IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

 

 
 
 

 
 
v. 
 

alter Swierbinski, 

Petitioner 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Scranton Restaurant Supply 
 
and Uninsured Employers  
 
Guaranty Fund (Workers’  
Compensation Appeal Board),   
Respondents  
 

 

 

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:  No. 971 C.D. 2021 
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:  Submitted:  February 3, 2023 

EFORE:  HONORABLE CHRISTINE FIZZANO CANNON, Judge 

HONORABLE ELLEN CEISLER, Judge 
HONORABLE LORI A. DUMAS, Judge 
 

OPINION NOT REPORTED 

EMORANDUM OPINION BY 

  W

 B

 M

JUDGE CEISLER  

 

 

 

 

FILED:  March 20, 2023 

 

Walter Swierbinski (Claimant) petitions this Court for review of the August 

24,  2021  order  of  the  Workers’  Compensation  Appeal  Board  (Board),  which 

reversed  the  decision  of  a  workers’  compensation  judge  (WCJ)  to  the  extent  it 

imposed  liability  upon  the  Uninsured  Employer’s  Guaranty  Fund  (Fund)  for  the 

payment of Claimant’s workers’ compensation benefits.  The Board’s August 24, 

2021  order  otherwise  modified  the  WCJ’s  decision  to  reflect  that  Scranton 

Restaurant Supply (Employer) was solely liable for payment of Claimant’s workers’ 

compensation benefits.  The issue before this Court is whether the Board erred in 

concluding that the Fund was not liable for Claimant’s benefits because Claimant 

failed to timely notify the Fund of his work injury, as required by Section 1603(b) 

 

of  the  Workers’ Compensation Act  (Act).1    After review, we reverse in part, and 

affirm in part, the Board’s order. 

I.  Background 

 

The underlying facts of this matter are largely undisputed.   On October 10, 

2017,  Claimant  suffered  a  work  injury  to  his  left  wrist,  right  elbow,  and  right 

shoulder after falling down a flight of stairs  while in the course and scope of his 

work as a restaurant equipment repairman.2  Certified Record (C.R.), Item No. 2; 

Item  No.  20,  Notes  of  Transcript  (N.T.),  10/4/19,  at  18,  24.    Claimant  notified 

Employer of his work injury that day.  Id. at 23.  He returned to work in a light duty 

capacity for a few weeks in January or February of 2018.  Id. at 23, 38.  Although 

Claimant  only  worked  a  few  weeks  following  his  work  injury,  Employer  paid 

Claimant’s regular wages through June 2018.  Id. at 28-29, 40.  Claimant advised 

his treatment providers that medical bills should be submitted to Employer under a 

workers’ compensation claim.3  Id. at 37.  He first became aware that Employer did 

not have workers’ compensation insurance in November 2017.  Id. at 38.  

 

Claimant filed a claim petition against Employer on July 16, 2019, seeking 

total disability benefits from October 10, 2017, and ongoing.  C.R., Item No. 2.  On 

July  24,  2019,  Claimant  filed  a  Notice  of  Claim  Against  Uninsured  Employer 

(Notice).  C.R., Item No. 35.  Thereafter, on August 28, 2019, Claimant filed a claim 

 

1 Act of June 2, 1915, P.L. 736, as amended, added by the Act of November 9, 2006, P.L. 
1362, 77 P.S. § 2703(b).  Section 1603(b) provides that a claimant must notify the Fund within 45 
days  after  he  is  advised  that  an  employer  is  uninsured.    The  claimant  shall  not  receive 
compensation from the Fund unless notice is given.   

  
2 The extent and nature of Claimant’s work injury is not at issue, and, therefore, we need 

not summarize the medical evidence further. 

 Employer did not cover Claimant’s medical bills.  C.R., Item No. 20, N.T., 10/4/19, at 

26; Item No. 21, N.T., 4/9/20 at 20. 

