Case Law Update | Lozado v. WCAB (Pa. Cmwlth. August 5, 2015) | PA Work Injury

August 26, 2015

Employer loses immunity from suit in tort when it does not comply with Act by, e.g., failing to maintain WC insurance.  Also informative on creation of UEGF in 2006.  Facts here not likely to recur because injury and litigation occurred in UEGF infancy and Claimant had to file in tort or be time-barred:  “Claimant faced a practical dilemma at a time when the Fund was new and little guidance was available.”  Claim Petition was filed timely, then once informed Employer was uninsured, Claimant had only 13 days before two-year tort time bar hit, and did so via praecipe, which held situation in abeyance until WC situation could be resolved.  This was OK and did not bar ability to pursue WC.

 

As for filing with UEGF within 45 days of knowledge of uninsured employer, CC held that lateness is not total bar of recovery, but delays provision of compensation to date notice is given to UEGF.  77 PS 2703 is clear (shall notify the fund within 45 days of knowledge) and that no compensation is due until notice is given.  Here, Claimant learned on 4/28/09 but did not file with Fund until 1/5/10, about 9 months later:  “Those who do not meet the statutory deadline are only entitled to compensation for medical/wages incurred from date notice is given.

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