IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Seymour Jeck, :

Petitioner :

 :

v. : No. 420 C.D. 2020 

 : Submitted: October 23, 2020 

Workers’ Compensation Appeal :

Board (SRIG Inc.), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge1

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: May 14, 2021

Seymour Jeck (Claimant) petitions for review of an Order of the Workers’ 

Compensation Appeal Board (Board) affirming a Workers’ Compensation Judge’s 

(WCJ) August 28, 2019 Decision (Decision) denying Claimant’s Petition to Review 

Compensation Benefits/Compensation Benefit Offset (Review Petition) and related 

Petition for Penalties (Penalty Petition). The Petitions are based on Whitmoyer v. 

Workers’ Compensation Appeal Board (Mountain Country Meats), 186 A.3d 947 

(Pa. 2018) (Whitmoyer), which held that future payments of medical benefits are not 

subject to subrogation under Section 319 of the Workers’ Compensation Act (Act).

2

 

1 This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson 

became President Judge.

2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 671.
2

The Board affirmed the WCJ’s determination that Whitmoyer does not apply to the

September 26, 2014 Third-Party Settlement Agreement (TPSA) between Claimant 

and SRIG Inc. (Employer), reasoning that Employer had expressly retained its right 

to subrogation for the payment of ongoing medical expenses. By finding Whitmoyer

inapplicable to the TPSA, the WCJ’s Decision approved Employer’s taking of 

subrogation credit against Claimant’s medical benefits after June 19, 2018.

On appeal, Claimant contends that, under Whitmoyer, Employer is no longer 

permitted to subrogate future medical expenses against third-party settlements and 

asks for penalties against Employer. Consistent with recent decisions of this Court

in Beaver Valley Slag, Inc. v. Workers’ Compensation Appeal Board (Marchionda), 

___ A.3d ___ (Pa. Cmwlth., Nos. 867 and 901 C.D. 2020, March 10, 2021), and

Todd v. Workers’ Compensation Appeal Board (Fastrack Construction Inc.) (Pa. 

Cmwlth., No. 505 C.D. 2020, filed March 23, 2021),3 we find that the parties’ 

deviation from the boilerplate language in the Department of Labor and Industry 

(Department), Bureau of Workers’ Compensation’s LIBC-380 form did not grant 

Employer subrogation rights to which it was not already entitled and that Claimant 

properly raised this issue. We therefore vacate the Board’s Order to the extent that 

it determined that Whitmoyer does not apply to the TPSA and permitted Employer 

to continue taking its subrogation credit and we remand the matter for further 

proceedings. We affirm the denial of Claimant’s Penalty Petition because it was 

unclear how, if at all, Whitmoyer would apply to third-party settlement agreements 

executed prior to that decision. 

3 Pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and 

Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a), an 

unreported opinion of this Court, while not binding, may be cited for its persuasive value.
3

I. Background

In December of 2012, Claimant was injured in a motor vehicle accident during 

the course and scope of his employment. (WCJ Decision, Finding of Fact (FOF) ¶

2.) Employer issued a Notice of Compensation Payable (NCP), recognizing 

Claimant’s injury as a concussion and cervical and lumbar sprains, (Board Opinion 

(Op.) at 1), and began paying temporary total disability benefits, (FOF ¶ 2). In 2016, 

a WCJ expanded the description of Claimant’s injury “to include post-concussional 

syndrome, post-traumatic vision disorder, vestibular disorder, cognitive loss and 

depression, cervical radiculopathy, cervical myositis with strain and sprain, occipital 

headaches, and aggravation of lumbar radiculopathy and left displaced femoral neck 

fracture and total left hip arthroplasty.” (Board Op. at 1.) 

Following his receipt of a third-party recovery in the amount of $400,000,

Claimant executed the TPSA on September 26, 2014. (Reproduced Record (R.R.) 

at 10a-11a.) Pursuant to Section 121.18(a) of the Department’s Regulations,4the 

parties utilized a Department form, LIBC-380, to memorialize the terms of the 

TPSA, which in part calculated the distribution of proceeds from Claimant’s thirdparty recovery “[i]n accordance with [S]ection 319 of the [Act].” (Id. at 11a (citing 

77 P.S. § 671).) Employer’s accrued workers’ compensation (WC) lien for 

previously paid indemnity and medical benefits totaled $182,883. (Id.) This amount 

was reduced to $105,606 after deduction of Employer’s proportionate share of 

litigation expenses incurred in obtaining the third-party recovery. (Id.) Claimant’s 

balance of recovery, after deduction of Employer’s accrued lien, totaled $217,117. 

(Id.) This sum represented the amount of Employer’s accrued subrogation interest. 