  3

2 

petition  against  the  Fund.    C.R.,  Item  No.  4.    The  Fund  filed an  answer denying 

liability for Claimant’s work injury on the basis that Claimant failed to timely notify 

the Fund of his work injury.  C.R., Item No. 6.  During an April 9, 2020 hearing 

before the WCJ, counsel for the Fund acknowledged that Employer paid Claimant 

wages in lieu of compensation, but asserted that Employer’s actions did not bind the 

Fund with respect to paying Claimant’s workers’ compensation benefits. C.R., Item 

No. 21, N.T., 4/9/20, at 9.  Employer did not appear at any hearings before the WCJ 

or  otherwise  present  a  defense  to  the  claim  petition.    According  to  Claimant, 

Employer went out of business in early 2019.  C.R., Item No. 20, N.T., 10/4/19, at 

39.  Counsel for Claimant indicated during the April 9, 2020 hearing that Employer 

had filed for bankruptcy.  C.R., Item No. 21, N.T., 4/9/20, at 7.   

 

The  WCJ  granted  the  claim  petition  filed  against  the  Fund  in  a  decision 

circulated  on  September  28,  2020.    C.R.,  Item  No.  7  at  9.    The  WCJ  credited 

Claimant’s testimony that he was aware in November 2017 that Employer did not 

have workers’ compensation insurance and that Employer paid Claimant wages in 

lieu of compensation for a period of time.  C.R., Item No. 7, Finding of Fact (F.F.) 

No. 21.  The WCJ acknowledged that Claimant did not provide notice to the Fund 

within 45 days of November 2017.  Id.  Nevertheless, the WCJ found that, because 

Employer paid Claimant wages in lieu of compensation, the Fund was estopped from 

denying liability for Claimant’s work injury.  Id.  Accordingly, the WCJ concluded 

that  the  Fund  was  responsible  for  paying  Claimant’s  workers’  compensation 

benefits, including any related medical expenses, with the Fund receiving a credit 

for any wages Employer paid in lieu of workers’ compensation.  Conclusion of Law 

(C.L.) No. 3.          

3 

 

The Fund appealed to the Board,4 arguing that Claimant failed to notify the 

Fund within 45 days of the date that he knew Employer was not insured, as required 

by  Section  1603(b)  of  the  Act,  and  that  the  Fund  was  not  bound  by  Employer’s 

payment of wages in lieu of workers’ compensation.  C.R., Item No. 14.  The Fund 

also  argued  that  the  WCJ  erred  in  not  granting  the  claim  petition  filed  against 

Employer, as the Fund could only be held secondarily liable to a primarily liable 

employer.    

 

The Board reversed, noting that Section 1603(b) of the Act barred the payment 

of compensation by the Fund if notice was not provided within 45 days.  The Board 

recognized that Section 1603(b) had recently been amended by the Act of October 

24,  2018,  P.L.  804,  No.  132  (Act  132),  and  that,  prior  to  Act  132’s  enactment, 

Section 1603 only barred compensation until notice was given to the Fund that an 

employer  was  uninsured.    Section  4(2)  of  Act  132  provided,  however,  that  the 

amendment to Section 1603(b) applied retroactively to claims existing as of October 

24,  2018,5  for  which  compensation  had  not  been  paid  or  awarded.    The  Board 

interpreted  this  language  to  require  that  amended  Section  1603(b)  applied 

retroactively unless a claimant had been paid compensation  “under the Act or an 

award by the WCJ.”  C.R., Item No. 17, Board Decision at 9.  The Board reasoned 

that  Employer’s  payment  of  wages  in  lieu  of  workers’  compensation  did  not 

constitute compensation paid under the Act or pursuant to an award by a WCJ, in 

4 Claimant also appealed a finding by the WCJ that unpaid medical bills submitted into the 
record did not relate to his work injury but instead stemmed from an unrelated civil matter.  C.R., 
Item No. 12.  The Board agreed with Claimant after determining that the WCJ misapprehended 
the evidence, which indicated that the medical bills at issue were introduced as part of a civil action 
filed against the business upon whose property Claimant sustained his work injury.  C.R., Item 
No. 17.  

