Claim Petition filed against Uninsured Employers Guaranty Fund not barred because claimant files civil action against uninsured employer for protection against running of the statute of limitations in civil case.

The issue considered by the Commonwealth Court was whether a Claim Petition against the Uninsured Employer’s Guaranty Fund was barred by §305 (d) of the Act where, after learning that an employer is uninsured, a claimant preserves a simple remedy by filing a “savings action” at law against an uninsured employer. The court also considered whether a claimant’s failure to give timely notice to the Fund that the employer is uninsured acts as a complete or partial bar to a claim against the Fund. The court held that the claimant did not violate §305 (d) when he filed a civil action to preserve his ability to recover in tort prior to the expiration of the statute of limitations. The court pointed out that the claimant faced a practical dilemma at the time. The court further pointed out that after a default judgment was awarded, the claimant appealed and later filed a Motion to Stay Proceedings, pending resolution of the workers’ compensation petitions. According to the court, this showed that the claimant’s first choice was not to recover tort damages.

However, the court did hold that the claimant failed to file the Notice of Claim with the Fund within the 45-day requirement of §1603 (b) of the Act. The court said the claimant had 45 days from the date he received the letter from the Bureau informing him that the employer did not have workers’ compensation insurance on the day of the alleged injury to file his Notice of Claim. Instead, the claimant waited until January of 2010 to do so, well beyond the requirement of the Act. As for the harm caused by the late filing, the court held that §1603 (b) does not serve as a bar to all compensation but, rather, delays the provision of compensation to the date notice is given.

_{Case Law Alerts, 4^th Quarter, October 2015}

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