4 34 Pa. Code § 121.18(a) (stating that a LIBC-380 “shall be executed” “[i]f an employee 

obtains a third-party recovery under [S]ection 319 of the [A]ct”). 
4

(Id.) Going forward, Employer was responsible for 42% of Claimant’s “future 

weekly benefits and medical expenses[,]” until the $217,117 subrogation interest 

was exhausted. (Id.)

In addition, in the section of the LIBC-380 titled “Further Matters Agreed 

Upon,” the TPSA provides that Employer’s insurer

agrees to accept $95,000, in lieu of the [$105,606] stated in box [no.] 7 

[(Employer’s net lien)], in full satisfaction of its lien to date. 

[Employer’s insurer] will exercise a future credit as outlined in [box 

nos.] 8 & 9. 

(Id.) Box no. 8 includes Employer’s reimbursement rate on future compensation 

liability – 42%. (Id.) Box no. 9 states that “Employer/Insurer is responsible for 42% 

[] of any future weekly benefits and medical expenses to satisfy its obligation to 

reimburse its pro rata share of [Claimant’s] fees and expenses until the subrogation 

interest is exhausted: $217,117 []. Thereafter, Employer/Insurer is responsible for 

100% of any compensation liability.” (Id.) Thus, according to the language in the 

“Further Matters Agreed Upon” section, Claimant satisfied Employer’s $105,606 

accrued WC lien upon payment of $95,000. In exchange for waiving its right to 

immediate payment of the remaining balance of $10,606, Employer retained its right 

to subrogate Claimant’s future benefits and medical expenses until the balance of 

recovery – $217,117 – was exhausted.

Several years later, in February of 2018, the parties executed a compromise 

and release (C & R) agreement, which a WCJ approved. (Id. at 27a-37a.) The C & R

agreement resolved all issues related to Claimant’s receipt of indemnity benefits by 

means of a $60,000 lump sum payment, the proceeds of which would be added to 

the total amount of Employer’s accrued WC lien. (Id. at 33a.) Employer 

“remain[ed] responsible for the payment of past and future . . . medical benefits[,]” 
5

and expressly “retain[ed] all rights of subrogation with respect to any recovery made 

by [Claimant] in any third[-]party action stemming from the work injury.” (Id.) 

Shortly thereafter, on June 19, 2018, our Supreme Court decided Whitmoyer, 

wherein it ruled that an employer’s right to subrogation under Section 319 of the 

Act5for payment of “future instal[l]ments of compensation” does not include a 

claimant’s future medical expenses. Whitmoyer, 186 A.3d at 949. Thus, under 

Whitmoyer, an employer could no longer assert its subrogation interest, the amount 

of the third-party recovery remaining after its net accrued lien had been reimbursed,

against a claimant’s future medical expenses thereby requiring the employer to pay 

the full amount of those expenses.

In response to Whitmoyer, on December 6, 2018, Claimant filed the Review 

Petition, requesting that the WCJ review the TPSA and stop Employer from 

continuing to take a future subrogation credit against Claimant’s ongoing medical 

benefits. (R.R. at 1a.) In his Review Petition, Claimant argued that, pursuant to 

Whitmoyer, Employer’s “[WC] insur[er] should be paying 100% of [] Claimant’s 

ongoing medical benefits” and that the WCJ should institute that change as of June 

19, 2018. (Id.) In his Penalty Petition, Claimant requested “penalties at the rate of 

. . . 50%[] on all past due medical bills” given Employer’s “fail[ure] to comply with 

5 Section 319 of the Act states:

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[e]

. . . against such third party to the extent of the compensation payable under 

this article by the employer . . . . Any recovery against such a third person in 

excess of the compensation theretofore paid by the employer shall be paid forthwith 

to the employe[e] . . . and shall be treated as an advance payment by the employer 

on account of any future instal[l]ments of compensation.

77 P.S. § 671 (emphasis added).
6

. . . [Whitmoyer] and pay 100% of [] Claimant’s ongoing work[-]related medical 

expenses.” (Id. at 5a.)

The WCJ found Whitmoyer inapplicable to the TPSA. (FOF ¶ 12.) The WCJ 

reasoned that, unlike in Whitmoyer, here Claimant did not “raise[] or preserve[] the 

issue that [E]mployer was not entitled to the lien against future medical benefits, 

either at the time the [TPSA] was entered into or during subsequent litigation.” (Id.) 