 Act 132 became effective immediately upon enactment. 

  5

 

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part  because  Employer  had  not  formally  accepted  liability  for  Claimant’s  work 

injury.  Id.  Accordingly, the Board held that Claimant was required to notify the 

Fund  within  45  days  of  the  date  he  knew  that  Employer  was  uninsured,  which 

occurred in November 2017.  Id.  As Claimant did not file his claim petitions until 

July  2019,  the  Board  concluded  that  his  claim  was  barred  by  the  amendment  to 

Section  1603(b).    Id.    Furthermore,  while  Employer  was  estopped  from  denying 

liability for Claimant’s work injury, having paid Claimant his regular wages in lieu 

of workers’ compensation, Section 1601 of the Act6 explicitly states that the Fund 

“shall not be considered an insurer[.]”  Therefore, the Fund could not be “substituted 

for [Employer’s] insurer” and “absorb [Employer’s] liability to Claimant[.]” Board 

Decision at 10.     

 

The Board agreed that the WCJ erred in failing to find Employer primarily 

liable for Claimant’s work injury.  Therefore, while the Board reversed the WCJ’s 

decision  imposing  liability  against  the  Fund,  it  granted  the  claim  petition  filed 

against  Employer  and  modified  the  WCJ’s  decision  to  reflect  that  Employer 

remained solely liable for Claimant’s work injury.  This appeal followed.7 

II. Issues 

 

On appeal, Claimant argues that, because Employer paid Claimant wages in 

lieu  of  workers’  compensation,  the  Board  erred  in  concluding  that  the  Act  132 

amendment to Section 1603(b) applied retroactively to bar Claimant from seeking 

compensation from the Fund.  

 Our 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 Phila. v. Workers’ Comp. Appeal Bd. (Sherlock), 934 A.2d 156, 
159 n.5 (Pa. Cmwlth. 2007).  

  7

6 Added by the Act of November 9, 2006, P.L. 1362, 77 P.S. § 2701. 

 

5 

III.  Discussion 

 

Section 1602 of the Act8 established the Fund “for the exclusive purpose of 

paying”  workers’  compensation  benefits  under  the  Act  to  a  claimant  whose 

employer failed to carry workers’ compensation liability insurance at the time the 

work injury occurred.  Section 1603(b) of the Act currently mandates that an injured 

employee notify the Fund within 45 days after being advised that his employer is 

uninsured.  Thus, Section 1603(b) acts as a complete bar to compensation if the Fund 

has not received notice within 45 days.  Prior to its amendment by Act 132, Section 

1603(b) provided that a claimant who failed to give the Fund notice within 45 days 

was  not  barred  from  filing  a  claim  under  the  Act.    Rather,  a  claimant  could  not 

receive workers’ compensation benefits from the Fund  until notice was provided, 

and the claimant could only receive benefits from the date notice was given.  See 

Lozado v. Workers’ Comp. Appeal Bd. (Dependable Concrete Work  & Uninsured 

Emps. Guar. Fund), 123 A.3d 365, 377 (Pa. Cmwlth. 2015) (failure to meet the 45-

day  notice  requirement  in  Section  1603(b)  of  the  Act  does  not  completely  bar 

payment of compensation; it merely delays such payments until the date notice is 

given).    

 

In  concluding  that  Claimant  was  not  barred  from  receiving  workers’ 

compensation  benefits  from  the  Fund,  the  WCJ  relied  on  Kelly  v.  Workmen’s 

Compensation  Appeal  Board  (DePalma  Roofing),  669  A.2d  1023  (Pa.  Cmwlth. 

1995),  in  which  this  Court  held  that  an  employer  voluntarily  paying  an  injured 

employee wages in lieu of workers’ compensation benefits, and who failed to file a 

Notice of Compensation Denial, could not later deny that the employee’s injury was 

work related.  Given our holding in Kelly, the WCJ determined that Employer’s wage 

8 Added by the Act of November 9, 2006, P.L. 1362, 77 P.S. § 2702.  

 

6 

payments  similarly  bound  the  Fund  and  precluded  it  from  denying  liability  for 

Claimant’s work injury.   

