Appeal from the Order of the Workmen's Compensation Appeal Board in case of Domenic A. Tropiano v. Vare Brothers, No. A-73885.
Joseph J. Murphy, with him, of counsel, Robert J. Murphy, and Thomas W. Murphy, for petitioner.
James C. Everett, with him Herbert Monheit and Tod I. Mammuth, for respondent.
Judges Crumlish, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.
[ 43 Pa. Commw. Page 583]
This is an appeal by Vare Brothers (employer) and its insurance carrier, The Travelers Insurance Company from an order of the Workmen's Compensation Appeal Board (Board) which reversed the referee's grant to the employer of subrogation rights and suspension of benefit payments.
Domenic A. Tropiano (employee) suffered a work-related injury on April 22, 1964. As a result, a Compensation Agreement was executed which provided for compensation for total disability. In 1965 the employer filed a petition for termination which was dismissed by the referee, and the decision was affirmed on appeal by the Board and by the court of common pleas. In 1968, the employer filed a second petition for termination which was dismissed by the referee and this decision was again affirmed by the Board which affirmed a finding of fact that all of the claimant's disability was related to the April 22, 1964 accident.
Prior to the filing of the second termination petition by the employer, the employee filed a civil action
[ 43 Pa. Commw. Page 584]
based on the alleged medical malpractice committed during the course of his treatment for the injuries received in the April 22, 1964 accident. In that action, the Travelers Insurance Company and The Travelers Indemnity Company were named as defendants, and they moved for judgment on the pleadings on the grounds that they were immune from common-law tort liability under The Pennsylvania Workmen's Compensation Act (Act).*fn1 The court of common pleas found in their favor and the Superior Court affirmed. The Supreme Court, however, reversed, finding that the injuries for which the employee was seeking recovery did not arise in the course of his employment and therefore that the insurance carrier could not avail itself of the immunity afforded by the Act. The employer then filed a petition for suspension of benefit payments contending that it was entitled to subrogation rights because the employee had obtained a third-party settlement from the defendants in the malpractice action. After a hearing on this petition, but prior to rendering his decision, the referee granted the employer's request for supersedeas on the grounds that the employee had refused to submit to a medical examination. Then, on August 31, 1977, the referee issued his order after making the following findings of fact and conclusions of law:
1. Defendant filed a Petition for Termination alleging that as a result of a third party settlement, Claimant's compensation should be terminated under the ...