Commonwealth Court Does Not Expand Wausau Holding To Eliminate Supersedeas Reimbursement Of Past Due Benefits

In Bureau of Workers' Compensation v. WCAB (Consolidated Freightways, Inc.) the Commonwealth attempted to expand the Commonwealth Court's holding in Wausau Insurance Companies v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania), 826 A.2d 21 (Pa. Cmwlth. 2003) to create a rule that when past due benefits are paid after an unfavorable ruling (and after a post-trial request for supersedeas is denied), the Employer's entitlement to supersedeas reimbursement is limited to benefits due after the date of the supersedeas request.

The Court rejected the Commonwealth's arguments. The request for supersedeas turns on information available to the Employer that payments it may make may be, upon review, not payable. Every dollar paid after the supersedeas request that was not, upon review, payable is subject to supersedeas reimbursement.

The Wausau case seemed to direct a different result because the Commonwealth Court denied reimbursement of sums the Employer could have known would be not, upon review, payable. Like in this case of reinstatement, the Employer in the Wausau case was defending a claim and was not paying when the IME indicated disability ceased. However, unlike in this case, the Employer in the Wausau case did not request supersedeas at the time the IME report came in. When benefits were paid without a supersedeas request on the record, the Employer was without the right of supersedeas reimbursement.

What is important here is the new standard of practice highlighted by the Wausau case which indicates the Employer must request supersedeas whenever evidence of a change of status comes up during litigation, even if the Employer is not paying.