Legal Insights

When Two Insurers Overlap: Commonwealth Court Clarifies Shared Liability and Injury Expansion in Workers’ Comp Claim

November 24, 2025
By: Edward A. Tobin

In a unique factual scenario, the Commonwealth Court issued a ruling on November 7, 2025, which clarifies how liability is allocated between two insurers, even when the respective parties take different positions on the acceptance of a work injury at the outset. 

The matter of Factory Grinding Service, Inc., et al. v. Lane Hanna, et al. (WCAB), involved [a] traveling employee working for Factory Grinding Services (FGS), who was injured in a high impact motor vehicle accident while driving home from a sales route. Importantly, in January of 2020, Factory Grinding was acquired by FoodPrep Solutions, LLC. The acquisition resulted in FGS possessing two valid workers’ compensation polices at the time of Claimant’s injury. FGS was insured through their own policy secured through the State Workers Insurance Fund (SWIF). FoodPrep Solutions also provided coverage to the subsidiary through a policy underwritten by Berkshire Hathaway. 

Following the event, each carrier took a different position regarding acceptance of the work injury. 

• SWIF issued a medical-only NCP noting the event involved “no physical injury.” 
• Berkshire issued a Temporary Notice of Compensation Payable which acknowledged the Claimant sustained a “skull contusion.” 

Following the work event, SWIF paid for some of the Claimant’s immediate medical expenses including an ambulance bill, emergency room bill, and two prescription costs. SWIF denied all subsequent medical bills on the basis that there had been “no physical injuries.” 

Meanwhile, as the Claimant continued to treat following his discharge from the emergency room, those medical costs were covered by Berkshire pursuant to the open TNCP. The Claimant ultimately underwent back surgery on June 2, 2021. Berkshire paid for medical expenses related to the Claimant’s treatment and ultimately paid for the surgery and resulting wage loss benefits. The Amended NTCP issued by Berkshire only recognized a “skull contusion,” as the accepted diagnosis.

On April 26, 2022, Berkshire filed a Review, Modification, & Joinder Petition seeking to amend the description of injury and arguing that SWIF should have to reimburse them for a portion of the expenses incurred. Berkshire alleged that it had been paying medical benefits from the outset of the Claim and subsequently initiated wage loss payment due. They argued that SWIF should be required to reimburse Berkshire for 50% of costs previously incurred. They also argued that SWIF should be liable for 50% of all future medical and indemnity benefits attributable to the work-related motor vehicle accident.

Both carriers entered into Compromise and Release agreements with the Claimant for their respective accepted injuries. However, Berkshire preserved its right to litigate the issues arising from their Review Petition and the acceptance of the Claimant’s expanded work-related diagnosis.

Both Berkshire and SWIF presented medical evidence on the issue of whether the Claimant’s work-related diagnosis should be expanded to include an aggravation injury to the lumbar spine. After careful consideration, the WCJ credited Berkshire’s medical expert and found that the motor vehicle accident caused an aggravation of the Claimant’s spinal condition. 

As such, the WCJ found that the June 2, 2021 surgery was work-related. Because the Judge had ruled that the medical diagnosis should be expanded to include the lumbar condition, it was also ordered that SWIF was equally responsible for payment of all medical/indemnity benefits which were attributable to the expanded diagnosis. SWIF was ordered to reimburse Berkshire for 50% of all paid medical and indemnity benefits (less SWIF’s limited initial payments).

On Appeal SWIF argued: 

1. The WCJ failed to make the required finding that Berkshire’s amended NCP, which still listed only a “skull contusion” was “materially incorrect” under Section 413(a) of the Workers Compensation Act.
2. Berkshire should be barred from expanding the injury as they had ample time to investigate the claim before issuing the Amended NTCP.
3. The WCJ failed to issue a “reasoned decision,” because he did not specifically articulate why the amended NCP was incorrect; and
4. The Court’s recent decision in Reading Anthracite should preclude Berkshire from modifying its NCP after a delayed investigation.

Both the WCAB and the Commonwealth Court disagreed with SWIF’s arguments and upheld the WCJ’s decision. 

Writing on behalf of the majority, Judge Patricia McCoullough noted that it is well settled that the Act does not explicitly require a WCJ to make a finding that the NCP is “materially incorrect,” before formally amending the description of injury. Judge McCoullough highlighted prior decisions which allow for a WCJ to implicitly amend the work-injury description where doing so is consistent with the overarching findings of non-recovery. See Mino v. WCAB (Crime Prevention Assoc.), 990 A.2d 832 (Pa. Cmwlth. 2010).