 

The Board disagreed with the WCJ’s interpretation of Kelly, holding that it 

should  apply  narrowly  to  situations  in  which  an  employer  or  insurer  “lulled  a 

claimant into complacency” through the payment of wages in lieu of compensation, 

thereby causing the claimant to file an untimely claim petition.  Kelly, according to 

the Board, was not intended to transfer an employer’s or insurer’s liability to another 

entity, such as the Fund.  

 

At the outset, we agree with the Board that Kelly does not guide our decision 

here,  although  our  reasoning  differs.    The  employer  in  Kelly  denied  that  the 

claimant’s injury was sustained in the course and scope of employment after paying 

the claimant wages in lieu of compensation for several months.  Instantly, the Fund 

has not denied that Claimant suffered a work injury or that Employer paid Claimant 

wages in lieu of compensation.  Rather, it denies liability on the basis that Claimant 

did  not  notify  the  Fund  within  45  days  after  he  was  advised  that  Employer  was 

uninsured.  As the facts are undisputed, we are faced with the purely legal question 

of whether the Board erred in applying amended Section 1603(b) retroactively to bar 

Claimant’s  claim  against  the  Fund  after  concluding  that  wages  in  lieu  of 

compensation are not compensation “paid or awarded” under Section 4(2) of Act 

132.   

 

Claimant argues that his claim does not meet the requirements for retroactive 

application of the amendment to Section 1603(b) because Employer paid him wages 

in lieu of compensation prior to October 24, 2018, when amended Section 1603(b) 

went into effect.  As a result, Claimant maintains that the WCJ properly concluded 

the  Fund  was  liable  for  payment  of  his  workers’  compensation  benefits,  and  the 

7 

Board  erred  in  reversing  the  WCJ.    Claimant  also  notes  that  the  Fund’s  stated 

purpose  is  to  pay  workers’  compensation  benefits  to  an  injured  employee  whose 

employer  failed to  carry workers’  compensation  insurance.    Reversing  the  Board 

would merely hold the Fund to its purpose.   

 

Per  Section  4(2)  of  Act  132,  the  amendment  to  Section  1603(b)  applies 

“retroactively to claims existing as of October 24, 2018, for which compensation has 

not been paid or awarded.”  In its brief filed in support of the Board’s decision, the 

Fund argues that “compensation” in Section 4(2) is governed by the definition of 

compensation in Section 1601 of the Act, 77 P.S. § 2701, which limits the term to 

“[b]enefits paid pursuant to” Sections 306 and 307 of the Act.9  Because Claimant 

did  not  receive  benefits  pursuant  to  Sections  306  and  307  of  the  Act,  the  Fund 

contends that he was not paid or awarded compensation for purposes of Section 4(2) 

of Act 132.  Additionally, the Fund notes that Claimant admitted he was aware in 

November 2017 that Employer was uninsured, but his claim petitions were not filed 

until  July  2019.    Claimant  does  not  deny  that  he  failed  to  notify  the  Fund  of 

Employer’s status within 45 days of November 2017.  As a result, the Fund contends 

that amended Section 1603(b) applies retroactively to bar any claim Claimant could 

assert against the Fund.  Even if this Court determines that Claimant was “paid or 

awarded”  compensation  under  Section  4(2)  of  Act  132,  the  Fund  argues  that 

amended  Section  1603(b)  applies  retroactively  because  Claimant  did  not  have  a 

claim “existing as of October 24, 2018,” having filed his first claim petition on July 

 

9 Sections 306 and 307 of the Act establish the schedules of compensation for total and 
partial disability, specific loss, and survivor’s benefits.  Section 306 of the Act, 77 P.S. §§ 511, 
511.1, 511.3, 512, 513, 514, 531, 531.1, 541, and 583.  Section 306(a.1) was added by the Act of 
June 24, 1996, 77 P.S. § 511.1.  Section 306(a.3) was added by the Act of October 24, 2018, P.L. 
714, 77 P.S. § 511.3.  Section 306(f.2) was added by the Act of July 2, 1993, P.L. 190, 77 P.S. § 
531.1.  Section 306(h) was added by the Act of December 5, 1974, P.L. 782, 77 P.S. § 583.  Section 
307 of the Act, 77 P.S. §§ 542, 561, and 562.    

