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ARGONAUT INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (KRAJOVIC) (02/04/86)

decided: February 4, 1986.

ARGONAUT INSURANCE COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (KRAJOVIC), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of William Krajovic v. Signal Delivery Service, No. A-79669.

COUNSEL

Thomas A. Wood, with him, James A. Wood, Trushel, Wood & Israel, for petitioner.

Paul A. Baker, with him, Henry A. Riley, Assistant Counsel, for respondents.

Judges MacPhail and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 94 Pa. Commw. Page 605]

This is an appeal by Argonaut Insurance Company (Argonaut) from an order of the Workmen's Compensation Appeal Board (Board) reversing a referee's decision which awarded Argonaut reimbursement from the Workmen's Compensation Supersedeas Fund (Fund), for attorney's fees pursuant to Section 443 of The Pennsylvania Workmen's Compensation Act*fn1 (Act), 77 P.S. § 999. The attorney's fees had been paid by Argonaut pursuant to an earlier order which arose in the context of the litigation in this case. The procedural morass engendered by this case is indeed unfortunate, but, a lengthy recital of the prior proceedings is not necessary. Suffice it to say that William Krajovic was found to have sustained a compensable injury and was awarded compensation plus, inter alia, attorney's fees by the referee. The Board later determined that the award of attorney's fees was inappropriate and reversed this portion of the referee's award. Argonaut, which had already paid said fees pursuant to the referee's order, sought reimbursement

[ 94 Pa. Commw. Page 606]

    from the Fund, and the referee granted the request.

On appeal, the Board in a September 29, 1983 order reversed the referee and denied the reimbursement. The Board wrote:

Section 443 of the Workmen's Compensation Act, 77 P.S. § 999 provides that reimbursement of overpayment of compensation may be granted in any case in which a supersedeas has been requested and denied if payments are made as the result thereof and it is finally determined that compensation was not in fact payable. After a careful review of the record in this matter, we find no evidence, other than the allegations contained in Argonaut's Petition, that the employer ever requested a supersedeas or that the request for supersedeas was denied by the Referee. Under these circumstances, it is clear that the Referee's subsequent Decision granting Argonaut reimbursement is not supported by competent evidence. In any event, this Board, not the Referee, is the proper forum to submit a supersedeas request. Since there was no authority for Referee Darkins to indulge such a request, assuming he ever did, such action lacks authority and we deem it moot. The Referee could not thereafter grant employer's later application for Supersedeas Fund Reimbursement.

Argonaut petitioned for rehearing maintaining that it had requested a supersedeas and that the Board, by order dated October 16, 1980, had denied the supersedeas. Copies of these documents were attached to the petition for rehearing. For reasons this Court cannot fathom the Board took no action on this petition and it now lacks the power to do so inasmuch as more than eighteen months have passed since the

[ 94 Pa. Commw. Page 607]

Board's order of September 29, 1983 was entered. See Section 426 of the Act, 77 P.S. § 871; Boyce v. Workmen's Compensation Appeal Board (Penn State Services), 91 Pa. Commonwealth Ct. 389, 497 A.2d 280 (1985). Thus, the appeal to this Court is only from the ...


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