IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason Lewis, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Fastrack Construction, Inc.), : No. 416 C.D. 2016

Respondent : Submitted: September 16, 2016

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: December 19, 2016

Jason Lewis (Claimant) petitions this Court for review of the Workers’ 

Compensation (WC) Appeal Board’s (Board) March 4, 2016 order affirming the 

Workers’ Compensation Judge’s (WCJ) decision, on remand, granting Fastrack 

Construction, Inc.’s (Employer) Review Benefit Offset Petition (Offset Petition). 

The sole issue before the Court is whether the Board erred in affirming the WCJ’s 

decision.1 After review, we affirm.

Claimant sustained a work-related back injury on January 23, 2009

when, while in the course and scope of his employment as a carpenter with Employer,

another contractor’s (McGregor Industries, Inc.) employee assaulted him. By June 8, 

2009 decision, a WCJ accepted Employer’s and Claimant’s Stipulation of Facts, 

 

1 Claimant presented two issues for this Court’s review: (1) whether the Board erred by 

affirming the WCJ’s decision ordering the Philadelphia County Common Pleas Court’s 

prothonotary (Prothonotary) to release funds; and (2) whether substantial evidence supports the 

Board’s holding that the WCJ merely “directed” the Prothonotary to release funds. Both issues are 

subsumed in the issue of whether the Board erred in affirming the WCJ’s decision.
2

wherein, the parties agreed to Claimant’s work injury and Employer would provide 

Claimant temporary total disability benefits in the amount of $836.00 per week 

beginning January 24, 2009. Thereafter, by January 13, 2010 decision, the WCJ 

approved a Compromise and Release Agreement (Agreement), pursuant to which 

Employer and Claimant agreed that, in resolution of all future indemnity claims for 

Claimant’s January 23, 2009 work injury, Employer would pay Claimant $90,000.00, 

less a 20% counsel fee. Under the Agreement, Employer would not be responsible 

for any medical treatment incurred by Claimant on or after January 13, 2010, and 

Employer would assert a $140,000.00 subrogation lien against McGregor Industries, 

Inc.

On August 27, 2012, Employer filed the Offset Petition, seeking a 

subrogation credit for a third-party recovery. Claimant filed an Answer denying the 

allegations. On April 30, 2013, because the WCJ concluded that Employer 

established its immediate $140,000.00 subrogation right, the WCJ granted

Employer’s Offset Petition. The WCJ ordered Claimant to immediately make an outof-pocket $140,000.00 lump sum payment to Employer’s WC insurer, Liberty Mutual 

Insurance Company (Liberty Mutual). Claimant appealed to the Board. 

On February 20, 2015, the Board reversed the WCJ’s order directing 

Claimant to pay Employer $140,000.00, vacated the WCJ’s decision and remanded 

the matter to the WCJ to reopen the record as necessary to receive additional 

evidence, and to issue appropriate findings of fact, conclusions of law and an order 

addressing Employer’s Offset Petition. The Board specifically directed the WCJ to 

make “an explicit finding concerning the amount of attorney’s fees or costs which 

were paid, which require resolution pursuant to the cited cases. Stalmaster [v. 

Workmen’s Comp. Appeal Bd. (SEPTA), 679 A.2d 293 (Pa. Cmwlth. 1996)]; [Pa.

Mfrs. Ass’n Ins. Co v.] Wolf[, 626 A.2d 522 (Pa. 1993)].” Board Dec. at 6, 

Reproduced Record (R.R.) at 26a.
3

On remand, the WCJ granted the Offset Petition for a total amount of 

$30,015.47, after determining that Employer had a right to subrogation in the amount 

of $60,000.00, less $21,000.00 in attorney fees and $8,984.53 in litigation expenses.

The WCJ specified:

It is ORDERED that the [Philadelphia Common Pleas 

Court’s (trial court) prothonotary (Prothonotary)] or 

otherwise, make payments of $30,0150.47 [sic] for 

satisfaction of the [WC] Lien to [Liberty Mutual], in care of 

Counsel of record for the [WC] matter of Jason Lewis v. 

Fastrack Construction, Inc., Rhonda Harris, Esquire . . . of 

$21,000.00 for Counsel Fees . . . to Counsel of record for

[Claimant], The Law Offices of Christy Adams, PC . . . and 

of $8,984.53 for reimbursement of costs in the matter of 

Jason Lewis v. McGregor Industries, Inc. . . . to Counsel of 

record for [Claimant], The Law Offices of Christy Adams, 

PC . . . from the deposits as a result of the arbitration of the 

civil action, Jason Lewis v. McGregor Industries, Inc. and 

Gilbane Building Company, October Term, 2010, No. 

