IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael DeHoratius, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Upper Darby Township), : No. 1901 C.D. 2016

Respondent : Submitted: May 5, 2017

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: August 8, 2017

Michael DeHoratius (Claimant) petitions this Court for review of the 

Workers’ Compensation (WC) Appeal Board’s (Board) November 8, 2016 order 

affirming the Workers’ Compensation Judge’s (WCJ) decision granting Upper Darby 

Township’s (Employer) Petition for Modification of WC Benefits (Modification 

Petition) and Petition for Suspension of WC Benefits (Suspension Petition), and 

directing Claimant to pay $5,137.83 from his third-party recovery in order to satisfy 

Employer’s subrogation lien. The sole issue before the Court is whether Employer is 

entitled to subrogation of Claimant’s third-party recovery. After review, we reverse

in part.

Claimant is employed as a patrol officer in Employer’s police 

department. On November 30, 2013, Claimant was injured as a result of a workrelated motor vehicle accident that occurred while Claimant was on duty and driving 

Employer’s police vehicle. Employer issued a Notice of Temporary Compensation 
2

Payable (NTCP), thereby accepting Claimant’s injury as compensable. The NTCP

converted to a Notice of Compensation Payable (NCP) by operation of law. Claimant 

returned to work on January 10, 2014 with no loss in earnings. Employer is selfinsured for Heart and Lung and WC benefits and has a separate account for each. For 

his period of disability, Claimant was paid benefits totaling $9,110.47 under what is 

commonly referred to as the Heart and Lung Act.

1

 Employer also paid WC 

indemnity benefits pursuant to the NCP. Claimant signed the WC indemnity checks 

and returned them to Employer as required by law. In addition, Employer paid 

medical benefits for Claimant’s work injury under the NCP.

As a result of the November 30, 2013 work injury, Claimant filed a 

claim against a third-party motor vehicle policy. Claimant also made a claim against 

Employer’s insurance policy for underinsured motorist benefits (UIM policy). 

Claimant settled these claims for $50,000.00. However, to obtain the settlement,

Claimant incurred $16,601.42 in attorney fees and $195.85 in associated costs. 

Therefore, Claimant’s net third-party recovery was $33,202.73.

On January 13, 2015, Employer filed its Modification and Suspension 

Petitions, wherein it alleged that Claimant had returned to work and Employer was 

seeking subrogation reimbursement from Claimant’s third-party recovery. The WCJ 

held hearings on February 2 and June 8, 2015. On September 22, 2015, the WCJ 

granted Employer’s Petitions and ordered Claimant to pay Employer $5,137.83 to 

satisfy Employer’s subrogation lien. Claimant appealed to the Board. On November 

8, 2016, the Board affirmed the WCJ’s decision. Claimant appealed to this Court.2

 

1 Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-38. 

2

“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). 
3

Initially, Section 1(a) of the Heart and Lung Act provides that a police 

officer injured in the performance of his duties and temporarily incapacitated from 

performing his duties by that injury, “shall be paid” his full rate of salary until the 

incapacity has ceased, as well as “[a]ll medical and hospital bills[] incurred in 

connection with any such injury[.]” 53 P.S. § 637(a) (emphasis added). Further, 

“any [WC benefits] received or collected by any such employe for such period[]

shall be turned over to the. . . township . . . .” Id. (emphasis added).

Employer does not dispute that it is not entitled to subrogation for the 

lost wages Claimant received under the Heart and Lung Act. However, Employer 

contends that, since it paid Claimant indemnity and medical benefits from its WC 

account, it is entitled to subrogation from Claimant’s third-party recovery for those 

benefits. Claimant argues that because he was entitled to Heart and Lung Act 

benefits, it is irrelevant that Employer chose to pay Claimant’s benefits from its WC 

account.3 We agree. 

This Court addressed a similar argument in Pennsylvania State Police v. 

Workers’ Compensation Appeal Board (Bushta), 149 A.3d 118 (Pa. Cmwlth. 2016), 

appeal granted, (Pa. No. 483 WAL 2016, filed April 18, 2017), 2017 WL 1397531,

wherein, the employer maintained that it was entitled to subrogation because a 

portion of the claimant’s benefits were paid out of WC. The Bushta Court held:

Although the NCP in the instant case stated that ‘[p]aid 

[s]alary continuation [was under the] Heart and Lung 

[Act,]’ NCP at 2, because the Heart and Lung Act requires

 

3

Employer rejoins that Claimant waived this issue by not raising it before the Board. 

