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DONALD B. KELLY v. WORKMEN'S COMPENSATION APPEAL BOARD (A-P-A TRANSPORT CORPORATION) (07/02/87)

decided: July 2, 1987.

DONALD B. KELLY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (A-P-A TRANSPORT CORPORATION), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Donald B. Kelly v. A-P-A Transport Corporation, No. A-88777.

COUNSEL

William Watt Campbell, for petitioner.

Robert M. Frankhouser, Jr., with him, William C. McCarty and Michael W. Babic, Hartman, Underhill & Brubaker, for appellee, A-P-A Transport Corporation.

Judges Barry and Palladino (p), and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 107 Pa. Commw. Page 224]

Donald B. Kelly (claimant) appeals an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's determination that A-P-A Transport Corporation (employer) is entitled to a subrogation interest in the amount of $27,500.00.

It is undisputed that claimant suffered a work-related injury in 1980 for which he received benefits and that these benefits were properly terminated as of April 27, 1983.*fn1 It is also undisputed that in 1982 claimant settled a third party suit stemming from the same work-related incident. The question which we must decide is whether the employer is entitled to subrogation under the facts of this case.

Section 319 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 671 provides in pertinent part:

Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer; reasonable attorney's fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employe, his personal representative, his estate or his dependents.

Claimant argues that the employer is not entitled to subrogation because it failed to act in an equitable manner and he seeks a remand so that a hearing can be held

[ 107 Pa. Commw. Page 225]

    on this issue. Claimant's request is without merit because our review of the record, reveals that this issue was raised before the referee and, that claimant's attorney was given the opportunity to list all of the reasons why the employer should not be entitled to subrogation. The attorney listed the following reasons:

THE REFEREE: I am now requesting that you give me whatever argument and/or fact situation you believe exists which entitles ...


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