D.A. Crocker v. WCAB (Georgia Pacific LLC)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David A. Crocker, :
Petitioner :
: No. 401 C.D. 2019
v. :
: Submitted: December 11, 2019
Workers’ Compensation Appeal :
Board (Georgia Pacific LLC), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE McCULLOUGH FILED: January 30, 2020
David A. Crocker (Claimant) petitions for review of the March 6, 2019
order of the Workers’ Compensation Appeal Board (Board) affirming the decision
and order of the Workers’ Compensation Judge (WCJ), which granted the petition to
review compensation benefits (Review Petition) filed by Georgia Pacific LLC
(Employer).
By way of background, in an earlier stage of this litigation, a WCJ
granted Claimant’s claim petition and, pursuant to section 440 of the Workers’
Compensation Act (Act),1 ordered Employer to pay Claimant litigation costs—which
1
Act of June 2, 1915, P.L. 736, as amended, added by section 3 of the Act of February 8,
1972, 77 P.S. §996(a). This provision provides in part as follows:
(Footnote continued on next page…)
did not include an award of attorney’s fees—that Claimant incurred in connection
with the petition because Claimant was the prevailing party. However, after
Employer was denied supersedeas and tendered payment to Claimant for the
litigation costs, the WCJ’s decision was reversed on appeal. See Crocker v. Workers’
Compensation Appeal Board (Dixie Consumer Products, LLC) (Pa. Cmwlth., No.
803 C.D. 2015, filed February 26, 2016) (unreported), slip op. at 10, appeal denied,
157 A.3d 482 (Pa. 2016); Board’s decision, 04/16/2015, at 1-7.2 Thereafter,
Employer filed the instant Review Petition, seeking disgorgement from Claimant on
the ground that the appellate tribunals ultimately determined that Claimant was not
entitled to workers’ compensation benefits and, therefore, the WCJ awarded the
(continued…)
(a) In any contested case where the insurer has contested liability in
whole or in part, including contested cases involving petitions to
terminate, reinstate, increase, reduce or otherwise modify
compensation awards, agreements or other payment arrangements or
to set aside final receipts, the employe or his dependent, as the case
may be, in whose favor the matter at issue has been finally
determined in whole or in part shall be awarded, in addition to the
award for compensation, a reasonable sum for costs incurred for
attorney’s fee, witnesses, necessary medical examination, and the
value of unreimbursed lost time to attend the proceedings:
Provided, That cost for attorney fees may be excluded when a
reasonable basis for the contest has been established by the employer
or the insurer.
77 P.S. §996(a) (emphasis added). For purposes of this opinion, we distinguish between what is
commonly referred to as “litigation costs” under section 440 of the Act, i.e., costs for “witnesses,
necessary medical examination, and the value of unreimbursed lost time to attend the proceedings,”
in contradistinction to an award of “attorney’s fees” under section 440 for an unreasonable contest.
2
The decisions of the Board and this Court in Crocker may be located in the Reproduced
Record (R.R.) at 12a-31a.
2
litigation costs erroneously. Relying upon Barrett v. Workers’ Compensation Appeal
Board (Sunoco, Inc.), 987 A.2d 1280 (Pa. Cmwlth.), appeal denied, 13 A.3d 480 (Pa.
2010) (holding, generally, that an employer may obtain reimbursement for litigation
costs that were awarded in error under section 440 of the Act), the WCJ granted the
Review Petition and ordered Claimant to reimburse Employer the amount of
litigation costs that Employer paid to Claimant’s counsel. The Board affirmed on
appeal.
The issue for this Court to decide is whether our decision in Barrett
should be overruled in light of the Supreme Court’s subsequent decision in County of
Allegheny v. Workers’ Compensation Appeal Board (Parker), 177 A.3d 864 (Pa.
2018) (Parker II) (holding, generally, that an employer cannot obtain reimbursement
for attorney’s fees that were awarded in error under section 440 of the Act). See also
County of Allegheny v. Workers’ Compensation Appeal Board (Parker), 151 A.3d
1210 (Pa. Cmwlth. 2016) (Parker I), vacated by Parker II. Upon review, we are
constrained to overrule Barrett and, having arrived at this conclusion, we must also
reverse the Board.
