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COMMONWEALTH PENNSYLVANIA v. WORKMEN'S COMPENSATION APPEAL BOARD (INSURANCE COMPANY NORTH AMERICA) (10/28/86)

decided: October 28, 1986.

COMMONWEALTH OF PENNSYLVANIA, BUREAU OF WORKERS' COMPENSATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (INSURANCE COMPANY OF NORTH AMERICA), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Insurance Company of North America v. Commonwealth of Pennsylvania, Bureau of Workers' Compensation, No. A-87835.

COUNSEL

Paul E. Baker, Assistant Counsel, for petitioner.

Charles S. Katz, Jr., Swartz, Campbell & Detweiler, for respondent, Insurance Company of North America.

Judges MacPhail and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge MacPhail dissents.

Author: Barbieri

[ 101 Pa. Commw. Page 553]

The Bureau of Workers' Compensation on behalf of the Department of Labor and Industry of the Commonwealth of Pennsylvania (Petitioner) appeals here an order of the Workmen's Compensation Appeal Board (Board) which affirmed and amended an order of the referee granting an Application for Supersedeas Fund Reimbursement filed by the Insurance Company of North America (INA). The Board amended the date from which reimbursement had been granted by the referee. We will modify the Board's order and remand for recomputation of reimbursement.

The procedural facts are basically undisputed. Wanda Pannell (Claimant) suffered a work-related injury to her left leg on June 24, 1981 for which compensation was paid by INA under a Notice of Compensation Payable. There was no contest until December 29, 1981, when INA filed its Suspension Petition claiming that Claimant was capable of returning to work as of December 7, 1981, and requesting also in that petition that a supersedeas be granted. The request for supersedeas was denied. Eight hearings were held on the suspension petition, the last of which was on March 1, 1983, after which a hearing was scheduled for April 8, 1983. On April 1, 1983 Claimant's counsel directed a letter to the referee stating that the Claimant "agrees to a finding in favor of Colonial Penn as of the date of the

[ 101 Pa. Commw. Page 554]

    hearing." Although the hearing referred to in the letter from Claimant's counsel could not possibly have been one other than the one then listed for April 8, 1983, the referee entered an order on April 6, 1983 granting the suspension as of December 7, 1981. At the hearing on April 8, 1983, the sole evidence offered consisted of a note from Claimant's treating physician indicating that she was able to return to work as of February 21, 1983 upon which INA's counsel then stated a "renewed request for Supersedeas, and that Supersedeas be granted as of February 21, 1983," whereupon the referee stated of record "[s]upersedeas is granted as of February 21, 1983."

On May 16, 1983, INA filed an Application for Supersedeas Fund Reimbursement requesting of the Workmen's Compensation Supersedeas Fund (Fund) reimbursement in the amount of $11,293.93, representing $158.75 per week for the period between December 7, 1981 and April 18, 1983. This petition was granted as requested in a decision dated February 9, 1984. On appeal by the Fund, the Board affirmed the referee, but amended his decision by providing that the period of reimbursement must commence December 29, 1981, the date INA filed its Suspension Petition, rather than December 7, 1981.

Petitioner contends here that under Section 443 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. ยง 999, INA is not entitled to reimbursement. Section 443 reads in pertinent part:

[ 101 Pa. Commw. Page 555]

(a) If, in any case in which a supersedeas has been requested and denied under the provisions of Section 413 . . . , payments of compensation are made as a result thereof and upon the final outcome of the proceedings, it is determined Page 555} that such compensation was not, in fact, payable, the insurer who has made such payments shall be reimbursed therefor. (Emphasis added.)

Section 443(b) contains the following language:

(b) There is hereby established a special fund in the State Treasury, . . . to be known as the Workmen's Compensation Supersedeas Fund. The purpose of this fund shall be to provide moneys for payments pursuant to subsection (a), . . . . The department shall be charged with the maintenance and conservation of this fund. (Emphasis added.)

By the plain language of Section 443(a), as quoted, the following criteria are established by the ...


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