IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sota Construction Services, Inc. : and Selective Insurance Company : of South Carolina, :

Petitioners :

:
v. :
: Workers’ Compensation Appeal : Board (Czarnecki, Zawilla d/b/a : Gorilla Construction, and Uninsured : Employer s Guarant y Fund), : No. 87 C.D. 2019

Respondents : Submitted: September 6, 2019

BEFORE: HONORABLE PATRICIA A. McCULLOUGH
, Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER
, Judge

OPINION BY JUDG E COVEY FILED: December 20, 2019

Sota Construction Services, Inc. (Sota) and Selective Insurance Company of South Carolina (collectively, Petitioners) petition this Court for review of the Workers’ Compensation (WC) Appeal Board’s (Board) December 2 7, 2018

or der affirming the WC J udge’s (WCJ) decision granting the Pennsylvania Uninsured Employers Guaranty Fund’s (UEGF) 1 joinder petition against Sota (Joinder Petition).

1 UEGF is a separate fund in the state treasury, established in [S] ection 16 02 of the WC Act [ of June 2, 1915, P.L. 736, as amended ] , added by the Act of November 9, 2006, P.L. 1362, 77 P.S. § 2702, for the exclusive purpose of paying [WC] benefits due to claimants and their dependents where the employer liable for the payments wa s not insured at the time of the work injury. Insurers and self

- insured employers are assessed as necessary to pay claims and the cost of administering the fund. Section 1607 of the Act, [added by S ection 7 of the Act of November 9, 2006, P.L. 1362,] 77 P.S. § 2707.2

Petitioners present five issues for this Court’s review: (1) whether the Board er red by reversing the WCJ’s de c ision dismiss ing the J oinder P etition pursuant to S ection 315
of the WC Act (Act); 2 (2) whether the Joinder Petition contain ed a new cause of
action after the statute of limitations under S ection 315 of the Act had expired ; (3 )
whether the Board erred by concluding that Section 131.36(d) and (h) of the Board’s Regulations 3 supersede s and subvert s the statute of repose set forth in S ection 315 of
the Act ; (4) w hether the Board exceeded its scope and standard of review by imprope rly engaging in fact

- finding and concluding that the Joinder P etition was timely pursuant to Section 131.36(d) of the Board’s Regulations; and (5) whether the
Board should have reversed the WCJ’s d ecision when the UEGF failed to file an appeal within 20 da ys of the WCJ’ s December 9, 2013 decision 4 dismissing the
J oinder P etition . After review, we affirm.

On August 27, 2012, Claimant filed a claim petition alleging multiple injuries occurring in the course and scope of his employment with George Zawilla (Z awilla) d/b/a Gorilla Construction (Gorilla Construction) on October 26, 2009. On August 30, 2012, Claimant learned that Gorilla Construction did not carry WC
insurance. On October 3, 2012, Claimant filed a claim p etition for WC b enefits from
UEGF ( Claim Petition) containing the same allegations. UEGF filed the Joinder Petition, asserting that Sota was the general contractor for the project on which
Claimant was allegedly injured and was a statutory employer. The WCJ held hearings on January 3, June 20, and July 24, 2013 and April 8, 2014.

Jackson v. Workers’ Comp. Appeal Bd. (Radnor Sch. Di s t. & ACTS Ret

. Cmty.) , 148 A.3d 939, 944 n.6 (Pa. Cmwlth. 2016).

2 Act of J une 2, 1915, P.L. 736, as amended , 77 P.S. § 602 ( B arr ing all claims
, “ unless, within three years after the injury, the parties shall have agreed upon the compensation payable under this article; or unless within three years after the injury, one of the parties shall have filed a petition

. . . . ”)

.

3 34 Pa. Code §§ 131.36(d), (h).
4 The WCJ’s December 9, 2013 decision included the WCJ’s December 4, 2013 order.3 On July 24, 2013 , Sota orally moved to strike the Joinder Petition. On
December 4
, 2013, the WCJ entered an I nterlocutory O rder grant ing Sota’s motion to
strike the Joinder Petition. The WCJ determined that the Join der Petition was not timely because it was not filed within three years of Claimant’ s alleged October 26,
2009 injury in accordance with Section 315 of the Act

. On July 1 , 2014, the WCJ
entered an interim I nter locutory O rder ruling that Claimant was an em ployee of
Gorilla Construction

.