Facts/Procedural History
The relevant facts of this case are undisputed and are as follows. On
September 24, 2013, a WCJ issued a decision and order granting a claim petition filed
by Claimant against Employer under the Act.3 In the decision and order, the WCJ
found that Claimant submitted an exhibit of reasonable litigation costs totaling
$6,527.85 and ordered Employer to pay this amount to Claimant’s counsel. By check
dated December 6, 2013, Employer paid Claimant’s counsel the full amount of the
3
77 P.S. §§1-1041.1, 2501-2710.
3
litigation costs. Employer then appealed to the Board, and the Board denied
Employer’s request for supersedeas. (Reproduced Record (R.R.) at 1a-11a; WCJ’s
Findings of Fact (F.F.) Nos. 1-5.) See 34 Pa. Code §111.21(a)(6)(i)-(iv);4 see also
section 443(a) of the Act, added by the Act of February 8, 1972, P.L. 25, 77 P.S.
§999 (creating the Supersedeas Fund).5
4
Pursuant to the Board’s regulation at 34 Pa. Code §111.21, a request for supersedeas shall
be filed as a separate petition from the appeal and be accompanied with relevant information for the
Board’s consideration in determining whether the supersedeas request meets the following
standards: (1) the petitioner makes a strong showing that it is likely to prevail on the merits; (2) the
petitioner shows that, without the requested relief, it will suffer irreparable injury; (3) the issuance
of a supersedeas will not substantially harm other interested parties in the proceeding; and (4) the
issuance of a supersedeas will not adversely affect the public interest. 34 Pa. Code
§111.21(a)(6)(i)-(iv).
5
In relevant part, section 443 states:
(a) If, in any case in which a supersedeas has been requested and
denied under the provisions of section 413 or section 430, payments
of compensation are made as a result thereof and upon the final
outcome of the proceedings, it is determined that such
compensation was not, in fact, payable, the insurer [that] has
made such payments shall be reimbursed therefor . . . .
(b) There is hereby established a special fund in the State Treasury,
separate and apart from all public moneys or funds of this
Commonwealth, to be known as the [Workers’] Compensation
Supersedeas Fund. The purpose of this fund shall be to provide
moneys for payments pursuant to subsection (a), to include
reimbursement to the Commonwealth for any such payments made
from general revenues . . . .
77 P.S. §999 (emphasis added).
Generally speaking, under section 443(a), an employer that requests and is denied
supersedeas is eligible to obtain reimbursement from the Supersedeas Fund for “payments of
compensation” when, at the final outcome of the proceedings, a court concludes “that such
compensation was not, in fact, payable.” 77 P.S. §999. In Universal AM-CAN, LTD. v. Workers’
(Footnote continued on next page…)
4
On April 16, 2015, the Board reversed the WCJ’s order granting the
claim petition, concluding that the WCJ erred in determining that Claimant met his
burden of proving a work-related injury through unequivocal medical evidence. In
Crocker, this Court affirmed the Board, and our Supreme Court denied Claimant’s
petition for allowance of appeal on September 13, 2016. (R.R. at 12a-31a; WCJ’s
F.F. Nos. 6-7.)
On January 4, 2017, Employer filed the current Review Petition, alleging
that, after the Board denied its request for supersedeas, it paid $6,527.85 in litigation
costs to Claimant’s counsel pursuant to the WCJ’s decision and order. Employer
argued that relief was ultimately not granted to Claimant under the Act because the
Board reversed the WCJ’s decision and order, and this Court affirmed the reversal in
Crocker. On this basis, Employer asserted that it was entitled to reimbursement from
Claimant’s counsel of the litigation costs it previously paid. The WCJ agreed and, on
August 2, 2017, issued a decision and order granting the Review Petition and
ordering Claimant’s counsel to reimburse $6,527.85 to Employer. For support, the
WCJ cited our decision in Barrett. (WCJ’s Conclusion of Law (COL) No. 3-4;
decision at 2.)
