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PENNSYLVANIA MACARONI CO. v. COMMONWEALTH PENNSYLVANIA (06/12/78)

decided: June 12, 1978.

PENNSYLVANIA MACARONI CO., INC. AND LIBERTY MUTUAL INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ROGER CAHILL, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Roger Cahill v. Pennsylvania Macaroni Co., Inc. and Commonwealth of Pennsylvania, No. A-71920.

COUNSEL

Clem R. Kyle, for appellants.

Sandra Christianson, Assistant Attorney General, with her Mary Ellen Krober, Assistant Attorney General, and James N. Diefenderfer, for respondents.

Judges Mencer, Rogers and DiSalle, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 36 Pa. Commw. Page 268]

This case involves a petition for review of an order of the Workmen's Compensation Appeal Board (Board) dated December 9, 1976, reversing a referee's decision granting reimbursement to the Liberty Mutual Insurance Company (Insurer) from the Workmen's Compensation Supersedeas Fund for payments made to Roger Cahill (Cahill) pursuant to a petition to terminate and request for supersedeas. We will reverse.

Cahill was injured on May 10, 1971, while employed by the Pennsylvania Macaroni Company. As a result of this injury, an agreement for compensation was entered into by the parties which provided for payment to Cahill for total disability at the rate of $60.00 per week beginning May 11, 1971. Cahill subsequently returned to work on August 16, 1971. After suffering a recurrence of his original injury on September 18,

[ 36 Pa. Commw. Page 2691971]

, however, he again was placed on compensation for total disability.

On August 4, 1972, the Insurer filed a petition for termination of compensation. It was alleged in the petition that Cahill was able to return to his regular work on June 22, 1972, without loss of earnings and without disability. At the same time, it also requested that a supersedeas be granted effective June 22, 1972. An examining physician's report was submitted in support of both the petition for termination and request for supersedeas.

The record shows that the hearing on the petition for termination was continued on three different occasions: October 3, 1972, December 19, 1972, and February 14, 1973. The continuances were necessitated each time by Cahill's appearance without counsel and without medical testimony in support of the averments set forth in his answer to the petition for termination. In the meantime, despite the urging of the Insurer, the referee failed to act upon its request for supersedeas. Consequently, the Insurer, apparently of its own accord, ceased making compensation payments to Cahill on December 9, 1972.

A hearing on the petition for termination was finally conducted on April 4, 1973. Upon consideration of the evidence presented at this hearing the referee granted the petition effective June 22, 1972. This decision was not appealed. Thereafter, the Insurer applied for reimbursement for overpayment of compensation to Cahill for the period June 22, 1972, through December 9, 1972. This represented 24 3/7 weeks compensation at the rate of $60.00 per week in the total amount of $1,465.71. Following a hearing and presentation by the ...


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