Sota Constr. Servs., Inc. v. Workers' Comp. Appeal Bd.

224 A.3d 63

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 Employers Guaranty Fund), Respondents

No. 87 C.D. 2019

Commonwealth Court of Pennsylvania.

Submitted on Briefs September 6, 2019

Decided December 20, 2019

James J. Turocy, Pittsburgh, for Petitioners.

Jaclyn M. Day, Assistant Counsel, Pittsburgh, for Respondent Uninsured Employers Guaranty Fund.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE COVEY

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 27, 2018 order affirming the WC Judge's (WCJ) decision granting the Pennsylvania Uninsured Employers Guaranty Fund's (UEGF)¹ joinder petition against Sota (Joinder Petition). Petitioners present five issues for this Court's review: (1) whether the Board erred by reversing the WCJ's decision dismissing the Joinder Petition pursuant to Section 315 of the WC Act (Act);² (2) whether the Joinder Petition contained a new cause of action after the statute of limitations under Section 315 of the Act had expired; (3) whether the Board erred by concluding that Section 131.36(d) and (h) of the Board's Regulations³ supersedes and subverts the statute of repose set forth in Section 315 of the Act; (4) whether the Board exceeded its scope and standard of review by improperly engaging in fact-finding and concluding that the Joinder Petition was timely pursuant to Section 131.36(d) of the Board's Regulations; and (5) whether the Board should have reversed the WCJ's decision when the UEGF failed to file an appeal within 20 days of the WCJ's December 9, 2013 decision⁴ dismissing the Joinder Petition. 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 (Zawilla) 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 petition for WC benefits 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.

On July 24, 2013, Sota orally moved to strike the Joinder Petition. On December 4, 2013, the WCJ entered an Interlocutory Order granting Sota's motion to strike the Joinder Petition. The WCJ determined that the Joinder 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 Interlocutory Order ruling that Claimant was an employee of Gorilla Construction.

On April 13, 2015, the 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 disabled 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 April 16, 2015, the WCJ circulated an amended decision attaching his interlocutory orders to the decision, and reaffirmed his April 13, 2015 decision. Gorilla Construction and UEGF appealed to the Board.

On June 27, 2016, the Board determined that the WCJ erred by dismissing the Joinder Petition as untimely. The Board did not agree that Section 315 of the Act serves as a bar to a joinder petition because Section 131.36(d) of the Board's Regulations provides a deadline for the filing of a joinder petition and Section 131.36(i) of the Board'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. The 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 Petition on July 2, 2013, within 20 days of that hearing. Accordingly, the Board 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 UEGF's Joinder Petition. Sota appealed to the Board. On December 27, 2018, the Board affirmed the WCJ's decision. Petitioners appealed to this Court.⁵

Petitioners first argue that the Board erred by reversing the WCJ's decision dismissing the Joinder Petition pursuant to Section 315 of the Act because the Joinder Petition 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 , 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 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 which evidence is received regarding the reason for which joinder is sought, unless 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 shall be deemed amended to assert a claim of the claimant against an additional defendant. The additional defendant is liable to any other party as the judge orders. The additional defendant shall have the same rights and responsibilities under this chapter 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 extinguishes a claimant's rights created by the Act. Petitioners further claim that this Court has construed Section 315 of the Act as barring petitions to join additional defendants and cite to Viwinco v. Workmen's Compensation Appeal Board (Horner) , 656 A.2d 566 (Pa. Cmwlth. 1995), and CRL of Maryland, Inc. v. Workmen's Compensation Appeal Board (Hopkins) , 156 Pa.Cmwlth. 441, 627 A.2d 1238 (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 joinder petition must be filed within the three-year statute of limitations is an issue of first impression.

In Viwinco , the claimant filed a claim petition on March 31, 1992, alleging that he sustained a work-related injury or an aggravation of a pre-existing condition to his left knee on September 4, 1991. The employer filed a petition to join Cigna as an additional defendant, wherein employer alleged that the claimant's March 1, 1989 injury, which occurred during the period of Cigna's insurance coverage, 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 referee⁶ erred by granting the joinder petition. Similarly, the CRL Court determined that a joinder petition was not timely because the underlying claim petition was not timely.⁷ In both cases, the joinder petition was 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 Section 315 of the Act. Because "one of the parties" "filed a petition" "within three years after the injury," Claimant's claim is 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 the job on which Claimant was working when he was injured 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. See R.R. at 20a. Accordingly, "the [Claim Petition] shall be deemed amended to assert a claim of [ ] [C]laimant against [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 Statutory 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...