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RAYMOND EUGENE HEISER v. WORKMEN'S COMPENSATION APPEAL BOARD (WESTMORELAND CASUALTY CO.) (03/04/86)

decided: March 4, 1986.

RAYMOND EUGENE HEISER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WESTMORELAND CASUALTY CO.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Raymond Eugene Heiser v. R.A.N. Trucking Company, No. A-88130.

COUNSEL

P. Nelson Alexander, for petitioner.

Stewart A. Karn, Meyer, Darragh, Buckler, Bebenek & Eck, for respondent, Westmoreland Casualty Company.

Judges Rogers and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 95 Pa. Commw. Page 350]

Raymond Heiser (claimant) has filed a petition for review of an order of the Workmen's Compensation Appeal Board (board) affirming a referee's determination that pursuant to Section 319 of The Pennsylvania Workmen's Compensation Act (Act), Act of

[ 95 Pa. Commw. Page 351]

June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 671, the Westmoreland Casualty Company (carrier) was entitled to a subrogation credit against the payment of future compensation benefits and to a suspension of benefits for the balance of the credit from funds recouped by the claimant in settlement in a personal injury suit.

While in the course of his employment for R.A.N. Trucking Company (employer) on August 10, 1979, the claimant was involved in a motor vehicle accident with another vehicle driven by Edward Graafsma and was injured. Pursuant to a notice of compensation payable, the claimant received total disability benefits of $227 each week beginning August 17, 1979.

The claimant filed a suit against the person who was allegedly responsible for the injuries which he received on August 10, 1979, and he obtained a settlement of $100,000.

The carrier states in its brief that the claimant took the position that the carrier was not entitled to any of the money and refused to pay any. The carrier further states that "as a matter of self-help," it suspended payment of workmen's compensation benefits to the claimant on August 15, 1983, and on August 23, 1983, the carrier filed a petition to review the notice of compensation payable, requesting a suspension of benefits for the overpayment of compensation and a supersedeas effective immediately.

There was no evidentiary hearing. The referee scheduled a hearing but it was not held because the claimant's counsel had trouble with his automobile and could not get to the hearing. The parties submitted the case on documents furnished by the claimant.

The referee made the following findings of fact:

1. On August 23, 1983, the defendant and its insurance carrier filed Review Petition 211-26-4053 requesting supersedeas and suspension

[ 95 Pa. Commw. Page 352]

    of compensation benefits, based on a third party liability action in which the claimant received $100,000.00. The Claimant filed responsive Answer.

2. On August 10, 1979, the claimant was in the employ of the defendant earning an average ...


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