Appeal from the order of the Workmen's Compensation Appeal Board in case of State Workmen's Insurance Fund v. Commonwealth of Pennsylvania, No. A-85035.
Paul E. Baker, Chief Counsel, with him, Henry A. Riley, Assistant Counsel, for petitioner.
Paul J. Dufallo, Assistant Chief Counsel, for respondent.
Judges Rogers and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Dissenting Opinion by Judge Barry.
[ 98 Pa. Commw. Page 415]
Before us here is a petition of the Commonwealth of Pennsylvania, Bureau of Workers' Compensation, as custodian of the Workmen's Compensation Supersedeas Fund (Fund), requesting review and reversal of an order by the Pennsylvania Workmen's Compensation Appeal Board (Board), granting the request by the State Workmen's Insurance Fund (SWIF) for reimbursement of payments by it of compensation during the pendency before a referee of its request for supersedeas which request was subsequently granted by the referee. The Board in granting SWIF's request for reimbursement reversed the decision of the referee which had denied the request.
Claimant was awarded compensation for an injury of his hand suffered on July 11, 1979 which included the substantial amputation of a portion of a finger. On March 11, 1980, the insurer filed a Petition for Modification alleging that the injury had resolved into a specific loss and requesting a supersedeas. Several requests by the insurer for continuances were granted
[ 98 Pa. Commw. Page 416]
by the referee until a hearing was held on July 16, 1981, as of which date the referee granted the Supersedeas. On May 4, 1982, the referee filed his decision granting modification on the basis that the Claimant had recovered from his injury on November 12, 1980.
On May 14, 1982, the instant request for supersedeas reimbursement was filed, resulting in a decision by the referee dated November 23, 1982, denying reimbursement, apparently on the ground that here the referee had granted the request for supersedeas, concluding as a matter of law that reimbursement was not permissible "because compensation was not paid pursuant to a denial of supersedeas." (Emphasis added.) This was unquestionably based upon the referee's reading of Section 443 of The Pennsylvania Workmen's Compensation Act (Act)*fn1 which provides
If, in any case in which a supersedeas has been requested and denied under the provisions of section 413 or section 430, payments of compensation are made as a result thereof and upon the final outcome of the proceedings, it is determined that such compensation was not, in fact, payable, the insurer who has made such payments shall be reimbursed therefor. (Emphasis added.)
On appeal to the Board, it was argued that, although a supersedeas granted would be the same as a supersedeas denied, nevertheless, denial of reimbursement by the referee was proper, not on the basis on which the referee seemed to have predicated his denial, but on the basis that it was the defendant's delay by continuances it ...