(continued…)
Compensation Appeal Board (Minteer), 870 A.2d 961 (Pa. Cmwlth. 2005), this Court concluded
that both attorney’s fees and litigation costs that are awarded against, and paid by, an employer
under section 440 cannot be recouped by the employer from the Supersedeas Fund under section
443(a). In so determining, we emphasized that the language of section 443(a) mandates that an
employer can obtain reimbursement from the Supersedeas Fund only for “payments of
compensation,” which we found were limited to payments made “for wage loss benefits and
medical expenses.” 870 A.2d at 966-67. We explained that, by its terms, section 440 states that
litigation costs and attorney’s fees are not “compensation,” but are instead payments made “in
addition to compensation,” and, therefore, these types of payments are not eligible for
reimbursement from the Supersedeas Fund. Id.
5
Claimant appealed to the Board. While that appeal was pending, on
January 18, 2018, our Supreme Court decided Parker II.
By decision dated March 6, 2019, the Board affirmed the WCJ. In doing
so, the Board also relied upon our decision in Barrett and rejected Claimant’s
argument that Parker II should control and mandate a different outcome.
In its decision, the Board correctly noted that in Barrett, this Court held
that where an employer has been ordered to pay “litigation costs” under section 440,
the employer is denied supersedeas and pays those costs, and the legal basis for the
award of the costs is later reversed on appeal, “the WCJ can order [the] [c]laimant’s
counsel to refund the overpayment.” Barrett, 987 A.2d at 1290. The Board also
provided an accurate summation of Parker II. In that case, our Supreme Court held
that where an employer has been ordered to pay “attorney’s fees” under section 440
for an unreasonable contest, the employer is denied supersedeas and pays the fees,
and the legal basis for the award of attorney’s fees is later reversed on appeal, a WCJ
lacks the statutory authority to order “disgorgement or reimbursement of attorney’s
fees.” Parker II, 177 A.3d at 867. Viewing Barrett alongside Parker II, the Board
decided that Barrett was directly on point because that case dealt solely with
“litigation costs” under section 440, while Parker II concerned only “attorney’s fees,”
and the WCJ awarded just “litigation costs.” See supra note 1 (stating that, for
purposes of this opinion, this Court differentiates an award of “litigation costs,” i.e.,
costs incurred for “witnesses, necessary medical examination, and the value of
unreimbursed lost time to attend the proceedings,” from an award of an “attorney’s
fee” under section 440 of the Act). The Board further noted that the Supreme Court
in Parker II did not expressly overrule Barrett and stated that it was “beyond the
scope of [its] grant of allocatur to determine whether Barrett was wrongly decided.”
6
Parker II, 177 A.3d at 873 n.12. For these reasons, a majority of the Board affirmed
the WCJ. (Board’s decision at 2-4.)
A Commissioner of the Board authored a dissenting opinion expressing
the view that the Supreme Court’s decision in Parker II rested upon principles of
statutory interpretation and, therefore, the reasoning of Parker II applied equally to
this case. Specifically, the dissenting Commissioner offered the following discussion
in support of his conclusion:
In Parker [II], the Court examined [s]ection 440 of the Act
in great detail and concluded that it contained no statutory
mechanism for disgorgement of attorney’s fees that were
previously paid and supersedeas had been denied. While
Parker [II] only dealt with attorney’s fees, the analysis of
[s]ection 440 of the Act clearly applies to litigation costs, as
that section makes no distinction between the two except
when the reasonableness of the contest is at issue. Here,
there is no reasonable contest at issue, and thus, no reason
to make any distinctions between the payment of attorney’s
fees or litigation costs. Thus, there is no statutory language
or intent by the legislature to provide for disgorgement of
either attorney’s fees or litigation costs in [s]ection 440 of
the Act.
(Board’s decision, 3/6/19, Dissenting opinion at 2.)
Discussion
Before this Court,6 Claimant contends that the Board erred in relying on
our decision in Barrett rather than the Supreme Court’s decision in Parker II and
6
Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, or whether findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow
Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa.
Cmwlth. 2006).
7
observes that Parker II constitutes binding authority upon this Court. According to
Claimant, the reasoning utilized by the Supreme Court in Parker II effected a sub
silentio overruling of Barrett.7 Claimant argues that a plain reading of Parker II
reveals that any award of litigation costs or attorney’s fees under section 440 cannot
be disgorged from a claimant when, after the denial of supersedeas, they are paid by
an employer.