The Court noted that, while the WCJ did not formally indicate that he was amending the description of injury contained in Berkshire’s amended NCP, logic dictates that the underlying amended NCP was materially incorrect, inasmuch as it specifically did not include the lumbar diagnosis found to be related by Berkshire’s expert witness. The WCJ made a specific finding that Berkshire sustained its burden of proof to show that the NCP should be amended to include the aggravation injury. This was sufficient in the eyes of the Commonwealth Court and consistent with the requirements of Section 413(a).

The Court also noted that Section 413(a) allows a WCJ to act not only when proof exists that an NCP was materially incorrect, but also “at any time…. Upon petition filed by either party with the Department, upon proof that the disability of an injured employee has increased, decreased, recurred, or has temporarily or finally ceased…”  Thus, it was the Court’s position that the WCJ has the authority to expand the description when proof was presented which demonstrated an increase in the Claimant’s disability (i.e., the additional diagnoses). The WCJ was not restricted to act only when addressing a “materially incorrect” NCP, contrary to SWIF’s reading of Section. 413(a).

SWIF next argued that the recent decision in Reading Anthracite required reversal of the WCJ’s Order. In Reading Anthracite, the Commonwealth Court affirmed the denial of Review and Joinder Petitions filed by a carrier which had mistakenly picked up a claim via NCP, believing it was the proper carrier and later filed Review and Joinder petitions seeking to recoup benefits paid from another employer/carrier. The basis for the Review petition was that there was a mistake with respect to the decedent’s employment relationship at the time the carrier accepted liability.

In the Reading Anthracite matter, both West Spring and Reading Anthracite Company (RAC) conducted coal mining operations. West Spring was insured by Rockwood Casualty and RAC was insured by SWIF. The Claimant in that case was scheduled to be laid off by West Spring; however, RAC needed a bulldozer operator, and the Claimant was instructed to report to RAC to continue working. The Claimant was fatally injured while operating a bulldozer. Following the fatality, Rockwood issued a NTCP acknowledging a fatal claim even though the Claimant was not an employee of West Spring at the time. 

Rockwood later filed Review and Joinder Petitions seeking reimbursement from SWIF based on the material misstatement regarding the Claimant’s employment status. The WCJ denied the Review and Joinder Petitions, finding that West Spring failed to show that there was a material mistake of fact at the time that the NCP was issued, or that there was insufficient time to investigate the claim before issuance of the NCP. 

Similarly, SWIF argued that Berkshire’s failure to investigate the claim before it issued the amended NCP should, as in Reading Anthracite, preclude it from seeking to transfer joint liability to SWIF. The Court disagreed and distinguished the instant case in two respects. 

First, the Court noted that the facts of Reading Anthracite differ from the present facts in that the identity of the correct employer was a fundamental issue in Reading Anthracite. Here, however, both insurers concede that the Claimant is employed by FGS. 

Second, the Court noted that the legal issues are distinguishable in that Rockwood sought to set aside the NCP on the grounds that it contained a “material misstatement of fact” (i.e., the identity of the employer was materially incorrect). As the Court had previously discussed, the instant matter does not seek to expand the description to fix a material misstatement. Rather, the Court found that Berkshire sought to amend the description based on an argument that the Claimant’s condition “evolved” after the NCP was issued. This was information not available to Berkshire at the time the amended NTCP was issued. Accordingly, the Court found that Berkshire’s attempt to amend the description following issuance of the NTCP and the Judge’s acceptance of the amended description were proper under Sections 413(a) and 422(a) of the Act.

This case is a reminder that when dual workers’ compensation coverage exists, even unintentionally, both carriers can end up sharing the bill regardless of who steps up first. The decision also reinforces that an accepted injury description is never set in stone. Under Section 413(a), a WCJ has broad discretion to expand the injury description as the medical picture evolves. With expanding diagnoses and the real risk of exposure beyond the original accepted injury, employers and carriers should be precise when acknowledging injuries and work with their assigned counsel to reduce exposure/expanded diagnoses where possible.

For questions, please contact Edward A. Tobin, Principal in Post & Schell's Workers' Compensation Department at 717-391-4442 or etobin@postschell.com, or the Post & Schell attorney with whom you normally consult.