Appeals from the Order of the Workmen's Compensation Appeal Board in the case of Sherley Roseboro v. Atlantic & Gulf Stevedores, Inc., No. A-91215.
Maria Zulick, with her, Charles W. Craven, Marshall, Dennehey, Warner, Coleman and Goggin, for petitioner/respondent, Atlantic & Gulf Stevedores, Inc.
Sheldon A. Goodstadt, Oxman, Levitan & Goodstadt, for respondent/petitioner, Sherley Roseboro.
Judges MacPhail and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge Palladino dissents.
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In these consolidated appeals, Atlantic & Gulf Stevedores, Inc. (Employer) has appealed a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision denying Employer's petition to modify benefits payable to Sherley Roseboro (Claimant); and the Claimant has appealed the decision of the Board which affirmed a referee's decision awarding Employer subrogation rights in a third party tort recovery received by Claimant. For the reasons set forth below, we affirm the denial of Employer's request for modification of disability benefits, but remand on the issue of subrogation.
Claimant was employed as a longshoreman or stevedore for Employer. On July 5, 1979, Claimant was injured
[ 111 Pa. Commw. Page 148]
in the course of his employment when a Merz Highways Tour bus in which claimant was a passenger, while returning from a job site in New Jersey, was struck by an automobile driven by David Hemphill. Claimant was paid workmen's compensation benefits from July 5, 1979 at a weekly compensation rate of $192.26.
On July 15, 1980, Employer filed for modification of compensation. On January 22, 1986, the referee rendered a decision denying Employer's request for modification of disability benefits but granting Employer subrogation rights.*fn1 The Board affirmed the referee's decision.
Thus, two issues are before us for review: (1) whether the referee erred in denying Employer's request for modification of disability benefits, and (2) whether the referee erred in determining that Employer was entitled to subrogation rights with respect to Claimant's third party tort recovery. Our scope of review herein is limited to a determination of whether constitutional rights have been violated, an error of law has been committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).
First, we shall discuss Employer's request for modification of workmen's compensation benefits. In support of its position, Employer relies on the testimony of Dr. William Simon and the vocational testimony of Dr.
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Philip Spergel.*fn2 Dr. Simon testified that he had examined Claimant on two separate occasions, November 26, 1979 and July 15, 1980. Dr. Simon testified that he diagnosed Claimant as suffering from degenerative joint disease, degenerative disc disease of the cervical spine and degenerative joint disease of the lumbosacral spine. It was Dr. Simon's opinion that although Claimant could not return to his job as a stevedore, Claimant could ...