Instead, “Claimant raised the issue and filed his [Review and Penalty Petitions] only 

after the Supreme Court decided Whitmoyer.” (Id.) In addition, the WCJ found it 

“significant that [Employer] waived part of its subrogation lien with the 

understanding that it would be entitled to a future lien against medical benefits; the 

waiver constitutes separate consideration beyond the obligation of [Employer] with 

respect to the [TPSA].” (Id.) Last, the WCJ noted that Whitmoyer is a case of 

statutory interpretation and not a case holding Section 319 of the Act 

unconstitutional, and the decision is silent about whether it applies retroactively. 

(Id.) 

Claimant appealed, and the Board affirmed, holding that Whitmoyer “should 

not invalidate the otherwise valid prior [TPSA].” (Board Op. at 5.) Specifically, the 

Board reasoned that “[t]his case is not controlled by Whitmoyer because here[] there 

was an agreement that the future credit against medical expenses would be taken in 

return for a reduction in the immediate lien[,]” whereas in Whitmoyer, “the parties, 

not including the claimant’s counsel, executed the LIBC-380 boilerplate form and

there was no meeting of the minds as to a credit for medical expenses . . . .” (Id. at 

4.) The Board stated that “[t]he fundamental rule in construing a contract is to 

ascertain and give effect to the intention of the parties,” and here “Claimant 

specifically bargained for the credit which he now says is not due and owing.” (Id. 
7

at 5.) In addition, the Board stated that Claimant’s claim “was not ‘in the pipeline’ 

at the time of the Supreme Court’s determination [in Whitmoyer].” (Id. at 4.) 

Claimant petitioned for this Court to review the Board’s Order.6 

II. Parties’ Arguments

Claimant argues that the Board erred because, pursuant to Whitmoyer, 

“employers are no longer permitted under the [Act] to take subrogation 

reimbursement for future medical expenses against third-party settlements[,]” 

including those executed prior to June 19, 2018, the date Whitmoyer was decided. 

(Claimant’s Brief (Br.) at 12 (emphasis omitted).) Claimant contends that, in 

distinguishing Whitmoyer from this case, the WCJ misstated certain facts about 

Whitmoyer. (Id. at 10, 15.) Moreover, Claimant takes the position that the “Supreme 

Court’s interpretation of statutory terms takes priority over any features, including 

linguistic features, of an individual third-party settlement agreement.” (Id. at 10.) 

Specifically, Claimant points out that in Whitmoyer, the Supreme Court stated that 

“because we granted allocatur to determine the meaning of a statutory term, the 

parties’ arguments that are specific to the TPSA . . . , rather than to the language of 

the statute, are unavailing.” (Claimant’s Br. at 15 (quoting Whitmoyer, 186 A.3d at 

957) (emphasis omitted).) Claimant further maintains that principles of contract law 

should not override Whitmoyer’s change in the law because “settlements made under 

the [Act] are unique in that they are tightly managed[,] and compromise and releases 

require a judge to determine that a claimant understands the deal and to approve it.” 

(Id. at 16.) According to Claimant, WC settlements “are not simply the products of 

6 This Court’s “review is limited to determining whether constitutional rights were violated, 

whether the adjudication is in accordance with the law[,] or whether necessary findings of fact are 

supported by substantial evidence.” City of Philadelphia v. Workers’ Comp. Appeal Bd. 

(Sherlock), 934 A.2d 156, 159 n.5 (Pa. Cmwlth. 2007).
8

contract law.” (Id.) Last, Claimant argues that Whitmoyer announced a new rule of 

law and that “it is well settled that retroactive application of a new rule of law is a 

matter of judicial discretion.” (Id. (citing Dist. Off. of Disciplinary Counsel v. 

Surrick, 749 A.2d 441 (Pa. 2000).)) 

Employer responds that Whitmoyer is readily distinguishable from the present 

case. (Employer’s Br. at 10.) Specifically, Employer points out that, in Whitmoyer, 

“neither the [c]laimant nor counsel agreed to sign the third-party settlement 

agreement and . . . counsel for [the claimant] made clear his position that the lien 

would not apply to future medical[] [benefits.]” (Id.) Here, in contrast, Claimant 

“never took a position that medical[] [benefits] were not subject to the subrogation 

lien.” (Id. at 11.) In fact, stresses Employer, “the [TPSA] providing for a lien against 

future medical obligations was signed and additional language reflecting Claimant’s 

understanding of the ongoing entitlement of the [insurance] carrier to exert its 

subrogation lien was incorporated as part of the [TPSA].” (Id. at 11-12 (emphasis 

omitted).)

