Appeal from the Order of the Workmen's Compensation Board of Review, in case of Lukens Steel Company v. Commonwealth of Pennsylvania, Bureau of Workers' Compensation, No. A-88340, dated April 4, 1986.
Paul Baker, Assistant Counsel, with him, Wanda A. Whare, Assistant Counsel, for petitioner.
Terry W. Knox, with him, Barbara Schneider Swinger, MacElree, Harvey, Gallagher, O'Donnell & Featherman, Ltd., for respondents.
Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
[ 105 Pa. Commw. Page 422]
In this workmen's compensation case, we are required to decide whether the Workmen's Compensation Supersedeas Fund (Fund), created pursuant to Section 443(b) of The Pennsylvania Workmen's Compensation Act (Act), 77 P.S. § 999(b), must honor a claim by Lukens Steel Company (Employer) for weekly benefits paid Walter D. Arasin (Claimant) during the period of Claimant's default in failing to comply with an order of the Workmen's Compensation Appeal Board (Board) directing that Claimant submit to a medical examination under Section 314 of the Act, 77 P.S. § 651.
The relevant facts and procedural steps in this case are not in issue. Claimant was injured on March 26, 1981, in the course of his employment with Employer. Weekly benefits were paid at the rate of $262.00. A petition for termination was filed by Employer on May 6, 1982, following the petition filed under Section 314 with the Board on April 19, 1982, requesting an order for a physical examination of Claimant, which order was entered by the Board on July 19, 1982. Thereafter, a date for the examination was fixed, July 28, 1982, which scheduled appointment was not kept by Claimant. A hearing on the Termination Petition was noticed for October 7, 1982, at which Claimant failed to appear, whereupon the referee terminated compensation "in accordance with Section 314 of the Workmen's Compensation Act."*fn1
[ 105 Pa. Commw. Page 423]
On appeal, in an opinion under date of September 2, 1983, the Board amended the referee's termination order to one for suspension, stating:
Section 314 states in part, 'The refusal or neglect without reasonable cause or excuse of the employe to submit to such examination ordered by the board, either before or after an agreement or award, shall deprive him of the right to compensation, under this article, during the continuance of such refusal or neglect.'
We would normally affirm the decision of the referee based on facts before us, however, a termination petition still exists and has not been adjudicated. Therefore, the decision of the referee will be amended to a suspension of benefits as of July 28, 1982, rather than be terminated. The appeal by the claimant is dismissed. The claimant does have the option of availing himself to a physical examination outlined in this board's order, dated July 19, 1982.
Board Decision (9/2/83) at 2.
On or about November 26, 1982,*fn2 the Employer made application for Supersedeas Fund Reimbursement in the amount of $2,620.00, paid during the period from July 28, 1982 to October 5, 1982, which petition was granted by the referee in an opinion under date of May 17, 1984. On appeal to ...