DOYLE, Judge, concurring.

I agree entirely with the majority's analysis of the statutory construction question and its conclusion that "no section within the Act authorizes a discretionary supersedeas as to payment of medical expenses." P. 508. I cannot agree, however, that a remedy for reimbursement for medical expenses exists under Section 443 of The Pennsylvania Workmen's Compensation Act, 77 P. S. § 999, which establishes the Supersedeas Fund (Fund). The majority has concluded that the Act prohibits both an automatic and a discretionary supersedeas for medical expenses. That being the case, I do not understand how recovery for such expenses can be had from the Supersedeas Fund because Section 443 clearly states that recovery from the Supersedeas Fund is available where, and only where, a supersedeas is "requested and denied." How can a supersedeas for medical expenses be denied if, as the majority holds, there is no right to request one in the first place as a matter of law?

As I observed in my dissenting opinion in Insurance Company of North America v. Workmen's Compensation Appeal Board (Kline and Packard Press) (INA), 137 Pa. Commw. 393, 586 A.2d 500 (1991):

Reimbursement from the Supersedeas Fund is statutorily limited to "compensation" paid out. The word compensation is not specifically defined in the Act and we held in Fuhrman v. Workmen's Compensation Appeal Board (Clemens Supermarket), 100 Pa. Commw. 577, 515 A.2d 331 (1986), that a determination of what compensation means must be made on a section by section basis. We further held in Fuhrman that "compensation" as that term is used in Section 434 of the Act, 77 P. S. § 1001, (establishing a three-year statute of limitations for setting aside a final receipt) was not applicable to medical expenses under Section 306(f). Moreover, and of critical importance, is that in Fuhrman we specifically rejected the rationale of Chabotar v. S. Klein Department Store, 26 Pa. Commw. 572, 364 A.2d 970 (1976), where we had previously held that the then two-year statute of limitations under Section 413 was incorporated into Section 306(f). In rejecting the notion that the present three-year statute of limitations in Section 413 is applicable to Section 306(f) medical expenses, we stated:

Applying the logic of Chabotar would result in the incorporation of both Section 413 and Section 434 into Section 306(f). We decline to perpetuate this interpretation, because we believe that widespread changes by amendments to the Act in 1972 and 1978 altered the meaning of Section 306(f).

. . . . And, in discussing Section 306(f)(5), we further wrote:

this section . . . must presuppose the payment of medical expenses after the expiration of a statute of limitations, and thus separates the concept of 'medical expenses' from the concept of 'compensation.'

. . . . .

What the majority's holding would now do by its determination that "compensation" includes "medical expenses," which under Section 443 can only be accomplished "under the provisions of Section 413 or Section 430," is to reapply Section 413 to Section 306(f); something we absolutely eschewed in Fuhrman. In the instant case, the "compensation" referred to in Section 443 is that, and only that, which is incorporated under Sections 413 and 430, and, as above outlined, those Sections do not pertain to medical expenses. Accordingly, one is driven to conclude that reimbursement for medical expenses later judicially determined to be unreasonable or unnecessary cannot be recouped from the Supersedeas Fund. And, because of this conclusion, it follows logically that a discretionary supersedeas for such expenses cannot be obtained under the Act. I note that the majority in ADIA Personnel Agency v. Workmen's Compensation Appeal Board, 137 Pa. Commw. 405, 586 A.2d 507 (1991), has come to the same conclusion that "no section within the Act authorizes a discretionary supersedeas as to payment of medical expenses" (P. 508) (Doyle, J. dissenting) (citations omitted) (emphasis added and deleted in INA).

Further, I disagree with the majority's reading of Judge Barbieri's treatise. In the provision cited by the majority Judge Barbieri states, "although an unappealable refusal of supersedeas may work a hardship in some cases, there is the remedy providing for reimbursement under the terms of new Section 443." Barbieri, Pennsylvania Workmen's Compensation § 6.17(3) (1975). He never suggests, however, that that remedy applies in a situation where the Act does not authorize any type of supersedeas.

I must also express my disagreement with the majority's reasoning in INA upon which the majority relies. In that opinion the majority states, "[w]e can perceive no valid reason for holding that an insurer can recover work loss benefits but cannot recover medical expenses when it is ultimately decided that neither should have been paid." 137 Pa. Commw. at 398, 586 A.2d at 502. I respectfully suggest that the valid reason for such a holding is that the Act does not authorize such recovery either specifically or impliedly. Furthermore, the majority here, by relying on the majority opinion in INA, is actually inconsistent. The majority here concludes that "no section within the Act authorizes a discretionary supersedeas as to payment of medical expenses" (P. 508). Yet, that is, by inescapable inference, the very conclusion which Judge Barry reaches in INA.