8 

16,  2019.    The  Fund  provides  no  legal  authority  to  support  its  argument  that  a 

workers’ compensation claim does not exist until a claim petition is filed. 

 

First, we will address whether payments in lieu of compensation qualify as 

compensation paid or awarded under Section 4(2) of Act 132.   “The object of all 

interpretation and construction of statutes is to ascertain and effectuate the intention 

of  the  General  Assembly  [(GA)].”    1  Pa.C.S.  §  1921(a).    In  the  absence  of  a 

demonstrated constitutional infirmity, courts must generally apply the plain terms of 

a statute, as written.  Lower Swatara Twp. v. Pa. Lab. Rels. Bd., 208 A.3d 521, 530 

(Pa. Cmwlth. 2019).  Where the plain language in a statute is unambiguous, we must 

apply that language “without employing familiar canons of construction and without 

considering legislative intent.”  Dubose v. Quinlan, 173 A.3d 634, 643 (Pa. 2017).   

The plainness or ambiguity of statutory language is determined by reference to the 

language itself, as well as the specific context in which the language is used and the 

broader context of the statute as a whole.  Roethlein v. Portnoff Law Assocs., Ltd., 

81 A.3d 816, 822 (Pa. 2013).  We must not interpret statutory words in isolation but 

must read them with reference to the context in which they appear.  Id.  Moreover, 

we must presume that the GA “does not intend a result that is absurd, impossible of 

execution[,] or unreasonable.”  1 Pa.C.S. § 1922(1).  Words and phrases are to be 

construed according to their common and approved usage.  1 Pa.C.S. § 1903(a). 

 

The  Fund  was  established  pursuant  to  the  Act  of  November  9,  2006,  P.L. 

1362,  which  became  effective  on  January  8,  2007.    The  statutory  provisions 

governing the Fund are contained in Sections 1601 through 1610 of the Act.   As 

noted  above,  “compensation”  is  defined  in  Section  1601  to  mean  benefits  paid 

pursuant to Sections 306 and 307 of the Act.  While Section 4(2) of Act 132 does 

not  explicitly  state  that  “compensation”  “paid  or  awarded”  is  governed  by  the 

9 

statutory definition in Section 1601, it stands to reason that amended Section 1603(b) 

was not intended to apply retroactively in matters for which the payments at issue 

relate  to  losses  that  are  not  compensable  under  the  Act.    Such  a  conclusion  is 

consistent with prior decisions of this Court holding that the Act does not extend to 

include  non-health  related  losses  sustained  by  an  injured  worker.    See  Kerr  v. 

Workmen’s Comp. Appeal Bd. (Campbell Co.), 519 A.2d 62, 64 (Pa. Cmwlth. 1987). 

Our discussion does not end here, however, as Pennsylvania courts have consistently 

held  that,  in  certain  circumstances,  payments  made  by  an  employer  in  lieu  of 

compensation may be treated as workers’ compensation benefits under the Act.       

 

Payments  of  compensation  have  been  defined  by  our  Supreme  Court  as 

amounts “received and paid as compensation for injury or death of an employee, 

occurring in the course of employment.”  Schreffler v. Workers’ Comp. Appeal Bd. 

