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COMMONWEALTH PENNSYLVANIA v. WORKMEN'S COMPENSATION APPEAL BOARD (AMERICAN MOTORISTS INSURANCE COMPANY) (05/20/83)

decided: May 20, 1983.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (AMERICAN MOTORISTS INSURANCE COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of American Motorists Insurance Company v. Commonwealth of Pennsylvania, No. A-80841.

COUNSEL

Henry A. Riley, Assistant Counsel, with him Lisa Roth, Assistant Counsel, for petitioner.

Frank J. Goldenberg, with him Morton H. Kagen, Kagen, Griffith, Strickler, Lerman & Solymos, for respondents.

Judges Rogers, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 74 Pa. Commw. Page 420]

This matter comes before us on appeal by the Commonwealth from an order of the Workmen's Compensation Appeal Board (Board). The Board's order affirmed a referee's decision granting American Motorists Insurance Company (insurer) reimbursement from the Workmen's Compensation Supersedeas Fund

[ 74 Pa. Commw. Page 421]

    pursuant to Section 443(a) of The Pennsylvania Workmen's Compensation Act (Act).*fn1

Claimant Ricky Lee Stahley sustained a work-related injury on May 17, 1977, and thereafter received disability benefits under a compensation agreement. On October 11, 1978, the claimant's employer, Acme Quilting Company/Hanover Industries, filed a petition to terminate the compensation agreement, alleging that the claimant's disability had ceased, and that he had failed to submit to a medical examination as ordered by the Board pursuant to Section 314 of the Act.*fn2 The petition to terminate did not include, and was not expressly designated as, a request for a supersedeas; and no such relief was otherwise requested at the time the petition was filed.

A hearing on the petition was held before the referee on November 3, 1978, at which time the employer introduced into evidence affidavits verifying the claimant's failure to appear for a physical examination pursuant to the Board's order. The claimant, who did not file an answer to the petition to terminate, did not appear in person or by counsel at the hearing. On July 18, 1979, the referee entered an order terminating benefits as of November 3, 1978.

On September 6, 1979 the insurer filed, with the Department of Labor and Industry (Department), an application requesting reimbursement from the Supersedeas Fund. The amount claimed was $3,653.05, representing the sum of benefits paid to claimant from November 3, 1978, the date of the hearing on the petition to terminate, to July 18, 1979, the date on which the referee granted that petition. Following a hearing on the application for reimbursement held on December

[ 74 Pa. Commw. Page 42220]

, 1979, the referee entered an order, dated February 10, 1981, granting the application and directing the Department to reimburse the insurer in the amount requested. The Board affirmed the ...


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