In addition, Employer contends that the TPSA in this case is unique because,

in the section of the LIBC-380 form titled “Further Matters Agreed Upon,” 

“[Employer] waived its entitlement to $10,606 of its net lien” and, in consideration 

thereof, “Claimant agreed to [Employer’s] continued right to exercise subrogation 

against future medical[] [benefits] incurred by Claimant.” (Id. at 12.) Employer 

claims that its agreement to forgo $10,606 of its net lien “was separate consideration 

above and beyond [its] obligation [] with respect to the [TPSA]” and its concession

enabled Claimant to settle his third-party case. (Id. (emphasis omitted).)

Employer also argues that the doctrines of technical res judicata and laches

apply and that, pursuant to those doctrines, Claimant’s appeal should be dismissed. 
9

(Id. at 12-13.) Employer contends that, though Claimant had the opportunity in other 

proceedings before a WCJ, he failed to raise the issue “that [Employer] was not 

entitled to the lien against future medical [benefits] . . . ,” and, as such, has waived 

those claims under technical res judicata. (Id. at 15.) Moreover, Employer submits 

that laches applies here because the TPSA was executed in 2014 and “Claimant 

waited [four] years to challenge the application of the subrogation lien to payment 

of medical benefits incurred by Claimant.” (Id. at 16.) According to Employer, it 

would be prejudiced if compelled to disgorge the credit it took “after [four] years of 

asserting its agreed to subrogation lien against future medical [benefits].” (Id. at 16-

17.)

Last, Employer maintains that Whitmoyer does not retroactively apply based 

on Blackwell v. State Ethics Commission, 589 A.2d 1094 (Pa. 1991) (Blackwell II). 

(Id. at 19.)7 According to Employer, under Blackwell II, Whitmoyer’s applicability 

to the TPSA turns on whether Claimant raised and preserved a challenge to 

Employer’s subrogation right to future medical benefits under Section 319 of the 

Act. (Id.) Because “there was no pending litigation or appeal challenging the 

applicability of Section 319 to the lien against medical [benefits] at the time 

Whitmoyer was decided[,]” Employer argues that Whitmoyer does not apply 

retroactively to the TPSA here. (Id.)

7 Although Employer is arguing against retroactive application of Whitmoyer under the 

Blackwell II standard, it provided the citation for the initial decision, Blackwell v. State Ethics 

Commission, 567 A.2d 830 (Pa. 1989) (Blackwell I). 
10

III. Discussion

A. Whether Claimant is Entitled to Application of Whitmoyer.

As a threshold matter, we first address Employer’s contentions that Claimant 

is not entitled to Whitmoyer’s change to the prevailing interpretation of Section 319 

of the Act because Claimant did not challenge Employer’s subrogation right to future 

medical benefits prior to that decision. Only if Claimant is entitled to the change in 

the law must we address whether Whitmoyer applies to the TPSA. First, it is 

important to clarify that Claimant’s Review Petition did not request that the WCJ

apply Whitmoyer retroactively to the date the TPSA was executed, September 26, 

2014. Rather, Claimant seeks relief from his obligation to pay any future medical 

benefits as of the date Whitmoyer was decided, June 19, 2018. (R.R. at 1a.) Before 

this Court, Employer’s assertion regarding technical res judicata8and its argument, 

based on Blackwell II,

9

that Whitmoyer does not apply retroactively, seem to merge 

8 Pursuant to the doctrine of technical res judicata, “when a final judgment on the merits 

exists, a future suit between the parties on the same cause of action is precluded.” Weney v. 

Workers’ Comp. Appeal Bd. (Mac Sprinkler Sys., Inc.), 960 A.2d 949, 954 (Pa. Cmwlth. 2008) 

(quoting Henion v. Workers’ Comp. Appeal Bd. (Firpo & Sons, Inc.), 776 A.2d 362, 365 (Pa. 

Cmwlth. 2001)). In order for technical res judicata to apply, there must be: “(1) identity of the 

thing being sued upon or for; (2) identity of the cause of action; (3) identity of the persons and 

parties to the action; and (4) identity of the quality or capacity of the parties suing or sued.” Id. 

(quoting Henion, 776 A.2d at 366). Technical res judicata may be applied to bar “claims that were 

actually litigated as well as those matters that should have been litigated.” Id. (emphasis in 

original). 

9

In Blackwell II, our Supreme Court resolved the question of whether its earlier decision, 

Blackwell I, which announced a new rule of law, applied retroactively by considering three factors 

set forth by the United States Supreme Court: “(1) the purpose to be served by the new rule, (2) the 

extent of the reliance on the old rule, and (3) the effect on the administration of justice by the 

retroactive application of the new rule.” Blackwell II, 589 A.2d at 1099. The Blackwell II Court 

held that its earlier decision applied retroactively and, discussing the third factor, stated that 

retroactive application of the new rule “has a limited effect on the operations of the various 

agencies, boards[,] and commissions in that our retroactive application is restricted to the instant 

case and all cases pending at the time of our [earlier] decision . . . in which the [issue in dispute] 

was properly raised and preserved.” Id. at 1099-1100. 
11

into the singular contention that because Claimant did not raise and preserve a 

challenge to Employer’s subrogation right to future medical benefits under Section 

319 of the Act prior to the decision in Whitmoyer, Claimant is not entitled to the 

benefit of the change in the law. Our recent precedent holds otherwise.