In pertinent part, section 440 of the Act states that in,
any contested case where the insurer has contested liability
. . . the employe . . . in whose favor the matter at issue
has been finally determined . . . shall be awarded, in
addition to the award for compensation, a reasonable sum
for costs incurred for attorney’s fee, witnesses,
7
Employer contends that Claimant waived this issue because he did not properly raise it
before the Board and failed to cite pertinent law. We disagree. In his appeal form, Claimant
generally maintained that the WCJ erred in ordering his counsel to reimburse Employer $6,527.85
and, more precisely, that Employer did not establish that Claimant would not be affected if the
litigation costs were reimbursed. Although Claimant did not cite section 440 of the Act or Barrett,
pursuant to the Board’s regulation, Claimant need only provide a “statement of the particular
grounds upon which the appeal is based, including reference to . . . the errors of law which are
alleged.” 34 Pa. Code §111.11(a)(2). Claimant has fulfilled that standard here, and his statement
with respect to being affected by the reimbursement is a direct reference to Barrett, which the WCJ
relied upon to support his decision and order. See Barrett, 987 A.2d at 1290 (stating that where
reimbursement is ordered, “[i]t is [the claimant’s] counsel that will be affected, not [the claimant],
and it will not affect [the claimant’s] compensation benefits”); WCJ’s decision at 2. Therefore, we
conclude that Claimant stated the allegation of error with the requisite degree of specificity, the
legal issue was not waived, and the Board, therefore, did not err in addressing it. Cf. 34 Pa. Code
§111.11(a)(2) (“General allegations which do not specifically bring to the attention of the Board the
issues decided are insufficient.”).
As an aside, we note that our Supreme Court did not decide Parker II until after Claimant
filed his appeal to the Board. However, Pennsylvania follows the general rule that “changes in
decisional law which occur during litigation will be applied to cases pending on appeal.”
McCloskey v. Workmen’s Compensation Appeal Board (J.H. France Refractories, Inc.), 460 A.2d
237, 239 n.3 (Pa. 1983); accord Blackwell v. State Ethics Commission, 589 A.2d 1094, 1099 (Pa.
1991).
8
necessary medical examination, and the value of
unreimbursed lost time to attend the proceedings:
Provided, That cost for attorney fees may be excluded when
a reasonable basis for the contest has been established by
the employer or the insurer.
77 P.S. §996(a) (emphasis added).
In Barrett, the WCJ and later the Board, in an appeal following a remand
to the WCJ, ordered the claimant to reimburse the employer for litigation costs that
the employer previously paid to the claimant, namely the costs that the claimant
incurred to depose a doctor to perform an impairment rating evaluation (IRE).
Ultimately, at the conclusion of the appeal process, the claimant did not prevail in his
IRE challenge. In concluding that the WCJ and Board possessed the authority to
order reimbursement of litigation costs that were awarded under section 440, this
Court reasoned:
[The employer] requests the Court to order [the claimant’s]
counsel to disgorge the $3,000.00 payment made by [the
employer] while the matter was litigated. The Board denied
[the employer’s] supersedeas and, thus, [the employer] was
required to pay [the claimant’s] counsel the $3,000.00 for
[the doctor’s] deposition while it challenged that aspect of
the WCJ’s decision. [The employer] points out that
[S]upersedeas [F]und reimbursement is not available for
litigation costs.[8] Unless this Court orders [the
claimant’s] counsel to disgorge the $3,000.00, its appeal
will be meaningless and [the claimant] will enjoy an
unjust enrichment.
[The employer] offers two cases [that] held that a claimant
may be ordered to return overpayments where there has
been an error in the nature of a mathematical miscalculation
of benefits. That is not the situation here. Nevertheless,
these cases support the concept that an overpayment can be
corrected. Further, our jurisprudence forbidding the
8
See supra note 5.
9
return of overpayment of compensation benefits by a
claimant [unless the employer obtains reimbursement
from the Supersedeas Fund] has no relevance here
because litigation costs, not compensation benefits, are
at issue.[9]
Because the WCJ erroneously ordered [the employer] to
pay $3,000.00, the WCJ can order [the claimant’s] counsel
to refund the overpayment. Such an order, while unusual,
is not without precedent. See Lucey v. Workmen’s
Compensation Appeal Board (Vy-Cal Plastics PMA
Group), 732 A.2d 1201 (Pa. 1999) (where the WCJ ordered
the claimant's counsel to disgorge $35,109.27 that had been
improperly awarded as counsel fees). It is [the claimant’s]
counsel that will be affected, not [the claimant], and it will
not affect [the claimant’s] compensation benefits.
