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ALBERT R. SWINK v. WORKMEN'S COMPENSATION APPEAL BOARD (BURRELL CONSTRUCTION & SUPPLY CO. AND BITUMINOUS INSURANCE COMPANIES) (06/04/86)

decided: June 4, 1986.

ALBERT R. SWINK, SR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BURRELL CONSTRUCTION & SUPPLY CO. AND BITUMINOUS INSURANCE COMPANIES), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Albert R. Swink, Sr. v. Burrell Construction and Supply Co. and Bituminous Insurance Companies, No. A-84759.

COUNSEL

Donald J. McCue, McCue & Watson, for petitioner.

Robert C. Little, Burns, Manley & Little, P.C., for respondents.

Judges Craig and MacPhail, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 97 Pa. Commw. Page 624]

Albert R. Swink, Sr. (Claimant) appeals an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision which granted the modification petition of Burrell Construction & Supply Company (Employer), thereby permitting Employer to be subrogated to the right of Claimant against a third-party tortfeasor, and which denied Claimant's claim petition. We affirm.

The referee made the following findings of fact, which are supported by the record:

1. The claimant, Albert R. Swink, Sr., was injured in the course and scope of his employment with the Burrell Construction and Supply Company on December 5, 1978.

2. The insurer for Burrell Construction and Supply Company, Bituminous Insurance Companies, commenced payment of compensation at the rate of $213.00 per week and compensation was paid to Mr. Swink for a period of one hundred thirty-seven (137) weeks and the total payment made was in the amount of $29,182.00.

3. The insurance carrier on behalf of the employer paid medical expenses in the amount of $5,111.33.

[ 97 Pa. Commw. Page 6254]

. As a result of the accident in which the claimant was injured, he commenced a suit against Hugo Vannucci and West Penn Power Company in the Court of Common Pleas of Westmoreland County at No. 11785 of 1980.

5. The employer, Burrell Construction and Supply Company, was joined as an Additional Defendant in the suit filed in Westmoreland County; however, it was dismissed as an Additional Defendant by Order of Court dated December 1, 1981.

6. On or about July 1, 1981 Mr. Swink executed a Joint Tortfeasor's Release in favor of the defendant, Hugo Vannucci, in the amount of $100,000.00.

7. Pursuant to a Contingent Fee Agreement between the claimant and his attorneys, McCue & Watson, attorney fees in the amount of $33,300.00 were deducted from the payment of $100,000.00 and in addition thereto, $1,000.00 was deducted as reimbursement of advanced costs ...


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