In Beaver Valley, this Court held that the claimant, who had sought review of 

the employer’s subrogation credit of the claimant’s third-party recovery by filing a 

review petition two months after Whitmoyer was decided, “preserved the issue of 

Whitmoyer’s application to the [third-party settlement agreement] by raising it at the 

earliest point.” Beaver Valley, __ A.3d at __, slip op. at 11. As in this case, the 

employer in Beaver Valley argued that because the third-party settlement agreement 

was final, and no litigation or appeals were pending in the matter at the time 

Whitmoyer was decided, the claimant was not entitled to the benefit of the change in 

the law. Id. at __, slip op. at 5. We stated, however, that “because [the c]laimant 

[was] still receiving disability compensation,” the third-party settlement agreement 

“was not a final resolution of the claim” and thus Section 413(a) of the Act10

permitted the WCJ to review and modify or set aside the third-party settlement 

agreement upon petition filed by either party. Id. at __, slip op. at 11.

Unlike here, the claimant in Beaver Valley argued that “granting a review 

petition under Section 413(a) of the Act requires that correction of the erroneous 

10 Section 413(a) provides:

A [WCJ] may, at any time, review and modify or set aside a[n] [NCP] and an 

original or supplemental agreement or upon petition filed by either party with 

the [D]epartment, or in the course of the proceedings under any petition pending 

before such [WCJ], if it be proved that such [NCP] or agreement was in any material 

respect incorrect.

77 P.S. § 771 (emphasis added).
12

agreement be effective as of the date of the error’s creation.” Id. at __, slip op. at 6. 

While this Court in Beaver Valley disagreed that Whitmoyer “applied retroactively 

to the date of the [third-party settlement agreement’s] origination[,]” we held that,

because our 

Supreme Court interpreted that portion of Section 319 of the Act for the 

first time in Whitmoyer, such that the [third-party settlement 

agreement’s] terms were not known to be materially incorrect until 

Whitmoyer was decided, and [the claimant] preserved the issue of 

Whitmoyer’s application to the [third-party settlement agreement] by 

raising it at the earliest point, [the claimant] is entitled to the benefit of 

the ruling as of the date Whitmoyer was decided.

Id. at __, slip op. at 11. Here, Claimant filed his Review Petition on December 6, 

2018, which is shortly after Whitmoyer was decided on June 19, 2018. Consistent 

with our decision in Beaver Valley, Claimant is entitled to the benefit of the change 

in the law created by Whitmoyer, and he did not waive his challenge to Employer’s 

subrogation right to future medical benefits under Section 319 of the Act simply 

because there was no appeal “in the pipeline” at the time Whitmoyer was decided. 

(Board Op. at 4.) Moreover, we are not persuaded by Employer’s technical res 

judicata argument because it is premised on the notion that Claimant should have

challenged Employer’s entitlement to subrogate when the TPSA was executed or 

during prior WC litigation between the parties. However, in light of our decision in 

Beaver Valley, we cannot say that Claimant had to have challenged Employer’s right 

to subrogate future medical benefits before Whitmoyer was decided, when the 

relevant terms of the TPSA “were not known to be materially incorrect” before then.

Beaver Valley, __ A.3d at __, slip op. at 11. 

Moreover, we do not find the doctrine of laches applicable to the instant 

matter. Having filed his Review Petition shortly after Whitmoyer was decided, 
13

Claimant in this case did not “greatly delay[] enforcing [his] rights.” (Employer’s 

Br. at 15.) Although Employer asserts “[i]t would cause great prejudice to compel 

[Employer] to pay back” Employer’s subrogation credit taken against Claimant’s 

medical benefits “after [four] years of asserting its . . . subrogation lien . . . ,” (id. at 

16-17), Employer mischaracterizes Claimant’s position. Claimant is not seeking 

retroactive application of Whitmoyer to September 26, 2014, and, therefore, 

Employer is not being asked to pay back four years of the credit it has taken pursuant 

to the TPSA. 

