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ROBERT BAYUSH v. WORKMEN'S COMPENSATION APPEAL BOARD (CONEMAUGH TOWNSHIP) (12/14/87)

decided: December 14, 1987.

ROBERT BAYUSH, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CONEMAUGH TOWNSHIP), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Robert Bayush v. Conemaugh Township, No. A-87567.

COUNSEL

Michael F. Campanella, with him, Thomas Hollander, Evans, Ivory, Moses, Hollander & MacVay, for petitioner.

Edward G. Kuyat, Jr., with him, Craig E. Kuyat, Kuyat & Kuyat, for respondent, Conemaugh Township.

Judges Doyle and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle. Judge Barry did not participate in the decision in this case.

Author: Doyle

[ 111 Pa. Commw. Page 618]

Robert Bayush (Claimant) petitions for review of an order of the Workmen's Compensation Appeal Board (Board) that affirmed a referee's decision granting Conemaugh Township (Employer) and its workmen's compensation insurer, the Pennsylvania Manufacturers' Association (PMA), a credit for workmen's compensation benefits paid or payable to Claimant after November

[ 111 Pa. Commw. Page 61917]

, 1981, resulting from the settlement of a third-party negligence claim. We affirm.

On April 28, 1977, Claimant was riding on the rear of Employer's garbage truck in the course of his employment. When Employer's truck came to a halt, Claimant's left arm became entangled in the blade portion of the truck's garbage compactor and his arm was crushed. Employer then issued a notice of compensation payable and Claimant began receiving workmen's compensation benefits.

Subsequently, Claimant instituted a products liability action against Thiele, Inc. (Thiele), the manufacturer of the body portion of the garbage truck, in the Court of Common Pleas of Allegheny County. During 1981, the parties in the Thiele case and PMA began settlement discussions. After a series of conversations among Claimant's counsel, PMA and the trial judge, the Honorable Francis A. Barry,*fn1 an arrangement was worked out whereby Thiele agreed to settle the case for $75,000, payable in a series of payments, because the defendant, Thiele, was uninsured. PMA agreed to accept $3,625 in compromise of its subrogation rights (likewise to be paid in installments) and to release a lien of approximately $24,000 it held against the Thiele settlement for compensation already paid to Claimant. Employer and PMA held this lien pursuant to Section 319 of The Pennsylvania Workmen's Compensation Act (Act).*fn2 Claimant settled his case against Thiele on November 17, 1981.

After the settlement, Claimant's counsel withheld Employer's and PMA's pro rata share ($2,880) of the initial Thiele settlement payment on the ground that their right to subrogation was limited by the Pennsylvania

[ 111 Pa. Commw. Page 620]

No-Fault Motor Vehicle Act (No-Fault Act),*fn3 and from the date of settlement until July 1982, Employer continued to pay workmen's ...


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