Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Michael A. Himes v. D.P. "Herk" Zimmerman, Jr., Inc., No. A-89422.
David M. McCloskey, Will, Keisling, Ganassi & McCloskey, for petitioners.
James R. Huff, II, Sullivan, Forr & Stokan, for respondent, Michael A. Himes.
Lawrence J. Baldasare, Meyer, Darragh, Buckler, Bebenek & Eck, for respondent, Prudential Insurance Company.
President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.
[ 103 Pa. Commw. Page 69]
Employer, D.P. "Herk" Zimmerman, Jr., Inc. (Zimmerman) and its insurance carrier, Federal Kemper Insurance Co. (Kemper), appeal the decision of the Workmen's Compensation Appeal Board (Board) which reinstated workmen's compensation benefits to the claimant, Michael A. Himes. Petitioners, Zimmerman and Kemper, also contest the Board's award to the no-fault insurance carrier and intervenor, Prudential Insurance Company (Prudential), of a $5,128.55 reimbursement for no-fault work loss and medical payments on and after June 14, 1983. In addition, petitioners contend that claimant is not entitled to attorney's fees and costs. We affirm the reinstatement of compensation for total disability and the reimbursement for no-fault payments
[ 103 Pa. Commw. Page 70]
to Prudential. We will not consider claimant's claim for attorney's fees as it was not raised below and is therefore waived.
Claimant worked for Zimmerman as a laborer. On June 3, 1980, he suffered a low back injury in a work-related accident for which he received total disability. On October 11, 1980, he was involved in a nonwork-related automobile accident in which he reinjured his low back, as well as injuring the cervical area, for which he received treatment. On November 1, 1980, following a hearing, claimant's compensation was terminated. In April 1982, he underwent surgery involving a decompression laminectomy for spinal stenosis. In September 1982, claimant stated that he no longer suffered pain in his upper back, but he continued to have pain in his low back and right leg.
On July 12, 1982, claimant filed the present petition for reinstatement of compensation for total disability due to his original work-related injury of June 3, 1980. Meanwhile, although experiencing discomfort, he started to work in October 1982 as a carpenter for another employer, but stopped in April 1983 because his legs began to collapse and he could no longer perform his duties. In June 1983, he was hospitalized.
After claimant's work benefits were terminated, he received from Prudential Insurance Co. a total of $15,000 in work loss benefits as a result of the nonwork-related automobile accident, pursuant to section 106 of the Pennsylvania No-Fault Motor Vehicle Insurance Act (Act) of July 19, 1974, as amended, formerly 40 P.S. § 1009.106, repealed by Act of February 12, 1984, P.L. 26, No. 11. He also received a total of $11,946.65 for medical bills, plus a $25,000 settlement ...