C&R agreement that does not resolve an issue that is on appeal with the Board does not preclude the employer from recovering from the Supersedeas Fund.

The claimant filed a claim petition, which was granted by the Workers’ Compensation Judge. In his decision, the Judge established the claimant’s average weekly wage and compensation rate, which the employer appealed. In connection with the appeal, the employer requested supersedeas, which was denied by the Appeal Board.

While the appeal was pending, the employer filed a termination petition. Thereafter, the parties settled the case by C&R agreement. The employer’s termination petition was amended to a petition to seek approval of a C&R agreement. Later, the Board granted the employer’s appeal as to the calculation of the claimant’s average weekly wage and modified the claimant’s AWW and compensation rate. The employer then filed an application for Supersedeas Fund reimbursement.

The application was challenged by the Commonwealth. The Judge granted the application, but the Bureau appealed to the Appeal Board, which reversed. According to the Board, the C&R that was approved during the pendency of the employer’s appeal resolved all litigation and/or liability.

The Commonwealth Court reversed, holding that the C&R agreement did not settle the issue of the average weekly wage calculation. They noted that, following approval of the settlement, the employer did not withdraw the appeal of the average weekly wage issue pending before the Board. According to the court, the agreement did not settle the exact issue raised in the appeal, which was a dispute as to the average weekly wage.

Case Law Alerts, 2nd Quarter, April 2014