00550, in the [trial court], and in an account with the

[Prothonotary], in accordance with the terms of the [WC 

Act (Act)2].

WCJ Dec. at 10, R.R. at 18a. Claimant appealed to the Board. On March 4, 2016, 

the Board affirmed the WCJ’s order granting Employer’s Offset Petition. Claimant 

appealed to this Court.3

Claimant argues that the Board erred by affirming the WCJ’s decision 

ordering the Prothonotary to release third-party recovery funds to satisfy Employer’s 

subrogation lien because the Act does not confer such jurisdiction on WCJs. 

 

2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.

3

“On review[,] this Court must determine whether constitutional rights were violated, errors 

of law were committed, or necessary findings of fact were supported by substantial competent 

evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6 

(Pa. Cmwlth. 2014).
4

Employer responds that the WCJ had exclusive jurisdiction to determine its 

entitlement to the lien.

Initially, the third-party recovery funds were put in escrow as a result of 

McGregor Industries, Inc.’s Motion to Confirm Judgment of Arbitrator and Enforce 

Settlement and Stay Distribution of Third Party Settlement Funds (Motion)4filed 

with the trial court. On March 26, 2013, the trial court granted the Motion and 

expressly ordered that “[t]he arbitration molded award of $60,000.00 is to be 

deposited with the Prothonotary pending the resolution of the [WC] lien.” Trial Ct. 

Order (emphasis added).

Section 319 of the Act provides, in relevant part:

Where the compensable injury is caused in whole or in 

part by the act or omission of a third party, the 

employer shall be subrogated to the right of the 

employe, his personal representative, his estate or his 

dependents, against such third party to the extent of the 

compensation payable under this article by the 

employer; reasonable attorney’s fees and other proper 

disbursements incurred in obtaining a recovery or in 

effecting a compromise settlement shall be prorated 

between the employer and employe, his personal 

representative, his estate or his dependents. The employer 

shall pay that proportion of the attorney’s fees and other 

proper disbursements that the amount of compensation paid 

or payable at the time of recovery or settlement bears to the 

total recovery or settlement. Any recovery against such 

third person in excess of the compensation theretofore paid 

by the employer shall be paid forthwith to the employe, his 

personal representative, his estate or his dependents, and 

shall be treated as an advance payment by the employer on 

account of any future instalments of compensation.

77 P.S. § 671 (emphasis added). “Moreover, a determination of whether an employer 

or its insurer is entitled to subrogation falls within the exclusive jurisdiction of the 

[WC] authorities. Common pleas courts lack jurisdiction to adjudicate the right of 

 

4

Liberty Mutual petitioned to intervene and join McGregor Industries, Inc. in the Motion.
5

subrogation.” Stout v. Workers’ Comp. Appeal Bd. (Pennsbury Excavating, Inc.), 948 

A.2d 926, 931 (Pa. Cmwlth. 2008) (citation omitted; emphasis added). 

Because the subrogation issue was within the WCJ’s exclusive 

jurisdiction, the WCJ’s order directing the Prothonotary to release the funds to 

Employer was harmless error,5especially here where Liberty Mutual had already 

filed a motion with the trial court for release of the funds based on the WCJ’s 

decision.

6

 Accordingly, the Board did not err in affirming the WCJ’s decision 

granting Employer’s Offset Petition.

___________________________

ANNE E. COVEY, Judge

Judge Cosgrove dissents.

 

5

“[H]armless error is a technique of appellate review designed to advance judicial economy 

by obviating the necessity for a retrial where the appellate court is convinced that a trial error was 

harmless beyond a reasonable doubt.” Commonwealth v. Noel, 53 A.3d 848, 864 (Pa. Super. 2012) 

(quoting Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012)).

6

The WCJ issued her order on July 17, 2015. Thereafter, on or about August 15, 2015, 

Liberty Mutual filed a Motion to Release Funds with the trial court, clearly recognizing the trial 

court’s jurisdiction in this matter. By September 16, 2015 order, the trial court, acknowledging the 

WCJ’s exclusive jurisdiction, denied the motion “without prejudice” stating: “[T]he said motion 

may be refiled upon exhaustion of any and all appeals of the July 30, 2015 [WCJ decision].” Trial 

Ct. September 16, 2015 Order. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason Lewis, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Fastrack Construction, Inc.), : No. 416 C.D. 2016

Respondent :

O R D E R

AND NOW, this 19th day of December, 2016, the Workers’ 

Compensation Appeal Board’s March 4, 2016 order is affirmed.

___________________________

ANNE E. COVEY, Judge