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HARRY C. FRYMIARE v. WORKMEN'S COMPENSATION APPEAL BOARD (D. PILEGGI & SONS) (SECURITY INSURANCE GROUP) (04/20/87)

decided: April 20, 1987.

HARRY C. FRYMIARE, III, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (D. PILEGGI & SONS) (SECURITY INSURANCE GROUP), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Harry C. Frymiare, III v. D. Pileggi & Sons, No. A-88229.

COUNSEL

Leonard V. Tenaglia, Richard, DiSanti, Hamilton, Gallagher & Paul, for petitioner.

Susan McLaughlin, Harvey, Pennington, Herting & Renneisen, Ltd., for respondents.

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

Author: Barbieri

[ 105 Pa. Commw. Page 326]

Before the court in this workmen's compensation case is the appeal of Claimant, Harry C. Frymiare, seeking review of an order of the Workmen's Compensation Appeal Board (Board).

The basic facts are not in dispute. Claimant, a laborer in the employ of D. Pileggi & Sons (Employer), was injured in the course of his employment on February 17, 1983. The obligation to pay compensation by Pileggi's insurer, Security Insurance Group, is undisputed.*fn1 In making an award for disability benefits, however,

[ 105 Pa. Commw. Page 327]

    the referee, while granting Claimant's claim for medical payments paid by him personally in the amount of $379.26, denied the balance of his medical costs in the amount of $9,522.94, on the basis that the latter sum had not been paid by Claimant, but had been paid by a medical plan provided by Claimant's wife's employer, Conrail. Conrail does not seek subrogation for its payments in this proceeding; nevertheless, the referee disallowed Claimant's request for payment of sums paid by Conrail. Also, the referee disallowed interest on compensation benefits as well as on all medical expenses, those paid by the Claimant and those paid by Conrail, this disallowance levied as a penalty against Claimant on finding that he was "less than forthright and cooperative in providing the information as to exactly what he paid as opposed to exactly what was paid by third parties in connection with his medical expenses." Finding of Fact No. 12, and see No. 13. On appeal, the Board affirmed.

The issues before us simply are (1) whether or not Claimant can require payment to him by his Employer for medical bills not paid by him, but paid by his wife's employer, Conrail, under Conrail's plan for which Conrail seeks no reimbursement by subrogation or otherwise, and (2) whether Claimant may properly be penalized by disallowance of interest payments under the circumstances in this case. We cannot agree with the disallowance of medical payments and interest in this case and must reverse as to both items.*fn2

As to the medical payments made by Conrail, the following findings by the referee are pertinent:

[ 105 Pa. Commw. Page 3287]

. In view of the limited period of disability the Defendant then advised the Claimant of its willingness to accept the claim for disability benefits and medical expenses actually incurred. A stipulation was provided to the Claimant's attorney but it was not executed because of the Claimant's contention that he was entitled to direct payment of the full amount of medical expenses even though he had not paid those medical expenses.

9. The Referee finds as fact that the bulk of these medical bills have been paid by a third party, namely Conrail, under a plan of health and accident coverage provided incident to the Claimant's wife's employment.

14. At the hearing on March 8, 1984 the Carrier agreed to reimburse the Claimant for $379.26 of medical expenses which he actually paid.

15. The issue before the Referee is now whether the Claimant should receive the balance of the $8,822.94 representing the total medical bills at issue in the case.*fn3

16. The Referee finds that except for payments by the Claimant and his wife in the amount of $379.26 these bills have been satisfied by payments from Conrail.

17. Conrail has not advised the Referee of its intention to pursue a right of subrogation. The

[ 105 Pa. Commw. Page 329]

Claimant's attorney has not provided evidence that he is authorized to represent Conrail in connection with any potential right to ...


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