B. Whether Whitmoyer Applies to the TPSA Here.

Claimant argues that this case is indistinguishable from Whitmoyer and thus 

the terms of the TPSA must be set aside to the extent they conflict with Whitmoyer’s

holding that Section 319 of the Act does not permit subrogation of future medical 

expenses. In contrast, Employer contends that Whitmoyer is distinguishable 

because, unlike in Whitmoyer, the TPSA executed here includes language beyond 

the boilerplate terms of the LIBC-380 form and specifies that Employer gave up part 

of its accrued lien in return for a right to subrogate Claimant’s future medical 

benefits. 

In Whitmoyer, the Supreme Court observed that Section 319 of the Act 

“addresses two distinct scenarios.” Whitmoyer, 186 A.3d at 954. In the first, an 

employer has a claim against a claimant’s third-party recovery for indemnity 

benefits and medical expenses it paid “to the date of the third-party recovery . . . .” 

Id. (internal citations omitted). This claim constitutes the employer’s accrued lien 

and is payable immediately upon recovery. Id. “The second scenario relates to the 

disposition of the net settlement proceeds” – the amount of the claimant’s recovery 

remaining after deducting his employer’s accrued lien. Id. This “‘excess’ recovery” 
14

is to be paid to the claimant “as ‘an advance payment by the employer on account of 

future instal[l]ments of compensation,’” which the Supreme Court concluded in 

Whitmoyer would be limited to the payment of indemnity benefits. Id. at 956 

(quoting 77 P.S. § 671). Therefore, an employer whose accrued lien is satisfied at 

the time of a third-party settlement may not seek reimbursement for future medical 

expenses from an employee’s balance of recovery. Id. at 957.

This Court recently addressed the issue of Whitmoyer’s applicability to thirdparty settlement agreements executed prior to the date of that decision in Hoss v. 

Workers’ Compensation Appeal Board (Select Staffing) (Pa. Cmwlth., No. 241 C.D. 

2020, filed February 25, 2021). In Hoss, the claimant argued that Whitmoyer’s

“interpretation of Section 319 overrides the terms of a third-party settlement 

agreement and that he and all other similarly[]situated claimants should receive 

relief upon filing a review petition to stop the unlawful taking of credit against 

ongoing medical benefits.” Id., slip op. at 7. The parties’ third-party settlement 

agreement listed a third-party recovery of $187,500, expenses of recovery of 

$85,925.65, and an accrued WC lien of $472,688.47. Id., slip op. at 3. Furthermore, 

terms written into the section of the third-party settlement agreement titled “Further 

Matters Agreed Upon” provided that “[the e]mployer’s insurer agreed to 

reimbursement of the [WC] lien at the discounted rate of $50[,]878.17, in exchange 

for a credit for future medical benefits of [the claimant] that may have come due in 

the future in the amount of $50,787.17, the sum [the claimant] received from the 

third[-]party claim.” Id. (internal quotations omitted). The parties subsequently 

executed a separate agreement regarding the claimant’s third-party recovery the 

terms of which were not materially different from the terms of their third-party 

settlement agreement. The Court “conclude[d] that Whitmoyer d[id] not apply to 
15

prohibit [the e]mployer from taking the agreed-upon credit for [the c]laimant’s 

ongoing medical expenses” because “there was no excess recovery owed to [the 

c]laimant[,]” as the employer’s accrued subrogation lien “well exceeded [the 

c]laimant’s third-party recovery.” Id., slip op. at 8-9. We elaborated that 

while [the] [e]mployer is taking a credit for ongoing medical expenses, 

it is not against any “excess” recovery paid to [the c]laimant in 

contravention of Section 319 as interpreted by Whitmoyer. Rather, [the 

e]mployer is taking the credit against the funds from the third-party 

settlement that, but for the terms of the settlement agreements [the 

c]laimant now seeks to invalidate, [the e]mployer was initially entitled 

to receive. We do not read Whitmoyer to prohibit such an agreement, 

whereby the payment to an employer for its accrued lien is reduced in 

exchange for a credit toward future medical benefits in the amount of 

the reduction.

Id. at 5.

Subsequently, in Beaver Valley, this Court held that Whitmoyer applied to the 

parties’ third-party settlement agreement. The claimant in Beaver Valley sustained 

a severe injury during the course of his employment, and the employer accepted the 

work injury through an NCP. Beaver Valley, __ A.3d at __, slip op. at 2. The 

claimant was adjudicated incapacitated, and his guardian received a third-party 

recovery in the amount of $10,450,000 on his behalf. Id. Of that recovery, 

$1,099,600 was allocated to the employer to satisfy its accrued WC lien, $3,519,136 

reflected the attorney’s fees and other costs associated with obtaining the third-party 

recovery, and $8,794,377 represented the balance of recovery. Id. at ___, slip op. at 

2-3. Pursuant to the third-party settlement agreement, the employer was responsible 

for 33.7% of the claimant’s future WC compensation benefits and medical expenses

“in order to reimburse its pro rata share of [the c]laimant’s fees and expenses until 

exhaustion of [the employer’s] subrogation interest in the amount of $8,794,337.” 

