Evans v. WCAB (Highway Equipment and Supply Co.), __ A.3d __ (Pa. Cmwlth. No. 2252 C.D. 2013, filed June 30, 2014).
A claimant’s claim petition was granted in January 2009. A subrogation lien for medical expenses totaling $29,995.59 was asserted, prior to the decision granting the claim. The claimant filed a penalty petition based on the employer’s failure to pay for medical expenses paid by Highmark Blue Shield. In support of the penalty petition, the claimant submitted a Healthcare Recoveries lien letter, through which Healthcare agreed to pay an attorney’s fee to claimant’s counsel for reimbursement of its lien. The penalty petition was granted and the employer was directed to pay the $29,995.59 incurred in medical expenses to the “healthcare provider” less the 20% attorney fee. The claimant appealed arguing that the $29,995.59 should have been payabledirectly to the claimant.
The Board remanded to the WCJ to determine whether the medical expanses plus interest were payable directly to claimant. On remand, the WCJ found that the lien had been asserted before the decision was circulated. As such, the employer was not to pay medical expenses or statutory interest directly to the claimant. The claimant appealed and the Board affirmed. The employer also appealed on the basis that the $29,995.59 had been repaid by the provider to Highmark, but the issue was not within the scope of the remand instruction, and was thus dismissed. The Board affirmed the WCJ’s decision.
Through his appeal, the claimant relied on the Frymiare case, which holds that an employer must still pay medical expenses to a claimant, even if a third party has already defrayed the cost, but has not asserted its subornation rights. In this case, however, the claimant submitted a letter confirming the existence of a subrogation lien for the awarded medical expenses. Thus, the agreement for the subrogation was in place prior to the issuance of the decision on the claim.
Accordingly, the Court found that Highmark had properly preserved its subrogation lien and that the Board did not err in concluding that the medical expenses should not be paid directly to the claimant. The decision denying the penalty petition was affirmed.