By: Kevin L. Connors, Esquire
In a recent Pennsylvania Commonwealth Court decided on June 14, 2016, in Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board, the Commonwealth Court addressed an issue often unique in workers’ compensation practice, being whether the an order that is clearly marked “Interim/Interlocutory”, further specifically providing on the face of the Decision cover letter, that “This Interim/Interlocutory Order is Not Subject to Appeal”, is actually appealable, in which case a party may ultimately be precluded from appealing a final Decision if it did not previously take an appeal from the Interim/Interlocutory Order.
In the context of compensation litigation, it is sometimes necessary for a workers’ compensation judge to dispose of certain interim issues, such as an employer’s request for Supersedeas, or the request of a Claimant for the imposition of a Section 410 order, with workers’ compensation judges addressing these ancillary issues by issuing Interlocutory Orders that are not subject to appeal, as an Interim/Interlocutory Order is not a final order under the Pennsylvania Rules of Appellate Procedure.
However, in the byzantine universe of workers’ compensation procedure, there are unique instances where an order, initially described as “Interim/Interlocutory”, is one that, if not appealed, cannot later be appealed when a final decision issued by the workers’ compensation judge disposes of all litigated issues in the claim.
If there is some confusion as to what the heck we are talking about, welcome aboard.
Perhaps some facts might help cut through this procedural fog.
The UEGF case involved the Claimant filing a Claim Petition against an uninsured employer, in response to which the UEGF filed a Joinder Petition against the uninsured employer’s prior insurance carrier, Somerset Insurance..
The uninsured employer’s prior insurance carrier, in the course of answering the Joinder Petition, also filed a Motion to Strike/Dismiss, on grounds that its coverage with the uninsured employer had lapsed prior to the date of the work injury claimed by the Claimant.
Issuing a docket cleansing “Interim/Interlocutory” order, the workers’ compensation judge dismissed the Fund’s Joinder Petition, concluding that the uninsured employer’s prior insurance carrier did not provide insurance coverage to the employer on the date of injury claimed by the Claimant, with the face sheet of the decision specifically indicating that the order was Interlocutory only, and specifically indicating “this order does not constitute a final disposition of Claimant’s petition but is only a determination of the Motion to Dismiss the Joinder Petition. These Interlocutory findings of fact and conclusions of law will be incorporated into the final decision for purposes of potential appeal to the matters decided herein.”
Pretty explicit and exacting language nonetheless, the “Interim/Interlocutory” order also indicated: “This order is not subject to appeal.”
Guess who did not file an appeal?
Skipping ahead to the workers’ compensation judge’s final decision on the merits of the Claimant’s Claim Petition, in the course of which the workers’ compensation judge reaffirmed the prior Interlocutory Order regarding the Joinder Petition, the UEGF filed an appeal of the Judge’s decision to the Workers’ Compensation Appeal Board, with the Board holding that the “Interim/Interlocutory” order issued by the workers’ compensation judge to dismiss the Joinder Petition was actually a final order that should have been appealed, consequently resulting in the Appeal Board finding that UEGF’s appeal was untimely, resulting in its denial and dismissal.
The Appeal Board based its decision on Knish v. WCAB (Jerome Enterprises), 536 A.2d 856 (Pa. Cmwlth.), setting forth the elements of a final order, held to be one that “ends litigation, disposes of the entire case, puts a litigant out of court or precludes a party from pressing the merits of his claim.”
The Appeal Board also cited to the Commonwealth Court’s Decision in 3D Trucking v. WCAB (Fine), 921 A.2d 1281 (Pa. Cmwlth. 2007), holding that an order granting a Joinder Petition is not interlocutory in nature, as it resolves all issues raised by the Joinder petition.
In the case at issue, the Appeal Board drew a distinction between a Joinder Petition and an underlying Claim Petition, as the Appeal Board noted that a workers’ compensation judge is not required to necessarily consolidate a Joinder Petition with any other pending petitions, as the Joinder Petition can be granted or denied on its own merits.
In that context, an unconsolidated Joinder Petition is a procedural dispute in its own WCAIS context.
Applying that logic to the instant case, the Appeal Board held that the “Interlocutory” order granting the uninsured employer’s prior insurance carrier’s Motion to Dismiss the Joinder Petition effectively “ended the litigation against Somerset, resolved all issues raised by the Joinder Petition, and disposed of the entire case against Somerset.”
For that reason, the Appeal Board determined that the Interlocutory Order was, in actuality, a final order as to the Joinder Petition, and issues raised thereunder, notwithstanding that the Interlocutory Order had specifically said that it was not what it ended becoming, a final order.
The Appeal Board also held that the declaration by the workers’ compensation judge in the Interlocutory Order was “not subject to appeal” actually had no procedural bearing on the outcome of the Joinder Petition, being its final dismissal.
Appealing to the Commonwealth Court, the UEGF argued that the Appeal Board incorrectly dismissed its appeal as being untimely, with the Commonwealth Court holding, that an order from a workers’ compensation judge dismissing a Joinder Petition is a final and appealable order, as it addresses all issues in the Joinder Petition with finality.
However, the Commonwealth Court carefully considered the “apparent confusion” that resulted from the workers’ compensation judge’s Interlocutory Order being described as “not subject to appeal”, as a basis for considering that the UEGF might be entitled to an appeal nunc pro tunc, with the Commonwealth Court remanding the case back to the Appeal Board to determine whether the elements necessary to support a nunc pro tunc appeal were present.
Believing that the requisite elements for an appeal nunc pro tunc were present, the Commonwealth Court remanded the appeal back to the Appeal Board, directing the Appeal Board to determine if the UEGF was entitled to appeal the workers’ compensation judge’s incorrectly described “Interim/Interlocutory” order dismissing the UEGF’s Joinder Petition.
Is there a takeaway?
If there is, it is that “not subject to appeal” might not always be an accurate description of the appealability of a decision otherwise described as being “Interim”, meaning that an “Interim” order needs to be carefully reviewed to determine the issues being decided, as well as their finality.
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