Although the point is not specifically articulated, the majority is suggesting that reimbursement is allowed from the Supersedeas Fund because medical expenses are somehow "subsumed" under Section 413 of the Act within a notice of compensation payable or an original or supplemental agreement, and hence an employer can recoup medical expenses from the Fund without filing any supersedeas petition at all. This position, however, would be contrary to the procedure normally employed to recoup expenses from the Fund since in any other situation a supersedeas must be specifically requested and denied pursuant to the express language of Section 443. Further, if no supersedeas petition for medical expenses need be filed, what date should trigger the point at which reimbursement should be calculated?

Because of my position on this issue, I must consider the constitutional question that the majority has found it unnecessary to reach. The INA opinion states, "[t]his conclusion [that recovery from the fund is permissible] is buttressed by the fact that the Supersedeas Fund consists solely of payments by insurers and self-insurers within the Commonwealth." 137 Pa. Commw. at 398, 586 A.2d at 502. It seems that both the majority and ADIA believe that because ADIA has paid money into the Supersedeas Fund, it now has a due process property right in obtaining recovery from that fund if medical benefits which it pays are ultimately determined to have been paid in error. I disagree.

I begin my analysis of this issue by observing that:

Under Sections 504 and 101 of the Administrative Agency Law, 2 Pa. C.S. § 504 and § 101, due process in the form of notice and an opportunity to be heard is required only when a personal or property right or other similar interest is affected by a final order. An individual has a property interest mandating due process protection only when he has a legitimate claim of entitlement to the asserted right, Marino v. Commonwealth, 87 Pa. Commw. 40, 486 A.2d 1033 (1985), or in other words, an enforceable expectation governed by statute or contract. Amesbury v. Luzerne County Institution District, 27 Pa. Commw. 418, 366 A.2d 631 (1976); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 [ 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548] (1972). Additionally, because it has been held that duly promulgated 'legislative' regulations have the force and effect of statutory law, Girard School District v. Pittenger, 481 Pa. 91, 392 A.2d 261 (1978), they also can be the source of a substantive property right.

Hasinecz v. Pennsylvania State Police, 100 Pa. Commw. 622, 624-25, 515 A.2d 351, 353 (1986), petition for allowance of appeal denied, 516 Pa. 636, 533 A.2d 94 (1987).

While ADIA claims it has a property right in the funds it will expend for the challenged medical services, in my view these expenditures do not bring due process considerations into play as they are only the administrative costs attendant on doing business. By analogy I look again to the Supersedeas Fund. Under its enabling provisions it is to be maintained "by annual assessments on insurers and self-insurers." The assessments are to be collected by the Department of Labor and Industry. Section 443(b), 77 P. S. § 999(b), further provides in pertinent part:

Assessments shall be based on the ratio that such insurer's or self-insurer's payments of compensation bear to the total compensation paid in the year preceding the year of assessment. The total amount to be assessed shall be one-hundred percent of the amount reimbursed to insurers and self-insurers in the preceding year pursuant to this section, except that the first annual assessment made under this Act shall be in the amount of two hundred fifty thousand dollars ($250,000.)

There is a legal process under Section 443 by which an insurer may challenge an assessment it deems to be excessive, unlawful, erroneous, or invalid. But there is no such mechanism to challenge an assessment simply because an insurer paid more into the fund then it took out. Any such loss is merely part of the employer's cost of doing business. In other words, any individual employer, whether insured or self-insured, is required to pay some portion of the total compensation that was paid out to claimants for an inappropriate reason. These claimants were not entitled to such compensation, but rather than seek recoupment from the claimants, all employers (whether insured or self-insured) are required to share in that cost. Similarly, the medical expenses at issue here constitute such a cost.

While the legislature could, as it has done with payments for other workers' compensation benefits, create a system or procedure which would allow the employer/insurer to recoup funds paid out which are later judicially determined to have been inappropriately paid, and thus spread the risk or cost among all employers/insurers, it has chosen not to do so with medical costs and I decline to read such a provision into the Act. In effect, the legislature, in balancing the equities, has determined first, that where medical costs are concerned, it is better to pay those costs before a final determination has been made on the merits, even if it is subsequently determined that such costs were unreasonable or unnecessary, and second, that such costs should be borne by the individual employer/insurer rather than be paid from the Supersedeas Fund representing all employers/insurers.

While my position is seemingly unfavorable to some employers and their insurers, a contrary result would be adverse to the interest of claimants and medical providers. There are competing interests here which unfortunately cannot all be satisfactorily reconciled. It must be borne in mind, however, that the Act is to be liberally construed in favor of claimants to effectuate its beneficent purpose, Boro of Midland v. Workmen's Compensation Appeal Board (Granito), 127 Pa. Commw. 462, 561 A.2d 1332 (1989), and that the lack of remedy for any perceived inequities in the Act's statutory scheme is a matter for the legislature to correct.

PELLEGRINI, J., joins in this concurring opinion.