O n April 13 , 2015 , t he WCJ granted the Claim Petition. The WCJ found that Claimant sustained injuries to his back and left leg as a result of his October 26,
2009 work incident

. He also found that Claimant was totally dis abled from October 26, 2009 through March 1, 2010
, and awarded indemnity benefits for that time period. Further, the WCJ determined that Claimant provided UEGF with timely
notice of the claim , and dismissed the Joinder Petition as untimely filed . On Apri l 16,
2015
, the WCJ circulated an amended d ecision attach ing his interlocutory o rders to
the d ecision , and reaffirmed his April 1 3 , 2015 d ecision. Gorilla Construction and UEGF appealed to th e Board.

O n June 27, 2016, the Board determined that the WCJ er red by dismissing the Joinder Petition as untimely. The B oard did not agree that Section 315
of the Act serves as a bar to a j oinder p etition because Section 131.36(d) of the
B oard’s Regulations provides a deadline for the filing of a j oinder p etition and
Section 131.36(i) of the B oard’s Regulations specifies that
, after joinder, the original
claim petition is deemed to be amended to assert the claimant ’s claim against the joined party. T he Board concluded that the Joinder Petition was timely because the Claim Petition was timely filed under Section 315 of the Act and Zawilla testified at
the June 20, 2013 hearing that
, at the time of his injury
, Claimant was working for
Gorilla Construction , which was Sota’s subcontractor
, and UEGF filed the Joinder
Petit ion on July 2, 2013, within 20 days of th at hearing . Accordingly, the Board4

remanded the matter to the WCJ for reconsideration of the Joinder Petition on the
merits. On November 1, 2017, the WCJ concluded that Sota was a statutory employer and granted UE GF’ s Joinder Petition . Sota appe a led to the Board. On December 27, 2018, the B oard affirmed the WCJ’s dec ision. Petitioners appealed to
this C ourt. 5 Petitioners first argue that the Board erred by reversing the WCJ’s decision dismissing the Joinder Pe tition pursuant to Section 315 of the Act because
the Joinder P etition was filed eight months beyond the statutory deadline

.

Initially, Section 315 of the Act provides: In cases of personal injury all claims for compensation shall be forever barred
, unl ess, within three years after the injury, the parties shall have agreed upon the compensation payable under this article; or unless within three years after the injury, one of the parties shall have filed a petition as provided in article four hereof

. 77 P .S. § 602 ( bold and italic emphasis added). Section 131.36(d) of the Board’s Regulations requires:

The petition for joinder form shall be filed with the Department [of Labor and Industry (Department)] no later than 20 days after the first hearing at whic h evidence is received regarding the reason for which joinder is sought, unle ss the time is extended by the [WCJ] for good cause shown.

34 Pa. Code § 131.36(d) . Section 131.36(h) of the Board’s Regulations mandates:

After joinder, the original petition sh all be deemed amended to assert a claim of the claimant against an additional defendant. The additional defendant is liable to any other

5 “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. Work ers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.) , 99 A.3d 598, 601 n.6 (Pa. Cmwlth. 2014).5 party as the judge orders. The additional defendant shall have the same rights and responsibilities under this chapte r as the original defendant.

34 Pa. Code § 131.36( h ).

Petitioners argue that Section 315 of the Act is strictly a statute of

repose that completely extinguish es a claimant’s rights created by the Act.
Petitioners further claim that this Court has const r ued Section 315 of the Act as barring petitions to join additional defendants and cite to Viwinco v. W ork men ’ s C omp ensation A

ppeal B oar

d (Ho rn er) , 656 A.2d 566 (Pa. Cmwlth. 1995), and CRL of Maryland, Inc. v. Work men ’ s Com pensation Appeal B oar

d (Hopkins)
, 627 A.2d 1238 (Pa. Cmwlth. 1993), to support their position. UEGF and Gorilla Construction rejoin that
, because UEGF filed the Joinder Petition within the time limit established in the Board’s Regulations, it was timely filed. The issue of whether a joi nder petition must be filed within the three

- year statute of limitations is an issue of first impression.
In Viwinco , the c laimant filed a claim petition on March 31, 1992, alleging that he sustained a work

- related injury or an aggravation of a pre

- exi sting condition to his left knee on September 4, 1991. The e mployer filed a petition to join Cigna as an additional defendan t, wherein employer alleged that the claimant’ s March 1, 1989 injury, which occu rred during the period of Cigna’ s insurance

coverag e, was the cause of the September 4, 1991 injury. However, because the
claimant’s claim for his 1989 injury was time

- barred under Section 315 of the Act
, the Viwinco Court concluded the referee 6 erred by granting the joinder petition. Similarly, the CRL Court determined th at a joinder petition was not timely because the underlying claim petition was not timely. 7 In both cases, the joinder petition was

6 Prior to the 1996 amendments to the Act, WCJ’ s were referred to as referees

. 7 CRL is further distinguishable because it involved the three

- year time limitation contained in Section 434 of the Act, added by Section 6 of the Act of June 26, 1919, P.L. 642, as amended
,6

untimely because Section 315 of the Act barred the claimant’s underlying claim

. Accordingly, both cases are inapposite.