However, in his appeal to the Board, Claimant expressly provided: “Finding 9(f) is a conclusion of 

law which we disagree with (see below).” Reproduced Record (R.R.) at 24a. Finding 9(f) states: 

“Employer is entitled to a subrogation recovery against Claimant’s third[-]party settlements.” R.R. 

at 20a. In his appeal to the Board, Claimant expounded: “[Employer] alleges that [it] paid medical 

bills from a [WC] account when [it] should have paid from their Heart and Lung [Act] account. . . .” 

R.R. at 24a. Based on the record, we hold that Claimant properly preserved this issue before the 

Board.
4

the payment of full salary and all medical expenses, see

Section 1 of the Heart and Lung Act, self-insured employers 

paying Heart and Lung Act benefits issue an NCP only to 

acknowledge the work injury. See Stermel [v. Workers’

Comp. Appeal Bd. (City of Phila.), 103 A.3d 876 (Pa. 

Cmwlth. 2014)]. Section 25(b) of Act 44[4]expressly states: 

‘The provisions of [Sections 1720 and 1722 of the Motor 

Vehicle Financial Responsibility Law (MVFRL),

5

] 75 

Pa.C.S. §§ 1720[,] 1722 are repealed insofar as they relate 

to [WC] payments or other benefits under the [WC] Act.’

[6]

Section 25(b) of Act 44 makes no distinction between 

wage loss or medical benefits. Here, because [the 

c]laimant was a public safety employee, his benefits fall 

under the Heart and Lung Act. Thus, pursuant to 

Section 1720 of the MVFRL, [the e]mployer is not 

entitled to subrogation from [the c]laimant’s third-party 

recovery. Consequently, we are constrained to hold that 

[the c]laimant’s recovery . . . is not subject to subrogation.

Bushta, 149 A.3d at 122-23 (emphasis added). Employer responds that because the 

NCP issued to Claimant did not reference the Heart and Lung Act and because 

Employer kept the salary payments (under Heart and Lung Act benefits) separate 

from medical benefits (under WC Act benefits), this case is distinguishable from both 

Stermel and Bushta. However, the Court in neither decision relied on the wording of 

the NCP to make its determination. In both cases, the employers were self-insured 

and argued that because they treated the medical payments as WC, they were entitled

to subrogation.

The Court in both decisions rejected this argument on the basis that the 

employers were going beyond the MVFRL by treating Heart and Lung Act benefits 

as WC benefits when the Heart and Lung Act specifically encompasses wages and 

medical benefits. It appears Employer is seeking to use its accounting method of 

 

4 Act of July 2, 1993, P.L. 190, No. 44.

5

75 Pa.C.S. §§ 1701-1799.7.

6

Section 1720 of the MVFRL prohibited a plaintiff from including as an element of 

damages WC or other benefits paid, which included Heart and Lung Act benefits. Section 1722 of 

the MVFRL did not allow Claimant to recover loss of wages covered by the Heart and Lung Act. 
5

separating the Heart and Lung benefits from the WC benefits as the basis to establish 

subrogation rights. However, the Heart and Lung Act expressly provides for wages 

and medical benefits, and, therefore, both are statutorily “require[d;]” thus,

Employer’s separate WC account does not entitle it to subrogation under the WC Act. 

Bushta, 149 A.3d at 122; see also 53 P.S. § 637(a). This fact is especially true here, 

where Employer required Claimant to endorse his WC checks to Employer. Contrary 

to Employer’s argument, Employer appears to be the party seeking double recovery 

by requesting subrogation of these same payments. Accordingly, we hold that 

Claimant’s third-party recovery is not subject to subrogation.

For all of the above reasons, the portion of the Board’s order directing 

Claimant to pay Employer $5,137.83 to satisfy Employer’s subrogation lien is 

reversed. The portion of the Board’s order granting Employer’s Petitions is affirmed. 

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael DeHoratius, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Upper Darby Township), : No. 1901 C.D. 2016

Respondent :

O R D E R

AND NOW, this 8

th day of August, 2017, the portion of the Workers’ 

Compensation (WC) Appeal Board’s (Board) November 8, 2016 order affirming the 

Workers’ Compensation Judge’s decision granting Upper Darby Township’s 

(Employer) Petition for Modification of WC Benefits and Petition for Suspension of 

WC Benefits is affirmed. The portion of the Board’s order directing Claimant to pay 

$5,137.83 from his third-party recovery in order to satisfy Employer’s subrogation 

lien is reversed.

___________________________

ANNE E. COVEY, Judge