Id. at___, slip op. at 3. We held that “[b]ecause under Whitmoyer, [the e]mployer is 
16

not permitted to seek reimbursement for future medical expenses from the 

employee’s balance of recovery, the WCJ was permitted to set aside that portion of 

the [third-party settlement agreement].” Id. at___, slip op. at 6. 

Most recently, in Todd, a decision similar to the instant matter, the parties 

executed a compromise and release agreement, which resolved all issues regarding 

the claimant’s indemnity benefits through a $195,000 payment. The employer 

agreed to pay for the claimant’s ongoing medical treatment and retained its “full 

subrogation rights” for, inter alia, “all ongoing medical expenses.” Todd, slip op. at 

2. Approximately two months after executing the compromise and release, the 

parties executed a third-party settlement agreement. Like the TPSA in the instant 

matter, the third-party settlement agreement in Todd included terms beyond the 

boilerplate terms of the LIBC-380 form; in Todd, the employer agreed to waive its 

right to $52,517.20 of its accrued subrogation lien in exchange for the right to a 

credit in this amount against the claimant’s future medical expenses. Id., slip op. at 

5. We held that Whitmoyer applied because the provisions contained in the parties’

compromise and release and third-party settlement agreements “did not grant [the 

e]mployer subrogation rights to which it was not already entitled.” Id., slip op. at 9.

However, remand to the WCJ was necessary to determine whether the employer’s 

accrued subrogation lien had been satisfied. Id., slip op. at 10-11. Our disposition 

in Todd was consistent with our interpretation of Whitmoyer in Hoss, which is that, 

while Whitmoyer prevents an employer from taking a credit for ongoing medical 

expenses against a claimant’s excess recovery, Whitmoyer does not prevent an 

employer from taking a credit for ongoing medical expenses in order to satisfy the 

balance of its accrued subrogation lien. 
17

In this case, the proceeds of Claimant’s $400,000 third-party recovery 

exceeded Employer’s accrued lien of $182,883, leaving Claimant with a balance of 

recovery in the amount of $217,117. (R.R. at 11a.) Prior to Whitmoyer, Employer 

had the unquestioned right to a credit against its payment of Claimant’s future 

medical bills up to the amount of this balance of recovery. However, after

Whitmoyer, this right no longer exists. The Board based its conclusion that 

Whitmoyer does not control this case in substantial part on the terms set forth in the 

section of the LIBC-380 form titled “Further Matters Agreed Upon,” in which the 

parties memorialized their agreement “that the future credit against medical 

expenses would be taken [by Employer] in return for a reduction in the immediate 

lien.” (Board Op. at 4.) Because the parties deviated from the boilerplate language 

in the LIBC-380 form, the Board determined that principles of general contract law 

compelled the conclusion that Employer’s future subrogation rights were not 

extinguished by Whitmoyer, as “Claimant specifically bargained for the credit which 

he now says in not due and owing.” (Id. at 5.) 

Here, however, as in Todd, the parties’ deviation from the boilerplate 

language in the LIBC-380 form did not grant Employer subrogation rights to which 

it was not already entitled. It is axiomatic that an employer’s right to subrogation 

under Section 319 of the Act is “‘statutorily absolute and can be abrogated only by 

choice.’” Thompson v. Workers’ Comp. Appeal Bd. (USF&G Co. & Craig Welding 

Equip. Rental), 781 A.2d 1146, 1152 (Pa. 2001) (quoting Winfree v. Phila. Elec. Co., 

554 A.2d 485, 487 (Pa. 1989)). Where a claimant’s work injury is due to the 

negligent conduct of a third party, “there is a clear, justifiable right to subrogation 

under Section 319 of the Act.” Dale Mfg. Co. v. Bressi, 421 A.2d 653, 654 (Pa. 

1980). 
18

Though Employer waived its right to immediately collect a portion of its 

accrued lien ($10,606), it expressly reserved a right to subrogate Claimant’s future 

benefits and medical expenses until the balance of recovery – $217,117 – was 

exhausted, which, practically speaking, would operate to reimburse Employer for 

the amount of the accrued lien that it agreed to waive.