Here, it is undisputed that Claimant filed the Claim Petition within the
three

- year time limit set forth in S ection 315 of the Act. Because “one of the parties” “filed a petition” “within three years after the injury
, ” Claimant’s claim i s viable. 77
P.S. § 602

. Thus , UEGF had “20 days after the first hearing at which evidence [was] received regarding the reason for which joinder is sought ” to file the Joinder Petition.
34 Pa. Code § 131.36(d)

. Zawilla testified on June 20, 2013 that t he job on which Claimant was working when he was injur ed was a subcontracting job , with Gorilla Construction acting as Sota’s subcontractor
, see Reproduced Record (R.R.) at 429a, and UEGF filed the Joinder Petition on July 2, 2013

. S ee R.R. at 20a . Accor dingly,

“ the [Claim Petition] shall be deemed amended to assert a claim of [] [C] laimant

a gainst [Sota] .” 34 Pa. Code § 131.36(h).

Moreover, under Petitioners ’ rationale , a claimant could file a claim petition against UEGF on the last day of his three

- year time limit to preclude UEGF from joining any additional defendants. Considering that UEGF would not have knowledge of the injury before the claim petition was filed
, and it would be effectively precluded from joining the additional parties thereafter , UEGF would have no recourse against the putative liable parties . In ascertaining the General Assembly’s intent in enacting a statute, it is presumed “[t]hat the General Assembly does not intend a result that is absurd[.]” Section 1922(1) of the Statuto ry Construction Act of 1972, 1 Pa.C.S. § 1922(1). Interpreting the Act in a manner that would permit a claimant to preclude UEGF from joining additional defendants would yield an unreasonable and absurd result. Consequently, this Court concludes that
Sec tion 315 of the Act did not bar the Joinder Petition

.

77 P.S. § 1001 (relating to an employer’ s liability to pay compensation under a compens ation agreement notice or award), not Section 315 of the Act

.7 Petitioners next assert that the Board erred by allowing an amendment of
the Claim Petition because the amendment contain s a new cause of action

. Specifically, Petitioners contend that a claim petitio n may not be amended to create a
new cause of action after the statute of limitations under Section 315 of the Act has passed. Petitioners cite Mangine v. Workmen’ s Comp ensation Appeal B oar d (Consolidated Coal Co.) , 487 A.2d 1040 (Pa. Cmwlth. 1985)
, 8 and Zafran v.
W orkers’ C ompensation A

ppeal B oard (Empire Kosher Poultry , Inc. ) , 713 A.2d 698 (Pa. Cmwlth. 1998), to support their position.

In Ma n gine , the claimant filed a claim petition on November 21, 1980 alleging total disability due to pneumoconiosis an d/or anthracosilicosis (commonly known as black lung disease) contracted in the 43 years he worked as a coal miner

. At a hearing on September 22, 1 9 82, the claimant orally moved to amend his claim petition to assert th at his disability resulted from a heart attack suffered at work on November 22, 1977. The referee denied the motion to amend. This Court concluded
that because the claimant was proceeding under an entirely different theory of

recovery , the claimant’s cla im based upon a heart attack alleged to have occurred on November 22, 1977 was time

- barred.

The Zafran Court dismissed a widow’s fatal claim petition filed more than three years after her husband’s death, notwithstanding that decedent’s claim petition w as filed before his death, because it was time

- barre d by Section 315 of the Act. The Court recognized that “[a] widow [] has an inde pendent claim to compensation, ‘ but only if she files her claim within the statutory period aft er her
husband’ s death. ’ ” Z

afran , 713 A.2d at 700 (quoting Auto Serv

. Councils of Pa

. , Inc.
v. Workmen’ s Comp

. Appeal Bd

. (Compton) , 590 A.2d 1355, 1359 (Pa. Cmwlth. 1991) ). Because the widow’s claim was i n dependent of her husband’s claim, the

8 Mangine was overruled on other grounds by FMC Corp. v. Workmen’s Compensation Appeal Board (Wadatz) , 542 A.2d 616 (Pa

. Cmwlth. 1988).8

recovery theory c ould be different , i. e., husband’s claim was based on his injury and
wife’s claim was based on his death

.

