance the 306(f) present
ture’s amendment in to the controver sy. codify recogni The distinction there is intended to injured worker is entitled to payment tion that an for expenses injury, medical from a work related even where injury longer “disabling” meaning that is no within the case, In present rights the Act. there are no simply involved; are injured present worker which case only question right involves of an insurer’s to reim Supersedeas bursement from the Fund of related non-work expenses required medical for it after pay which was its request for a had denied. supersedeas per been We can no for that holding ceive valid reason an insurer can recover work loss benefits cannot recover medical but when it is decided should ultimately that neither have been This paid. by conclusion buttressed the fact that Supersedeas Fund consists made solely payments insurers and self-insurers within Commonwealth. Fur thermore, the assessments by which insurers and self provide Fund, insurers for the money Supersedeas Subsequent Fund and the Administration Fund are Injury based, fact, In part, upon expenses.4 dicta from this Court state that the insurer is entitled to reimburse ment of loss medical expenses. both benefits and Glinka v. (Sears Co.), Roebuck & Pa. Commonwealth Ct. 521 A.2d (1987). 4. See Form LIBC attached as an exhibit hereto. those commis upon by relied reason primary that medical the Board who believed
sioners
from the
Fund was
not recoverable
were
*6
interpreted
has
Bureau of Workmen’s
interpretations
have stated that
a manner. We
Act
such
its
agency charged with
of an administrative
of a statute
great weight. Boeing
entitled to
Vertol
are
administration
(Coles),
Compensation Appeal
Co. v. Workmen’s
(1987).
388,
In the employer filed to Section 413 compensation payable pursuant notice of fy a sought supersedeas same time of the Act and at the request supersedeas 443. The for a to Section pursuant and its insurer continued denied and the was ultimately it decided that though make even was payments, those payments. the claimant not entitled to was sought payments insurer then reimbursement of those view, In it entitled to be Fund. our and the medical reimbursed for loss benefits both order had the effect of expenses. Because the Board’s expenses, we must re- denying reimbursement verse that order.
Reversed.
DOYLE, J., dissenting opinion. filed a
ORDER NOW, 28, 1991, the order of the Workmen’s January Board, 14, 1989, September dated at Compensation Appeal No. A-95917 is reversed.
DOYLE, dissenting. Judge, Penn 306(f)(2)(ii) of The dissent. Section
I respectfully (Act) Act Act of June sylvania amended, 531(2)(ii), as provides: 1915 P.L. depart- right petition have the employer shall frequency or of treat- necessity for of the ment review a provided by of fees for services ment or reasonableness of the heal- duly practitioner other licensed or physician no event act as a shall petition Such arts. ing peti- such supersedeas, during pendency if the physi- all medical bills pay tion the shall report files a healing of the arts practitioner cian or other (I) paragraph required by subparagraph reports added.) (2) (Emphasis of this subsection. could not more clear that language be
Certainly an automatic itself does not create filing petition of the however, must, decide whether it autho- supersedeas. We 443 of the because Section discretionary supersedeas rizes a Act, 999,1 from which deals with reimbursement P.S. § (Fund), Fund limits such reimbursement superse- “a compensation” to cases where “payments for provisions and denied under the requested deas has been supersedeas 430 of the Act.” If a Section 413 or Section fund. granted, recovery cannot there can no be 771-774.2,2 to re- pertains 77 P.S. §§ fraud; setting agreement view/modification or aside an for amendment of change disability; modification due to a modify the effect of a to terminate or petitions; *8 agreement; employer’s improper suspen- the effect of an benefits; sion, compensation decrease or termination of right suspend the of an to where employer compensation previous has returned to work at or increased employee earnings petition modify and a to terminate or has been filed. 8, 1972, February by Act Section 443 was added Section 3 of the of (Act 12). P.L. 25 by respective-
2. Sections 774.1 and 774.2 were added Sections 3 and 2 ly of Act 12. 402 Act, 971, to the pertains 430 of the
Section
on a lien of
appeal
judgment.
of an
effect
430, therefore,
nor
re
413
Section
even
Neither Section
challenging
the reasonableness
petition
concerns
motely
Accord Bureau
Com
Workers’
expenses.
of medical
Board
Compensation Appeal
v.
pensation
Workmen’s
421,
(Lukens
Co.),
105
524 A.2d
Steel
Pa.Commonwealth Ct.
