Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Phyllis B. Humphrey v. Supermarket Service, No. A-86449, Remand No. A-80340.
Howard M. Spizer, with him, Paul Philip Ackourey, for petitioner.
Kathleen A. Lenahan, Lenahan and Dempsey, P.C., for intervening respondent, Travelers Insurance Company.
Judges Barry and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.
[ 100 Pa. Commw. Page 34]
Phyllis B. Humphrey, the claimant, appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed a decision of the referee awarding Travelers Insurance Company, the intervening respondent, $9,503.48 as subrogee to certain benefits due the claimant as the result of a work related injury.
In April of 1977, the claimant injured her back while on the job in the employ of Supermarket Service. The employer filed a notice of compensation payable. Shortly thereafter, the employer filed a termination petition, alleging that the claimant had fully recovered. The employer included an affidavit of recovery with the termination petition, acting as an automatic supersedeas. The claimant then filed a claim petition, alleging that she was still totally disabled.
During the time when hearings were being conducted on the matter, certain medical expenses of the claimant were paid by Travelers, which was the sickness and accident carrier for the employer of the claimant's husband. Following all of the hearings, the referee ruled that the claimant had been totally disabled from
[ 100 Pa. Commw. Page 35]
April 14, 1977 until June 28, 1979. The referee further ruled that the claimant was still partially disabled. As part of his award, the referee held that the employer was entitled to a credit for all medical bills which had been paid by Travelers. On appeal, the Board reversed that portion of the award granting the employer a credit and remanded the matter to the referee.
Section 319 of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 671, provides:
Where a compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe . . . against such third party to the extent of the compensation payable under this article by the employer. . . . Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith . . . and shall be treated as an advance payment by the employer on account of future installments of compensation.
Where an employe has received payments for the disability or medical expense resulting from an injury in the course of his employment paid by the employer or an insurance company on the basis that the injury and disability were not compensable under this act in the event of an agreement or award for that injury the employer or the insurance company who made the payments shall be subrogated out of the agreement or award to the amount so paid, if the right to subrogation is agreed to by the parties or is established at the time of hearing before the referee or the board.
Before proceeding further, we believe two points must be discussed to assist in ...