Here, because the amendment to the Claim Petition does not change Claimant’s theory of recovery, i.e.
, he suffered multiple injuries occurring in the course and scope o f his employment on October 26, 2009
, the amendment did not
contain a new cause of action

. Therefore
, Mangine and Zafran are inapposite. Accordingly , this Court concludes the amendment was not time

- barred by Section
315 of the Act.

Petitioners further argue that the Board erred by concluding that Section 131.36(d) and (h) of the Board’s Regulations supersede s and subvert s the statute of repose set forth in Section 315 of the Act . Specifically, Petitioners contend that an administrative agency’s regulat ions cannot conflict with the statutory intention.

The law is well established that “ [r] egulations promulgated by an administrative agency pursuant to a statutory directive are invalid if they are contrary to the legislative intent of statutory provisions to which they relate

. ” Stanish v. Workers’ Comp. Appeal Bd. (James J. Ande r son Constr. Co.) , 11 A.3d 569, 575 (Pa.
Cmwlth. 2010). However, contrary to Petitioners’ contention, there is no conflict
between Section 315 of the Act and Section 131.36(d) and (h) of the Board’s Regulations. Section 315 of the Act requires one of the parties to file a claim within three years of the injury, and Section 131.36(d) and (h) of the Board’s Regulations specif ies the timing of joinder after such a claim is filed. He re, because the Claim Petition was filed within three years of Claimant’s alleged injury, the Joinder Petition was not barred by Section 315 of the Act, and thus the Board’s Regulations controlled the timing thereof. Accordingly, the Board properly applie d Section 131.36(d) and (h) of the Board’s Regulations.

Petitioners also maintain that the Board exceeded its scope and standard of review by improperly engaging in fact

- finding and concluding that the Joinder9

Petition was timely pursuant to Section 131 .36(d) of the Board’s Regulations, when
the WCJ did not address the timeliness of the Joinder Petition pursuant to Section 131.36(d) of the Board’s Regulations or make any finding of fact or conclusion of
law concerning the same

.

This Court has held tha t “ the WCJ [is] the ultimate fact finder, but [] the
Board can ‘ consider whether any conclusion reached by the [WCJ] constitutes an
error of law. ’ ” Habib v. Workers’ Comp. Appeal Bd. ( John Roth Paving
Pavemasters ) , 29 A .3d 409, 412 (Pa. Cmwlth. 2011) (quo ting Universal Cyclops
Steel Corp. v. Workmen’ s Comp

. Appeal Bd

. (Krawczynski)
, 305 A.2d 757 , 761 ( Pa.
Cmwlth. 1973) ). Here, on December 9, 2013, the WCJ entered an I nterlocutory
O rder granting Sota’s motion to strike the Joinder Petition. The I nterlocut ory O rder
contained one sentence relevant thereto: “ Section 315 of the Act

. . . requires a party to initiate the claim within three years of the accident. Here, the accident was on October 26, 2009. The [Joinder Petition] was not filed until July 2, 201 3. ” R.R. at
71a. The WCJ referenced this determination in Finding of Fact 5 of his April 1 3
, 2015 decision, wherein he stated:

During the pendency of the case, the [UEGF] joined an entity, [Sota] the general contractor on the job upon which [Claimant] wa s working. [The WCJ] dismissed the claim because of expiration of the three [

- ] year statute of limitations on original claims. The [J] oinder [Petition] was dismissed in an [I]nterlocutory [O] rder [dated December 4, 2013 in the Decision dated] December 9, 2013.

R.R. at 236a. However, the WCJ also stated in Conclusion of Law 4 of his April 1 3
, 2015 decision : “ The Joinder [Petition] against [ Sota ] was untimely. ” R.R. at 239a. 9

Notwithstanding that the WCJ referenced it in a finding of fact, the
determinati on that Section 315 of the Act barred the Joinder Petition is clearly a

9 The WCJ incorporated his Interlocutory O rder dated December 4, 2013 into his April 1 3
, 2015 decision in Conclusion o f Law 5. See R.R. at 78 a.10

conclusion of law. As such, the Board was permitted to consider whether it

“ constitute [d] an error of law .” Habib , 29 A .3d at 412

. Further, because the WCJ
concluded that the Joinde r Petition was untimely, and Section 131.36(d) of the Board’s Regulations pertains to the time limit for filing a joinder petition, the Board was well within its purview to consider it. Accordingly, the Board did not exceed its scope and standard of revie w by concluding that the Joinder Petition was timely filed pursuant to Section 131.36(d) of the Board’s Regulations

.