987 A.2d at 1290 (footnote and some citations omitted) (emphasis added).
In Parker I, the Board ordered the employer to pay the claimant
$14,750.00 in attorney’s fees under section 440 of the Act, finding that the employer
engaged in an unreasonable contest. After being denied supersedeas, the employer
paid the amount. Thereafter, on appeal, this Court reversed the Board, concluding
that the employer not only had a reasonable basis for its contest, but also prevailed as
a matter of law in the underlying proceedings. The employer then filed a separate
petition before a WCJ, asserting that it was entitled to reimbursement of the
attorney’s fees from the claimant’s counsel under section 440 because the fee award
was made in error. The WCJ and the Board denied the petition.
On appeal, we reversed, relying exclusively on our decision in Barrett.
A panel of this Court opined that “[a]lthough Barrett involved non-attorney fee
litigation costs, our reasoning in Barrett [was] equally applicable to the unreasonable
contest attorney fees” and “compels the conclusion that [the employer] is entitled to
9
See supra note 5.
10
an order requiring [the claimant’s counsel] to refund the $14,750.00 that he was
erroneously awarded.” Parker I, 151 A.3d at 1214. In reaching this conclusion, we
specifically determined that “[e]very factor on which this Court based its holding in
Barrett [was] present.” Parker I, 151 A.3d at 1215.
In Parker I, this Court first observed that awards of litigation costs and
attorney’s fees are both made under the same section of the Act, section 440. In this
regard, we linked the case to Barrett, and stated as follows:
Indeed, [s]ection 440 includes unreasonable contest
attorney fees as a type of litigation cost. While awards of
attorney fees are subject to additional requirements not
applicable to other costs, both unreasonable contest attorney
fees and other litigation costs are payment “in addition to
the award for compensation,” not payment of compensation
benefits, and both are equally limited to claimants “in
whose favor the matter at issue has been finally
determined.” Id. Therefore, as in Barrett, an order to
refund unreasonable contest attorney fees involves no
repayment of compensation benefits and denying a refund
order results in the same unjust enrichment of allowing
an unsuccessful claimant’s counsel to keep funds that
may only be awarded where the claimant is the
prevailing party.
Parker I, 151 A.3d at 1215 (emphasis added).
Next, in further analogizing the case to Barrett, we believed that the
claimant would receive a “windfall” and pointed out that
[t]he lack of any other remedy is also the same for
unreasonable contest attorney fees as it is for other
costs. Because Supersedeas Fund reimbursement is limited
to “payments of compensation,” [] only disability and
medical payments can be recovered and an employer,
following a successful appeal, has no recourse from the
Supersedeas Fund for either unreasonable contest
attorney fees or other litigation costs. Finally, as in
Barrett, the order sought by [the employer] here would
11
require only that [claimant’s counsel] refund money that he
received and would not require any payment from [the
claimant].
Parker I, 151 A.3d at 1215.
Accordingly, this Court in Parker I concluded that the WCJ and the
Board erred in denying the employer’s petition for an order directing the claimant’s
counsel to refund the attorney’s fees that were awarded under section 440. We
reversed and remanded the matter to the appropriate administrative tribunal with
instructions to grant the employer’s petition and order the claimant’s counsel to
reimburse the employer the $14,750.00 that the employer paid for attorney’s fees.
On further appeal, our Supreme Court in Parker II vacated our decision
in Parker I and reinstated the order of the Board denying the employer’s petition for
reimbursement. In Parker II, the claimant’s primary contention was that he should
not be required to disgorge the attorney’s fees because there is no express statutory
basis for such a directive in the Act, and that only the General Assembly has the
authority to create a mechanism for reimbursement of fees that were awarded in error
under section 440.
In response, the employer chiefly argued that Parker I was a modest and
natural extension of Barrett and, although Barrett involved litigation costs other than
attorney’s fees, the distinction was irrelevant because litigation costs and attorney’s
fees are both granted and awarded pursuant to section 440. Citing cases where the
courts have used equitable principles when interpreting provisions of the Act, the
employer also argued that it would be unfair to require it to pay attorney’s fees when
it had a reasonable basis for its contest and that the claimant’s counsel would be
unjustly enriched if the employer was unable to obtain reimbursement.
