An employer cannot take a credit for an overpayment of workers’ compensation benefits paid for one work injury against an award of benefits for a subsequent work injury.

In this case, the claimant sustained a work injury in the nature of a broken right ankle in 2011. Later, a workers’ compensation judge circulated a decision giving the employer an offset against workers’ compensation benefits after the employer discovered that the claimant had been overpaid $14,233.88 in wage loss benefits. The overpayment was due to the claimant’s failure to disclose income from other employment, and the workers’ compensation judge found that the claimant had been unjustly enriched. Later, the claimant returned to full-duty work without a wage loss, her benefits were suspended, and $10,333.88 of the overpayment remained unpaid. 

The claimant then suffered a second injury in 2019 and filed a claim petition. The employer stipulated that it would accept the injury as a medical only claim in order to recoup part of the overpayment from the 2011 injury as a credit owed for the 2019 injury. The workers’ compensation judge concluded that the employer was not entitled to the requested credit against the wage loss benefits for the 2019 injury for the overpayment made relative to the claimant’s 2011 work injury. The Workers’ Compensation Appeal Board affirmed.

The Commonwealth Court affirmed as well. The court noted that the future compensation against which the employer was seeking a credit for its prior overpayment would be paid for a different injury and pursuant to a different agreement. While the court said that it was “troubled” because the overpayment resulted from the claimant’s intentional act in not disclosing required information about her earnings, it also said the fact that there was no recourse for the situation under the Act did not authorize the court to act outside its role to create a remedy that has not been provided by the Act.
 

_{What’s Hot in Workers’ Comp, Vol. 27, No. 1, January 2023 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}