There is no mechanism for reimbursement of erroneously awarded litigation costs.

A mechanism does not exist under the Act to provide reimbursement to an employer for erroneously awarded litigation costs.

Crocker v. WCAB (Georgia Pacific LLC); 401 C.D. 2019; filed Jan. 30, 2020; Judge McCullough

The judge granted a claim petition and ordered the employer to reimburse the claimant’s litigation costs. Later, the employer appealed and, after supersedeas was denied, paid the costs. Ultimately, the judge’s decision was reversed on appeal. The employer then filed a review petition, arguing that because the judge erroneously awarded litigation costs, it was entitled to reimbursement of those costs from the claimant on the basis that it was ultimately determined the claimant was not entitled to workers’ compensation benefits. The judge granted the petition and ordered the claimant to reimburse the employer. The Workers’ Compensation Appeal Board affirmed on appeal.

The claimant appealed to the Commonwealth Court, which noted that in Barrett v. WCAB (Sunoco, Inc.), 987 A.2d 1280 (Pa. Cmwlth.), appeal denied, 13 A.3d 480 (Pa. 2010), they held that an employer may obtain reimbursement for litigation costs awarded in error under § 440 of the Act. However, the court concluded that Barrett should be overruled in light of the Supreme Court’s later decision in County of Allegheny v. WCAB (Parker), 177 A.3d 864 (Pa. 2018) (Parker II), wherein the court held that an employer cannot obtain reimbursement for attorney’s fees that were awarded in error under § 440. The Commonwealth Court reversed the decisions of the judge and the Board, holding that under Parker II, the doctrine of unjust enrichment was an inapplicable and “extra-statutory mechanism” that cannot be read into the Act. Since there is nothing in the Act to allow for reimbursement to an employer for erroneously awarded attorney’s fees, there is nothing under the Act to allow for reimbursement to an employer for erroneously awarded litigation costs.

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