In addressing these arguments, the Supreme Court in Parker II began by
commenting on our decision in Barrett and stated as follows:
12
Initially, we note that there is a dearth of case law to
support disgorgement of an already paid unreasonable
contest attorney’s fee under [s]ection 440. Though the
Commonwealth Court in Barrett relied upon this
Court’s decision in Lucey when concluding that
disgorgement is not without precedent, [] the Lucey Court
merely noted that the WCJ in that case ordered
reimbursement when reciting the factual and procedural
history of the case, and did not opine as to the validity of
such an order where, as in that case, it was not challenged.
Thus, Lucey supports neither the Barrett decision nor the
[the employer’s] position, and we do not rely on either
case in reaching our conclusion herein. Rather, our
holding is based upon the General Assembly’s failure to
provide any basis for ordering reimbursement of
attorney’s fees in the Act, and upon the general policies
established by the relevant statutory provisions.
Parker II, 177 A.3d at 873-74 (emphasis added).
From this threshold observation, the Supreme Court discussed the
applicable statutory scheme of the Act and its relationship to concepts that were
founded in equity:
Turning to the statutory provisions at issue here, we
observe that the Act sets forth the following: (1) if an
employer unreasonably contests its liability under the
Act and the claimant prevails, then the employer may be
required to pay attorney’s fees associated with the
unreasonable contest, 77 P.S. §996 []; (2) an employer may
appeal and request a supersedeas of an order requiring
payment of workers’ compensation or unreasonable contest
attorney’s fees, as the [employer] did in the case sub judice,
[]; and (3) if it is ultimately determined that an employer
was erroneously required to pay workers’ compensation
benefits, then it may be reimbursed for those payments
by the [Supersedeas Fund] established under [s]ection
443 of the Act; 77 P.S. §999[]. Unlike the
reimbursement of compensation benefits, for which
there is clear statutory support, there is no express
concomitant right to reimbursement of attorney’s fees
13
under [] [s]ection 443 [], or, indeed anywhere else in the
Act. The [employer] does not dispute the above
formulation of the relevant statutory provisions. Rather,
[the employer] contends that, regardless, equitable
principles dictate that an extra-statutory mechanism
should be read into the Act to prevent unjust
enrichment.
We hold, however, that the intricate statutory scheme
enacted by the General Assembly precludes such a
reading of the Act. As noted, the General Assembly
expressly provided for reimbursement of erroneously
paid compensation benefits when it established the
[Supersedeas] Fund. However, despite being aware of the
availability of unreasonable contest attorney’s fees, and of
the requirement that they be paid immediately when
awarded, see [section 430 of the Act,] 77 P.S. §971
(providing that an employer who refuses to furnish payment
without being granted a supersedeas shall be subject to a
penalty), the legislature simply did not include any
provision providing for disgorgement or reimbursement
of attorney’s fees, if the attorney’s fees are ultimately
found to be unwarranted.
Parker II, 177 A.3d at 874 (some internal citations omitted).
Upon its review of the pertinent provisions of the Act and their interplay
in overall context of the Act, the Supreme Court deduced the following conclusion:
Thus, an inference can be drawn from the General
Assembly’s decision to create a specific fund for
reimbursement of compensation benefits, but not for
attorney’s fees and costs, that it intended the latter to be
ultimately borne by the employer once paid. It appears
that the General Assembly may have contemplated that the
ability to request supersedeas of an attorney’s fee award on
appeal would suffice to protect employers from having to
pay out erroneous awards under [s]ection 440, and that
where, as here, an inappropriate award is paid, employers
are the better party to absorb the loss.
* * *
14
It is not the function of this Court to add missing language
to a statute in order to provide relief; particularly when
doing so would undermine that statute’s goals of protecting
workers and discouraging employers from unreasonably
contesting their liability. Consequently, we decline to
engraft on to the Act a means for reimbursement of
previously paid counsel fees, where the General
Assembly did not see fit to so provide.
Parker II, 177 A.3d at 874-75 (internal citations omitted) (emphases added).
