Appeal from the Order of the Workmen's Compensation Appeal Board in case of Richard V. Green v. Fahringer, McCarty & Grey, Inc., A-87458.
Fred C. Trenor, Meyer, Darragh, Buckler, Bebenek & Eck, for petitioners.
John F. Hooper, Meyer, Unkovic & Scott, for respondent.
Judges MacPhail, Doyle, and Barry. President Judge Crumlish, Judges Craig, MacPhail, Doyle, Barry, Colins, and Palladino. Opinion by Judge Doyle. Judge Colins dissents.
[ 107 Pa. Commw. Page 599]
This is an appeal by Fahringer, McCarty & Grey, Inc., (Employer) and Employer's insurer, Ohio Casualty Group, from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision modifying the rate of compensation payable in a supplemental agreement and denying Employer's petition to recoup $18,320.07 Employer had erroneously paid to Richard V. Green (Claimant).
The facts are undisputed. In accordance with a notice of compensation payable dated June 17, 1977 Claimant received compensation for total disability benefits at the maximum weekly rate of $199 from May 25, 1977 through September 30, 1981 based upon wages of $300.25 per week. These payments were for a compensable injury sustained on May 25, 1977. In accordance with a supplemental agreement dated January 6, 1982 Claimant was receiving partial disability benefits of $115.66 from October 1, 1981 based upon his earning power of $127.00 per week. At a hearing held on September 27, 1983 the parties stipulated that Claimant's average weekly wage was $211.84 (not $300.25) and hence that his correct compensation rate for partial disability was $56.56. The miscalculation of Claimant's weekly wage had gone undetected for approximately six years and meant that Employer had overpaid Claimant in the amount of $18,320.07.
The referee modified the existing agreement*fn1 but denied Employer the right to recoup the $18,320.07, reasoning that it was equitably estopped from entitlement to the credit. Specifically, the referee found
6. Prior to the filing of the instant petition, the parties assumed, although incorrectly, that the
[ 107 Pa. Commw. Page 600]
average weekly wage and disability-rates shown on the notice and agreement were accurate for nearly six years. It should be noted that, in most instances, employers' records and computations of the average weekly wage are generally accepted and relied upon. And there is no evidence to show that this was not the case in the instant matter. Certainly the parties relied upon such assumption for that period.
7. It would be inappropriate now to allow the employer the credit it has requested since it would be detrimental to the claimant.
Accordingly, the referee refused to allow a credit. On appeal the Board noted, inter alia, that Claimant's benefits are the sole source of income for Claimant, his wife and child. The Board also noted that the record was devoid of any indication that Claimant committed any fraud upon Employer or its insurer. The Board, determining that the referee's findings and conclusions were properly supported, affirmed. Employer ...