ConocoPhillips v. Workers' Compensation Appeal Board

CONCURRING OPINION BY

Judge LEAVITT.

I concur in the result.

Snizaski v. Workers’ Compensation Appeal Board (Rox Coal Company), 847 A.2d 139 (Pa.Cmwlth.2004), established the principle that an employer’s statutory obligation to pay an award is stayed while its supersedeas request is being processed. Snizaski was decided three years after the events in question occurred, a point not mentioned by the majority. There was no way Employer could have anticipated the Snizaski rule. I believe, therefore, that an employer who paid within 30 days of an award, while a supersedeas request was pending could be held to have done so under a “deemed denial.” This would not, therefore, render the employer ineligible for recovery from the Supersedeas Fund. I fail to see a significant difference between a deemed denial and a deemed approval, as does the majority.

However, Employer made its payment 13 days after the deadline for making payment to Claimant had passed. Employer could have been assessed penalties, but was not. Indeed, the amount of these penalties could have equaled the amount of reimbursement available from the Super-sedeas Fund for Employer’s overpayment.

In light of these facts, I concur in the majority’s result. I disagree, however, that a “deemed denial” could not be found, in the appropriate case. It is hoped, however, that in light of Snizaski, few of these cases continue to linger.