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COMMONWEALTH PENNSYLVANIA v. WORKMEN'S COMPENSATION APPEAL BOARD (ALLSTATE INSURANCE COMPANY) (04/25/86)

decided: April 25, 1986.

COMMONWEALTH OF PENNSYLVANIA, BUREAU OF WORKER'S COMPENSATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ALLSTATE INSURANCE COMPANY), RESPONDENT



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Allstate Insurance Company v. Commonwealth of Pennsylvania, No. A-85740.

COUNSEL

Thomas D. Gould, Acting Deputy Chief Counsel, for petitioner.

Thomas R. Bond, LaBrum & Doak, for respondents.

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

Author: Macphail

[ 96 Pa. Commw. Page 567]

The Department of Labor and Industry (Department) appeals from an order of the Workmen's Compensation Appeal Board (Board) permitting Allstate Insurance Company (Respondent) to receive reimbursement from the Supersedeas Fund (Fund) pursuant to Section 443 of The Pennsylvania Workmen's Compensation Act (Act).*fn1 We will affirm.

The procedural history of this case is rather complex. On October 31, 1972, Joann F. Jarasitz (Claimant) suffered a work-related injury for which Respondent made partial disability payments pursuant to a notice of compensation payable. On April 19, 1973, Claimant and her employer, Airport Services, Inc., entered into a

[ 96 Pa. Commw. Page 568]

    supplemental agreement suspending benefits because Claimant had returned to employment with no loss of earning power. On August 28, 1973, a further supplemental agreement was entered into under which compensation was resumed for an indefinite period owing to the fact that Claimant again became partially disabled as a result of the original work-related injury. On December 1, 1975, Respondent filed a petition to terminate workmen's compensation benefits. On February 27, 1976, Respondent also filed a petition alleging that the supplemental agreement of August 28, 1973 was incorrect in a material respect in that any disability Claimant was then suffering was owing to a pre-existing condition not related to her employment.

Hearings on both petitions were held on July 13, 1976 before a referee, at which time Respondent orally requested a supersedeas. The referee denied that request and ordered Respondent to continue making payments to Claimant "pending final determination of Defendant's Termination Petition." Thereafter, on May 20, 1977, the referee issued a decision suspending Claimant's benefits effective February 11, 1974. Claimant appealed and the Board remanded the case to the referee for further findings on the question of job availability. On May 29, 1981, the referee, on the basis of stipulations of the parties,*fn2 again suspended benefits. No appeal was taken from that order.

[ 96 Pa. Commw. Page 569]

Respondent subsequently filed an application for reimbursement from the Fund. In a decision of March 2, 1983, the referee ordered that Respondent be reimbursed from the Fund for payments of $50.67 per week from July 13, 1976 to April 9, 1981, for a total amount of $12,529.97.*fn3 The Board affirmed the referee's decision and this appeal followed.

The Department contends that reimbursement should be denied inasmuch as the referee erred in his decision of May 29, 1981, in which he again suspended benefits. The Department alleges that the decision was based upon unsubstantiated stipulations of the parties and, therefore, is somehow suspect. We must reject the Department's contention because the correctness or "the validity of the underlying decision on the termination petition is not before us for review. . . . [T]he only issue properly before us is whether the referee and the Board correctly calculated the reimbursement due based on the referee's unappealed order in the termination proceeding." ...


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