Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Commercial Union Insurance Company v. Commonwealth of Pennsylvania, Bureau of Workers' Compensation, No. A-82424.
Wanda Whare, Assistant Counsel, with her, Vatche Kaloustian, Assistant Counsel, for petitioner.
Martin J. Fallon, Jr., Swartz, Campbell & Detweiler, for respondents.
Judges MacPhail and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Concurring Opinion by Judge MacPhail.
[ 97 Pa. Commw. Page 521]
Before this Court is the Department of Labor and Industry of the Commonwealth of Pennsylvania in its capacity as custodian of the Workmen's Compensation Supersedeas Fund (Fund) under Section 443 of The Pennsylvania Workmen's Compensation Act, (Act),*fn1 seeking review of an order of the Workmen's Compensation Appeal Board (Board). The order reversed a referee's denial of reimbursement from the Fund for compensation allegedly overpaid by Commercial Union Insurance Company, Respondent, a workmen's compensation insurer of Fox Warehousing, employer of Gary Palmer, Claimant.
[ 97 Pa. Commw. Page 522]
Gary Palmer was paid workmen's compensation benefits at the rate of $171.00 for low back injuries sustained on October 20, 1975 in the course of his employment with Fox Warehousing. The Insurer petitioned on October 18, 1978 for a suspension of benefits on the ground that
Claimant recovered from injury of October 20, 1975 to the extent that by May 2, 1978 he was able to return to employment that has been determined to be available, and therefore defendant seeks suspension of compensation benefits designating instant petition as request for supersedeas.
Claimant filed answer under date of October 30, 1978, denying the Insurer's allegations as follows:
Claimant has not recovered from his injury of October 20, 1975 to the extent that he has been unable to return to any available employment.
In hearings held on Insurer's petition and the Claimant's answer thereto, it was established that Claimant had suffered a disc herniation, demonstrated by myelogram, as "almost complete block at the L5-6 area."*fn2 Surgery on December 5, 1975 was unsuccessful in that Claimant remained disabled for all except light duties.*fn3 The record establishes that such light work was unavailable to Claimant who testified to twenty-three attempts at securing such light work without success.
Supersedeas requested in the petition of October 18, 1978 was denied and at a referee's hearing on April 23, 1979 a renewed request for supersedeas was made,
[ 97 Pa. Commw. Page 523]
but at a subsequent hearing on September 24, 1979, supersedeas was again denied. It was the hearing of September 24, 1979 at which the Claimant's incapacity to obtain available ...