(Kocher Coal Co.), 788 A.2d 963, 967 (Pa. 2002).  Payments made by an employer 

to  an  injured  worker  are  “in  lieu  of  compensation”  when  made  voluntarily  or 

informally, “apart from the Act,” and “paid with the intent to compensate for a work-

related injury.”  Dickerson v. Workers’ Comp. Appeal Bd. (A Second Chance Inc.), 

229  A.3d  27,  32  (Pa.  Cmwlth.  2020)  (emphasis  in  original)  (internal  citations 

omitted).  It is the intent by which the payment is made, not the receipt thereof, that 

is relevant.  Kelly, 669 at 1026.  To demonstrate the necessary intent, the burden is 

on the claimant to show that payments made to him were received as compensation 

under the Act and the record must demonstrate that any such finding is based on 

substantial evidence.  NUS Corp. v. Workmen’s Comp. Appeal Bd. (Garrison), 547 

A.2d 806, 809 (Pa. Cmwlth. 1988).  An employer effectively admits liability under 

the Act by paying wages in lieu of compensation.  Id.   

10 

 

Payments  made  in  lieu  of  compensation  act  to  toll  the  statutory  period  for 

filing a claim petition under Section 315 of  the Act,10  provided payments are not 

made for services rendered, but to compensate a claimant’s lack of earning power, 

“just as if they had been formal payments rendered under the Act.”  NUS, 547 A.2d 

at 809 n.1 (internal citations omitted).  The source of “payments of compensation” 

need not be a workers’ compensation carrier.  Harley Davidson, Inc. v. Workers’ 

Comp. Appeal Bd. (Emig), 829 A.2d 1247, 1252 (Pa. Cmwlth. 2002).  An employer 

is entitled to a credit or offset against its workers’ compensation liability for amounts 

paid to an injured employee in relief of the employee’s inability to work.  West Penn 

Allegheny Health Sys., Inc. v. Workers’ Comp. Appeal Bd. (Cochenour), 251 A.3d 

467 (Pa. Cmwlth. 2021).  Presumably, if the Fund was deemed liable for payment 

of Claimant’s workers’ compensation benefits, the Fund would expect a credit in the 

amount of payments made by Employer in lieu of compensation.   

 

Notably, the Fund has not argued that payments made by Employer were not 

intended to  compensate  Claimant  for  losses  not  covered  by  the  Act.    Indeed,  the 

Fund  has  all  but  conceded  that  Employer  made  payments  to  Claimant  in 

consideration of his inability to work following the October 10, 2017 work injury.  

The  Fund’s  argument  centers  on  the  informality  by  which Employer  tendered  its 

payments in lieu of compensation.   

 

We are not persuaded by the Fund’s argument, as it lacks support from the 

applicable  statutory  provisions.    Moreover,  as  the  case  law  discussed  herein 

demonstrates, under the right circumstances, payments made by an employer for the 

purpose of compensating an injured employee’s inability to work may substitute for 

 

10  Section  315  of  the  Act,  77  P.S.  §  602,  provides  that  all  claims  for  compensation  are 
barred unless, within three years after the injury, the parties have either agreed on the amount of 
compensation payable, or a petition has been filed by one of the parties.   

11 

the payment of workers’ compensation benefits.  Such a circumstance exists in the 

instant appeal.  While Claimant was advised in November 2017 that Employer was 

uninsured, Employer continued to pay Claimant’s wages until June 2018, including 

periods during which Claimant suffered wage loss due to his work injury.  These 

payments constitute compensation “paid or awarded” under Section 4(2) of Act 132.  

Neither the Fund, nor the Board in its decision, have advanced arguments that would 

compel a different outcome.   

 

Accordingly, we conclude that the Board erred in concluding that amended 

Section 1603(b) applied retroactively to bar Claimant from filing a claim petition 

against the Fund.  In so holding, we are mindful, as always, that the Act was intended 

to benefit injured employees and that we must interpret its provisions “liberally in 

the  employee’s  favor  in  order  to  effectuate  [the  Act’s]  humanitarian  objectives.”  

Cruz v. Workers’ Comp. Appeal Bd. (Kennett Square Specialties) 99 A.3d 397, 406 

(Pa. 2014).    

