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WILBUR P. TYSON v. COMMONWEALTH PENNSYLVANIA (06/18/82)

decided: June 18, 1982.

WILBUR P. TYSON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, CITY OF CHESTER AND PENNSYLVANIA MANUFACTURER'S ASSOCIATION INSURANCE, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Wilbur P. Tyson v. City of Chester, No. A-77407.

COUNSEL

Randee B. Pavalow, with him Michael A. Paul, Richard, Brian, DiSanti & Hamilton, for petitioner.

Robert C. Geller, Jr., with him Patrice Toland, for respondents.

Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge Mencer did not participate in the decision of this case. Concurring Opinion by Judge MacPhail.

Author: Doyle

[ 67 Pa. Commw. Page 214]

The issue presented in this appeal is whether the Workmen's Compensation Appeal Board properly applied the law concerning an employer's right to subrogate a claimant's workmen's compensation benefits when those benefits are awarded after the employer's payment of full salary pursuant to Section 1 of the Act of June 28, 1935, (Heart and Lung Act), P.L. 477, as amended, 53 P.S. ยง 637. For the reasons which follow, we reverse the decision of the Workmen's Compensation Appeal Board (Board).

Wilbur P. Tyson (Claimant), a police officer for the City of Chester (Employer), received a gunshot wound of the chest while investigating a burglary on March 7, 1976. Following his injury, Claimant was absent from work for three separate periods. During each of these absences, the Claimant's method and amount of compensation varied. From March 7, 1976 to April 20, 1976, Claimant received both full pay from his Employer, under the Heart and Lung Act, and workmen's compensation benefits. The employer was subrogated to the payments for workmen's compensation. From February 21, 1977 to August 1, 1977, Claimant again received full pay from his employer under the Heart and Lung Act; however, no workmen's compensation benefits were paid for this period since Claimant had executed a final receipt. During

[ 67 Pa. Commw. Page 215]

    the third period of absence (January 27, 1978 to April 25, 1978), Employer refused to continue payment of Claimant's salary, contending that Claimant was no longer disabled as a result of the gunshot wound. Consequently, Claimant was compelled to use his accumulated sick leave. Claimant did not receive workmen's compensation benefits during this period of absence.

Following a hearing to determine Claimant's eligibility for workmen's compensation benefits for the latter two periods of absence, the referee found that Claimant's disability continued despite his execution of a final receipt. Having determined that all disability had not terminated at the time the receipt was signed, the referee set aside the final receipt and awarded compensation benefits for the second and third periods of absence. American Chain & Cable Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 574, 391 A.2d 50 (1978).

Pennsylvania Manufacturers Association Insurance Company, Employer's insurance carrier, appealed from the order of the referee. At this appeal, Employer sought to establish its right to subrogation. In a well reasoned opinion, the Board affirmed the order of the referee and, in addition, ordered the insurance carrier to pay Employer, as subrogee, the compensation benefits which were due to the Claimant. Subsequently, the insurance carrier petitioned, and was granted, a rehearing before the Board. At this hearing, the insurance carrier sought to recover a credit for payments made to the Claimant by Employer under the Heart and Lung Act. In its decision, the Board amended the referee's order by providing a credit to the insurance carrier for the salary paid by the Employer during the Claimant's second period of absence.

The application of a credit in favor of their insurance carrier, as a result of ...


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