11

 Thus, Employer’s right to 

recover the entirety of its accrued lien was not terminated by the TPSA but was 

merely deferred. Critically, Employer’s right to subrogate Claimant’s future medical 

expenses originated, not with the terms set forth in the section of the LIBC-380 form 

titled “Further Matters Agreed Upon,” but instead with the boilerplate terms 

contained in that form, which the parties were required to utilize under Section 

218.19(a) of the Department’s Regulations. Based on the formula contained in the 

LIBC-380, Employer was responsible for 42% of Claimant’s “future . . . medical 

expenses” until Employer’s subrogation interest in the amount of $217,117 was 

exhausted. (R.R. at 11a.) Claimant merely consented to Employer’s retention of its 

existing subrogation rights, which at that time included future medical expenses. 

Accordingly, the additional terms set forth in the “Further Matters Agreed Upon” 

section of the TPSA do not render this case distinguishable from Whitmoyer. 

We thus conclude that Employer is not entitled to subrogate Claimant’s future 

medical expenses up to the excess recovery but can only recover ongoing medical 

expenses in order to satisfy the balance of its accrued subrogation lien. However, 

on this record, we are unable to determine whether or not Employer has been fully 

reimbursed its accrued subrogation lien. Before the WCJ, Employer argued that “[it] 

should at least be able to offset future medical against the amount that . . . [Employer] 

waived on [its] accrued lien in the underlying third-party case.” (C.R. Item 14, 

11 In essence, the TPSA enabled Claimant to keep an additional $10,606 because Claimant 

had to pay Employer $95,000 rather than $105,606. 
19

Hearing Transcript at 6.) We agree.12 However, there are no findings as to the 

amounts that Employer has recovered through subrogation to date. We therefore 

remand to the WCJ to make this determination.

C. Penalty Petition.

Claimant requests that this Court remand this matter to the WCJ for 

calculation of a penalty, which Claimant argues is appropriate because “Employer 

continued to take subrogation against [] Claimant’s medical benefits after the 

issuance of Whitmoyer” in violation of the Act. (Claimant’s Br. at 18.) However, 

while we hold that Whitmoyer applies to the TPSA, we discern no error in the denial 

of Claimant’s Penalty Petition.13 Prior to Whitmoyer, this Court interpreted Section 

319 of the Act as permitting employers to take a credit against medical expenses. 

See Zacour v. Workers’ Comp. Appeal Bd. (Mark Ann Indus.), 824 A.2d 336, 340

(Pa. Cmwlth. 2003). After Whitmoyer changed the prevailing interpretation of 

Section 319 of the Act, there was justifiable confusion regarding whether Whitmoyer 

would apply to third-party settlement agreements executed prior to that decision. 

Considering that ambiguity, and particularly where, as here, the TPSA included 

additional language, we discern no error in denying the Penalty Petition. 

12 We note that the $60,000 lump sum indemnity payment Employer paid under the terms 

of the C&R was also “to be included in the amount of [Employer’s WC] lien.” (R.R. at 33a.)

13 The WCJ expressly denied Claimant’s Penalty Petition. While the Board did not 

specifically address that aspect of Claimant’s appeal, its affirmation of the Penalty Petition’s denial 

flowed from its affirmation of the denial of Claimant’s Review Petition. Although this Court’s 

reason for affirming the Penalty Petition’s denial is different than the Board’s, “we may affirm an 

agency’s decision ‘on other grounds where grounds for affirmance exist.’” Turner v. 

Unemployment Comp. Bd. of Rev., 899 A.2d 381, 385 (Pa. Cmwlth. 2006) (quoting Kutnyak v. 

Dep’t of Corr., 748 A.2d 1275, 1279 n.9 (Pa. Cmwlth. 2000)). 
20

IV. Conclusion

For the foregoing reasons, the Board properly affirmed the WCJ’s Decision 

that Employer did not violate the Act. However, with respect to Claimant’s Review 

Petition, we vacate the Board’s Order and remand this matter for the Board to further 

remand to the WCJ, who shall conduct additional proceedings as necessary to 

determine the extent to which Employer’s subrogation of Claimant’s future medical 

benefits represents a reimbursement of Employer’s accrued subrogation lien.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Seymour Jeck, :

Petitioner :

 :

v. : No. 420 C.D. 2020 

 : 

Workers’ Compensation Appeal :

Board (SRIG Inc.), :

Respondent :

O R D E R

NOW, May 14, 2021, in accordance with the foregoing Memorandum 

Opinion, the Order of the Workers’ Compensation Appeal Board, entered in the 

above-captioned matter, is AFFIRMED in part and VACATED in part. This matter 

is REMANDED for further proceedings consistent with the foregoing 

Memorandum Opinion. 

Jurisdiction relinquished.

_____________________________________

RENÉE COHN JUBELIRER, Judge