 

The Fund’s alternative argument, that Claimant did not have a claim existing 

prior to October 24, 2018, also lacks merit.  Section 1603(a) of the Act applies “to 

claims for an injury or a death which occurs on or after”  November 9, 2006.   In 

addition  to  amending  Section  1603(b)  of  the  Act,  Act  132  placed  the  existing 

language from Section 1603(d) into a new subparagraph 1 and added subparagraph 

2.   Section 1603(d)(1) states that a claim petition may not be filed against the Fund 

“until at least 21 days after notice of the claim is made to the [F]und.”  77 P.S. § 

2703(d)(1).    The  language  created  for  Section  1603(d)(2)  requires  that  a  claim 

petition be filed “within 180 days after notice of the claim is made to the [F]und.”  

These provisions  clearly indicate  that  an injured worker’s “claim” exists separate 

and apart from the filing of a claim petition.  The text of Act 132 does not suggest 

12 

that  the  term  “claim”  would  have  a  different  meaning  in  Section  1603(d)  than  it 

would in Section 4(2).  In the absence of legislative intent to the contrary, we cannot 

interpret  claims  under  Section  1603(d)  to  encompass  work  injuries  for  which 

litigation has not been initiated but limit claims under Section 4(2) to those matters 

in which a claim petition has been filed.     

IV.  Conclusion 

 

Claimant’s  receipt  of  payments  in  lieu  of  compensation  constitutes 

compensation “paid or awarded” under Section 4(2) of Act 132.  The Board erred in 

concluding otherwise, and, therefore, we reverse the Board’s order to the extent it 

concluded that Claimant’s claim petition against the Fund was barred by retroactive 

application  of  the  amendment  to  Section  1603(b)  of  the  Act  and,  based  on  that 

conclusion, reversed the WCJ’s decision to grant Claimant’s claim petition against 

the Fund.  The Board’s order is affirmed to the extent it granted Claimant’s claim 

petition  against  Employer.    Consequently,  Employer  is  primarily  liable  for  the 

payment of Claimant’s workers’ compensation benefits under the Act, including any 

reasonable and necessary medical expenses causally related to Claimant’s October 

10, 2017 work injury.  The Fund is secondarily liable to Employer, consistent with 

the applicable provisions of the Act. 
 
 
 
 
 
 
 

 
 
 

 
 
 

 
 
 

 

 
  ____________________________ 
  ELLEN CEISLER, Judge 

13 

IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

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:  No. 971 C.D. 2021 
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O R D E R 

 

 
 
 

 
 
v. 
 

alter Swierbinski, 

Petitioner 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Scranton Restaurant Supply 
 
and Uninsured Employers  
 
Guaranty Fund (Workers’  
Compensation Appeal Board),   
 
Respondents 
 

 

 

  W

AND NOW, this 20th day of March, 2023, the August 24, 2021 order of the 

Workers’ Compensation Appeal Board (Board) is reversed in part and affirmed in 

part.  We reverse the Board’s order to the extent it reversed the decision of a workers’ 

compensation  judge  granting  the  claim  petition  filed  by  Walter  Swierbinski 

(Claimant) against the Uninsured Employers Guaranty Fund (Fund).  We affirm that 

part of the Board’s order that granted the claim petition filed by Claimant against 

Scranton Restaurant Supply (Employer).  Employer is primarily liable for payment 

of  Claimant’s  workers’  compensation  benefits,  including  any  reasonable  and 

necessary medical expenses that are causally related to Claimant’s October 10, 2017 

work injury.  The Fund is secondarily liable  for payment of Claimant’s workers’ 

compensation benefits, including any  reasonable  and necessary medical expenses 

that  are  causally  related  to  Claimant’s  work  injury,  pursuant  to  the  applicable 

provisions of the Workers’ Compensation Act.1  

 
 
 

 
 
 

 
 
 

 
 
 

 

 
  ____________________________ 
  ELLEN CEISLER, Judge 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.