Department of Labor and Industry v. WCAB (Excelsior Ins.)

In Department of Labor and Industry v. Workers' Compensation Appeal Board (Excelsior Ins.), 987 A.2d 855 (Pa. Cmwlth. 2010), which is controlling in this case, we held that recovery fees are compensation under Section 443(a) of the Act. The Court stated, "we discern no clear indication from Section 319 that an insurer is required, in the context of Supersedeas Fund reimbursement, to assume the costs of recovering a third party settlement for periods in which there has been a determination that compensation was not, in fact, payable." Id. at 862. The Court further explained "although the amounts for which insurer is seeking reimbursement correlate to what is designated as recovery costs when the subrogation calculations were made under Section 319, as the Board correctly stated, Section 319 does not 'convert the compensation paid for wage loss and medical benefits into something else for the purposes of Section 443(a)...'" Id. at 863. The payments in Excelsior Ins. were deemed payments of "compensation" for purposes of Section 443 of the Act and reimbursement was found appropriate.