Aston Township v. WCAB (McPartland), Andrew McPartland v. WCAB (Aston Township); 2553 C.D. 2009; 2607 C.D. 2009; filed August 19, 2010; by Judge Pellegrini

The pro-rata reimbursement rate being paid to the claimant during a grace period also applies to periods when the claimant receives partial disability benefits due to a return to work at reduced wages.

Following the claimant's work injury, he received a third party recovery, and a Third Party Settlement Agreement was executed. Pursuant to that agreement, the employer was to reimburse the claimant $216.88 per week for a period of 1,353.6 weeks. The total represented the claimant's pro-rata share of fees and expenses. Following the expiration of this grace period, the claimant's weekly workers' compensation benefits would resume, assuming he was still eligible for them. During the grace period, the claimant returned to work at reduced earnings and, therefore, was owed a weekly partial disability rate. During litigation of a modification petition filed based on this return to work, the employer continued to pay the claimant a grace period rate of $216.88 per week. Later, however, the employer reduced its payment to $93.22 per week, representing the partial rate multiplied by the same reimbursement rate as before. The claimant then filed a penalty petition, alleging the employer violated the Act by doing this. The employer also filed another modification petition, seeking to recover the overpayment of third-party expenses made to the claimant from future payments. The workers' compensation judge dismissed the claimant's penalty petition, concluding that the employer was correct in applying the reimbursement rate to the weekly partial disability rate. However, the workers' compensation judge also determined that no provision in the Act allowed the employer to recoup the overpayment from either the claimant or the Supersedeas Fund. Both sides appealed to the Appeal Board, which affirmed. The Commonwealth Court affirmed as well, rejecting the claimant's argument that once he returned to work at reduced wages, the employer was required to begin paying the full partial disability rate and that the reimbursement rate no longer applied. The court also concluded that because the employer continued to pay the claimant the original, larger reimbursement payment for a period of time, the claimant was indeed over-compensated. However, the court held that the overpayment of fees and expenses could not be recovered from the claimant and that the employer was required to seek relief from the Supersedeas Fund for overpayments made from the date the modification petition was filed, not the date the claimant began working with a loss of earnings.

Case Law Alert - 1st Qtr 2011