Based on these reasons, the Supreme Court held that section 440 of the
Act does not permit an employer, after requesting and being denied supersedeas, to
disgorge attorney’s fees that it paid to a claimant’s counsel for an unreasonable
contest when an appellate tribunal subsequently determines that the award of
attorney’s fees was made in error.
Despite its analysis and conclusion, the Supreme Court stated in a
footnote: “Though we reject the Commonwealth Court’s reliance on Lucey and
Barrett in deciding the instant matter, it is beyond the scope of our grant of allocatur
to determine whether Barrett was wrongly decided.” Parker II, 177 A.3d at 873
n.12.
Turning to the issue presented, we note that “[u]nder stare decisis, we
are bound to follow the decisions of our Court unless overruled by the Supreme Court
or where other compelling reasons can be demonstrated.” Pries v. Workers’
Compensation Appeal Board (Verizon Pennsylvania), 903 A.2d 136, 144 (Pa.
Cmwlth. 2006). One example of a compelling reason is where an intervening
decision by the Pennsylvania Supreme Court calls into question a previous decision
of this Court and clearly indicates that our decision “no longer accurately states the
law of this Commonwealth.” LaValle v. Office of General Counsel of the
Commonwealth, 737 A.2d 330, 332 (Pa. Cmwlth. 1999), aff’d, 769 A.2d 449 (Pa.
2001). In such a situation, this Court will not hesitate to declare that our precedent
15
has effectively “been [] overruled by a recent decision of the Pennsylvania Supreme
Court.” Rossi v. Indiana County Tax Claim Bureau, 494 A.2d 526, 528 (Pa. Cmwlth.
1985).10 Recently, this Court explained that the legal rule, or “holding,” of a case
includes the reasoning essential to and in support of it, and that, “[o]n a fundamental
level, a legal rule can only go so far as the reason that carries it.” Penjuke v.
Pennsylvania Board of Probation and Parole, 203 A.3d 401, 412 (Pa. Cmwlth. 2019)
(en banc). Thus, if there is a change in the law, whether it be statutory or decisional,
that severely erodes the rationale that once constituted and sustained the considered
judgment of our precedent, our precedent has been displaced and must give way to
that change in the law. See id. at 412-14.
Upon review, we conclude that our decision in Barrett cannot survive
scrutiny under Parker II and that the analysis employed by our Supreme Court in that
case had a superseding effect on Barrett. As an initial matter, our Supreme Court
noted that, but for Barrett, there was no basis in the decisional law “to support
disgorgement of an already paid unreasonable contest attorney’s fee under [s]ection
440.” Parker II, 177 A.3d at 873. Importantly, in Parker I, this Court depended
entirely upon Barrett and placed full reliance on its rationale. More specifically, we
found that “our reasoning in Barrett [was] equally applicable to [] unreasonable
contest attorney fees” and that, therefore, Barrett “compels the conclusion” that the
employer was entitled to reimbursement under section 440. Parker I, 151 A.3d at
1214-15. In importing the analysis of Barrett on a wholesale basis, this Court in
Parker I emphasized that, “as in Barrett,” 151 A.3d at 1214, the claimant would be
10
See, e.g., Department of Corrections v. Unemployment Compensation Board of Review,
943 A.2d 1011, 1015 n.3 (Pa. Cmwlth. 2008); Two Sophia’s, Inc. v. Pennsylvania Liquor Control
Board, 799 A.2d 917, 919 n.3 (Pa. Cmwlth. 2002); Holland v. Norristown State Hospital, 584 A.2d
1056, 1058 n.7 (Pa. Cmwlth. 1990).
16
the recipient of unjust enrichment if the employer was denied a refund because an
employer has no recourse from the Supersedeas Fund. This justification, along with a
citation to our Supreme Court’s decision in Lucey, constitutes the pillar that sustained
the holding in Barrett and, a fortiori, the holding in Parker I.
However, in refuting our decision in Parker I, the Supreme Court
necessarily discredited our decision in Barrett and, in so doing, essentially overruled
that case. In Parker II, our Supreme Court expressly rejected the idea that “equitable
principles . . . should be read into the Act to prevent unjust enrichment,” determining
“that the intricate statutory scheme enacted by the General Assembly precludes such
a reading of the Act.” Parker II, 177 A.3d at 874. The Supreme Court also
denounced the Barrett Court’s reliance on its decision in Lucey as proof “that
disgorgement is not without precedent” and concluded, instead, that “Lucey supports
neither the Barrett decision nor the [employer’s] position” in Parker II. 177 A.3d at
873-74. With these conclusions, the Supreme Court in Parker II, for all intents and
purposes, rendered Barrett foundationless.