(1987) (holding
application
of Section 443 is
under Section 413 and 430 of
procedures
limited to
strictly
and,
Act,
of the
inapplicable
hence is
to Section 314
the Act
651,
employer’s right
to an
of reim
pertaining
77 P.S. §
after a claimant refuses to
with a Board
comply
bursement
examination).
physical
order for a
Co.,
314,
Lukens Steel
dealing
as in
with Section
Just
306(f)(2)(ii)
provides
remedy by
of the Act
its own
Section
allowing
employer
petition
Department
Labor
for review of the reasonableness of medical
Industry
to the
under
procedure
without resort
established
306(f)
413 or 430.
in Section
is reim
Sections
Nowhere
Supersedeas
anywhere
from the
Fund or
else
bursement
for,
provided
specifically
“during
pendency
because
if
such
shall
all medical bills
pay
arts files a
physician
practitioner
healing
or other
I____”
report
subparagraph
required by
306(f)(2)(ii). And,
such medical
is a
pay
failure
v.
Compen
Glinka Workmen’s
clear
of the Act.
violation
(Sears,
Co.), Appeal
sation
Board
Roebuck &
Pa.Com
denied,
175,
503,
appeal
521 A.2d
516 Pa.
monwealth
Compen
Johnson v. Workmen’s
(1987);
403 that term in Fuhrman “compensation” that held further (establish Act, 1001, 434 in of the used Section is aside a setting limitations for statute of three-year ing under expenses to medical not applicable was receipt) final is that Moreover, of critical 306(f). importance, and Section of Chabo the rejected rationale in Fuhrman specifically we Store, 26 Pa.Commonwealth Department Klein v. S. tar held (1976), 572, previously A.2d where we had 364 970 Ct. of under Section two-year statute limitations the then that 306(f). In the rejecting 413 incorporated into Section in limitations statute of present three-year that the notion 306(f) expenses, medical applicable is to Section 413 Section stated: we in the of Chabotar would result logic the
Applying 434 into 413 and Section of both Section incorporation 306(f). interpreta- this perpetuate decline Section changes by tion, widespread we that because believe in and 1978 altered to the Act 1972 amendments 306(f). of meaning Section A.2d at
Fuhrman, 100 Pa.Commonwealth 515 at 306(f)(5), further wrote: And, in we discussing Section medical presuppose payment section ... must this limitations, of a after the statute expiration expenses’ separates concept thus ‘medical and ’ concept ‘compensation. from Id., 100 A.2d at 334 Ct. at 515 Pa.Commonwealth deleted; added). (emphasis emphasis now do its determi majority’s holding would What expenses,” includes “compensation” “medical nation “under only accomplished under Section 443 can which 430,” reapply is to of Section 413 or Section provisions 306(f); absolutely something 413 to Section we Section case, “compensa Fuhrman. In the instant eschewed that, that, which only referred to is tion” and, as above under incorporated Sections outlined, pertain expenses. not those Sections do one is driven to conclude that reimbursement Accordingly, unrea- determined to be judicially for medical later or unnecessary recouped cannot be Super- sonable And, Fund. because of conclusion, sedeas this it follows *10 that a logically discretionary supersedeas for such be under the I cannot obtained Act. note that majority in ADIA Agency Personnel Board, 586 A.2d Pa.Commonwealth (1991), has come to same conclusion that “no section the Act a discretionary within authorizes supersedeas as to 508). payment expenses” medical (p. sought
The “valid reason” (p. 502) here as majority insurer cannot why recover medical from the Supersedeas Fund work when loss benefits can be recov- ered, stated, succinctly is that the Legislature did simply provide not it is prerogative so not our to dictate and government otherwise. Economic policy such should remain Legislature.3 with the of my issue,
Because first disposition it neces- me to sary for reach For question. constitutional stated in my concurring opinion ADIA, do not reasons I believe constitutional violation exists. respondent,
3. The of the Pennsylvania, brief Commonwealth of De- partment Industry, Labor and as conservator of the Fund, policy arguments against allowing contains two unreasonable Fund; first, recouped costs to from the it would increase operating Pennsylvania cost a business in employers, for all second, employers, knowing that would Fund be available to costs, recoup vigilant unreasonable medical would be far less contesting medical treatment and costs believed be either unneces- sary or exorbitant.