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FREDERICK H. HOLGATE v. WORKMEN'S COMPENSATION APPEAL BOARD (CITY PHILADELPHIA) (02/17/87)

decided: February 17, 1987.

FREDERICK H. HOLGATE, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CITY OF PHILADELPHIA), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Frederick H. Holgate v. City of Philadelphia, No. A-86523.

COUNSEL

Michael Anthony De Fino, for petitioner.

Carlton L. Johnson, with him, Michael David Eiss, for respondent, City of Philadelphia.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 104 Pa. Commw. Page 33]

Frederick H. Holgate (Petitioner) has filed a petition for review in which the sole issue raised is whether the Workmen's Compensation Appeal Board (Board) and referee correctly decided that the Police and Fire Medical Association (Association) has no subrogation rights under Section 319 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. § 671. We vacate and remand.

Petitioner, who worked for twenty-six years for the City of Philadelphia (Employer) as a fire fighter, filed a claim petition for compensation on December 2, 1982 in which he alleged that he was disabled by an occupational disease under Section 108(o) of the Act, 77 P.S. § 27.1(o). Following a hearing on the petition, a supplemental agreement was entered in which it was agreed that Petitioner became partially disabled due to a work-related lung condition on October 30, 1982. The agreement further provided that "the referee is to determine defendant's [Employer's] liability, if any, for payment of the Police and Fire Medical Association bill in the amount of $1,785.00." It is undisputed that the $1,785.00 bill represents charges paid by the Association for in-patient care of Petitioner at John F. Kennedy Memorial Hospital from October 31, 1982 through November 2, 1982. Employer's Brief at 3.

Without conducting a further evidentiary hearing, the referee subsequently rendered a decision denying the Association's subrogation claim. The referee's pertinent fact findings were as follows:

3. Still at issue for the Referee's decision as noted in the Supplemental Agreement, is the subrogation claim of the Police and Fire Medical

[ 104 Pa. Commw. Page 34]

Association, an adjunct of the Firemen's union, for medical services in the amount of $1,785.00.

4. The referee finds that said association does not have the rights [sic] of subrogation under the provisions of Section 319 of the Act, since it is neither the employer nor an insurance Carrier. See Workmen's Compensation Appeal Board and ...


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