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WESTMORELAND CASUALTY COMPANY v. COMMONWEALTH PENNSYLVANIA (11/25/77)

decided: November 25, 1977.

WESTMORELAND CASUALTY COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS. COMMONWEALTH OF PENNSYLVANIA AND DEPARTMENT OF LABOR AND INDUSTRY, PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND WESTMORELAND CASUALTY COMPANY, RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in case of Michael Miscovich v. Jane Coal Company, Inc. and Oak Run Coal Company, Inc. and Commonwealth of Pennsylvania, No. A-71513.

COUNSEL

H. Reginald Benden, Jr., with him Stewart, Belden, Sensenich and Herrington, for Westmoreland Casualty Company.

Mary Ellen Krober, Assistant Attorney General, for Department of Labor and Industry.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 32 Pa. Commw. Page 493]

We have before us the consolidated cross-appeals of the Commonwealth and Westmoreland Casualty Company (Insurer) from the decision of the Workmen's Compensation Appeal Board (Board) in the matter of Insurer's Application for Supersedeas Fund Reimbursement pursuant to Section 443 of The Pennsylvania Workmen's Compensation Act.*fn1 At issue is the date from which the reimbursement commences.

Following an injury to Michael Miscovich on April 2, 1973, his employers, Jane Coal Company, Inc., and Oak Run Coal Company, Inc., and the Insurer filed a Notice of Compensation Payable, under which payments were made to Miscovich for approximately

[ 32 Pa. Commw. Page 494]

    seven months. On December 19, 1973, following an examination by the Insurer's doctor, which convinced the doctor that Miscovich had fully recovered, the Insurer summarily stopped making payments.*fn2 On February 8, 1974, the Insurer filed a Termination Petition with the Bureau of Occupational Injury and Disease Compensation of the Department of Labor and Industry and requested a supersedeas pursuant to Section 413 of the Act, 77 P.S. § 774. That section states:

[ 32 Pa. Commw. Page 495]

The filing of a petition to terminate or modify a notice of compensation payable or a compensation agreement or award as provided in this section shall operate as a supersedeas, and shall suspend the payment of compensation fixed in the agreement or by the award, in whole or to such extent as the facts alleged in the petition would, if proved, require only when such petition alleges that the employe has returned to work at his prior or increased earnings or where the petition alleges that the employe has fully recovered and is accompanied by an affidavit of a physician on a form prescribed by the department to that effect which is based upon an examination made within fifteen days of the filing of the petition. In any other case, a petition to terminate or modify a compensation agreement or other payment arrangement or award as provided in this section shall not automatically operate as a supersedeas but may be designated as a request for a supersedeas, which may then be granted at Page 495} the discretion of the referee hearing the case. A supersedeas shall serve to suspend the payment of compensation in whole or to such extent as the facts alleged in the petition would, if proved, require. The referee hearing the case shall rule on the request for a supersedeas as soon as possible and may approve the request if proof of a change in medical status, or proof of any other fact which would serve to modify or terminate payment of compensation is submitted with the petition. The referee hearing the case may consider any other fact which he deems to be relevant when making the decision on the supersedeas request and the decision shall not be appealable. (Emphasis added.)

A hearing was held before Referee Joseph E. Kovach on April 16, at which time the Insurer's doctor testified that Miscovich had recovered. Referee Kovach orally denied the request for supersedeas and continued the case for the submission of the employe's medical evidence. Insurer then resumed payment and made retroactive payments to December 19, 1973. On April 4, 1976, about a year after the first hearing, with no medical testimony having been received from the employe, the referee rendered his decision wherein he found that claimant's disability had ceased on December 19, 1973, and granted the Petition for Termination, Request for Supersedeas "as of December 19, 1973." The referee then ordered the Commonwealth to reimburse Insurer for compensation paid to claimant after December 19, 1973, pursuant to Section 443(a) of the Act, 77 P.S. § 999(a), which states, in pertinent part:

If, in any case in which a supersedeas has been requested and denied under the provisions of section 413 . . ...


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