Finally, Petitioners argue that the Board should not have reversed the
WCJ’s decision because the UEGF failed to file an appeal within 20 days of the WCJ’s December 9, 2013 decision dismissing the Joinder Petition

.

Section 423 of the Act requires an appeal be filed “ within twenty days
after notice of a [WCJ’s] adjudication .” 77 P. S

. § 853. This Court acknowledges that generally, “ an orde r of a WCJ striking a joinder petition constitutes a final, appealable order, because the order disposes entirely of the issues set forth in the joinder petition. ” Dep ’ t o f Labor & Indus., Uninsured Emp’ rs Guar. Fund v.
Workers ’ Comp. Appeal Bd. (Gerretz, Reliable Wagon & Auto Body, Inc.) , 142 A.3d 148, 154 (Pa. Cmwlth. 2016) . However, the I nterlocutory O rder in the instant case contained the following admonishment :

This interim order is not subject to appeal by [C] laimant or [] UEGF. A WCJ order strikin g a joinder petition is interlocutory in nature. According to the [] Board, an order

‘ striking a joinder petition under . . . [S] ection 131.36 [of the Board’s Regulations] is an interlocutory order not subject to appeal until a final decision is entered o n the merits of the underlying petition. See Travelers Ins. Co. v. Workmen’ s Comp [.] Appeal Bd. (Minoske)
, . . . 409 A.2d 514 ( [Pa. Cmwlth.] 1980) . . . .’ The Board added, ‘ Minoske adopted the civil practice rule that an order permitting joinder is inter locutory and generally unappealable. This rule also extends to orders denying joinder. ’ Podolak v. MK Rail
, Workers’ Compensation Appeal Board No. A01

- 3498 (filed September 26, 2002).11 . . . . This Interlocutory Order is not subject to appeal.
This Order remains in effect until modified by further order or until a final order is issued in this matter.

R.R. at 71a (emphasis in original). Faced with virtually identical language in a WCJ order striking a joinder petition, this Court in Gerretz opined:

In thi s case, the Court is at a loss as to why the WCJ affirmatively and repeatedly described the order as interlocutory. The WCJ’ s direct admonishment not to appeal the order was incorrect. We conclude that when an adjudicator erroneously includes prohibitory language in a decision and order that not only fails to advise a litigant of the right to appeal (as is the custom in [WC] matters), but rather affirmatively directs the litigant th at he or she may not appeal an order, the litigant (or his or her counsel) may have grounds to seek nunc pro tunc review. Given this standard, [UEGF] must be given an opportunity to establish that a breakdown in the administrative process occurred such th at the Board should have considered [UEGF ’s ] appeal nunc pro tunc.
Gerretz , 142 A.3d at 155

- 56.

Here, i n addition to including the prohibitory language in the Interlocutory Order, the WCJ included the determination in his April 1 3 , 2015 decision, see R.R . at 7 9 a, and attached the Interlocutory Order to his April 16, 2015
Amended Decision. S ee R.R. at 81a

- 87a. Moreover, the Board did not question the appealability of the Interlocutory Order, but rather
, addressed it and remanded the
matter to the WCJ to “reconsider the merits of the [] Joinder Petition.” R.R. at 154a.

Under the circumstances presented herein, this Court concludes the Board properly addressed Petitioners’ appeal of the I nterlocutory Or der. Accordingly, th e Interlocutory O rder i s properl y before this C ourt.12 For all of the above reasons, the Board’s order is affirmed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sota Construction Services, Inc. : and Selective Insurance Company : of South Carolina, :

Petitioners :

:
v. :
: Workers’ Compensation Appeal : Board (Czarnecki, Zawilla d/b/a : Gorilla Construction, and Uninsured : Employer s Guarant y Fund), : No. 87 C.D. 2019

Respondents :

O R D E R

AND NOW, this 20 th day of December , 201 9 , the Workers’ Compensation Appeal Board’s December 27, 2018 order is affirmed.

___________________________ ANNE E. COVEY, Judge