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Appealing a “Non-Appealable” Order in a Workers’ Compensation Case

September 4, 2016 General

Compensation Case

Pursuant to a recent ruling in Pennsylvania, the phrase “not subject to appeal,” when written on an order issued by a workers’ compensation judge, may essentially be meaningless. A court has ruled that, even though an order was clearly stamped as “not subject to appeal,” an insurer who failed to appeal the order in a timely manner is precluded from relief. Here’s what happened.

An injured worker in Pennsylvania filed a workers’ compensation claim against an uninsured employer. As a result, the Uninsured Employers Guaranty Fund (UEGF) filed a petition against the employer’s former insurer, Somerset Insurance. Somerset answered the petition, but also filed a motion to strike/dismiss, arguing that its policy with the employer was not valid at the time of the injury. The workers’ compensation judge issued an order dismissing the petition, but clearly stated that the order only addressed the petition filed by UEGF, not the injured worker’s original claim. The court stamped on the order “This Interim/Interlocutory Order is Not Subject to Appeal.” UEGF did not appeal.

Sometime later, the workers’ compensation judge ruled on the claim petition, also reaffirming the earlier Interim/Interlocutory order dismissing UEGF’s petition to Somerset. UEGF appealed the final dispensation of the claim petition, but the Workers’ Compensation Appeal Board rejected that appeal, saying it was not timely filed. Instead, the WCAB concluded, the interim/interlocutory order was actually a final order, which should have been appealed at the time it was issued. Since it was not appealed, and the time for the filing the appeal had passed, UEGF had lost its chance to appeal.

The Commonwealth Court did not make a final determination of the issue. Instead, the court remanded the matter back to the WCAB, asking the board to determine whether UEGF was entitled to file the later appeal, in good faith reliance on the representation in the original order that it was “not subject to appeal.”

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