In addition, and significantly, the Supreme Court determined that the
Parker I Court placed unfounded “reliance on . . . Barrett in deciding the instant
matter.” Parker II, 177 A.3d at 873 n.12. As explained above, our decision in
Parker I was wholly and inexorably dependent upon the reasoning of Barrett. Since
Parker I rises or falls based upon the status of Barrett, and the Supreme Court in
Parker II made clear that this Court in Barrett erred in applying equitable principles
rather than conducting a statutory construction analysis, then, as a necessary
corollary, Barrett is no longer good law.
This conclusion is bolstered by the Supreme Court’s penultimate
conclusion that “the General Assembly, in enacting the [Act], did not provide any
17
mechanism by which employers can recoup erroneously awarded counsel fees, once
paid,” “there is no statutory provision authorizing reimbursement if the award is
reversed,” and, therefore, the [employer] may not recoup the already paid attorney’s
fees from the [claimant’s] counsel.” Parker II, 177 A.3d at 865. Just as there is no
statutory mechanism to provide reimbursement to an employer for erroneously
awarded attorney’s fees in section 440 of the Act, there is no statutory mechanism to
provide reimbursement to an employer for erroneously awarded litigation costs in
section 440 of the Act. Indeed, our Supreme Court drew the inference that the
General Assembly intended the employer to absorb payments made for both
“attorneys’ fees and costs” under section 440, Parker II, 177 A.3d at 874, and neither
attorney’s fees nor litigation costs are eligible for reimbursement from the
Supersedeas Fund, Universal AM-CAN, LTD., 870 A.2d at 966-67.
Consequently, because both “attorney’s fees” and “litigation costs” are
awarded pursuant to section 440, and any perceived distinction between the two is
superficial and immaterial in the sense and circumstance where they are awarded
erroneously, Barrett is not legally distinguishable from Parker II. And, because the
holding in Barrett directly conflicts with the holding in Parker II, in terms of
reasoning and disposition, Barrett must be considered as retaining no vitality in the
post-Parker II landscape. In sum, the core holding in Parker II has superseded the
holding in Barrett and, contrary to what we said in Barrett, an employer cannot
recoup litigation costs under section 440 from a claimant’s counsel in the situation
where the employer is denied supersedeas and it is later determined that the award of
litigation costs was made in error.
18
Conclusion
Although our Supreme Court stated that it was outside the scope of its
grant of allowance of appeal “to determine whether Barrett was wrongly decided,”
Parker II, 177 A.3d at 873 n.12, the Court did all the leg work necessary for us to
make such a determination. Based upon our reading of Parker II and the pertinent
statutory sections of the Act, we conclude that Barrett and Parker II represent an
irreconcilable conflict: Whereas the Barrett court concluded that the equitable
doctrine of unjust enrichment supported reimbursement of erroneously awarded
litigation costs, the Parker II court concluded that the doctrine was an inapplicable
“extra-statutory mechanism” that could not be read into the Act. Parker II, 177 A.3d
at 874. Having undermined the principal rationale of Barrett, the Supreme Court in
Parker II then announced a legal rule or holding that contradicted—and was directly
opposite to—the one derived in Barrett. As a result, we conclude that Parker II
abrogated Barrett, albeit not expressly, but nonetheless indubitably.
Accordingly, for the above-stated reasons, this Court expressly overrules
Barrett. Consequently, we reverse the order of the Board.
________________________________
PATRICIA A. McCULLOUGH, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David A. Crocker, :
Petitioner :
: No. 401 C.D. 2019
v. :
:
Workers’ Compensation Appeal :
Board (Georgia Pacific LLC), :
Respondent :
ORDER
AND NOW, this 30th day of January, 2020, the March 6, 2019 order
of the Workers’ Compensation Appeal Board (Board) is hereby reversed.
________________________________
PATRICIA A. McCULLOUGH, Judge