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COMMONWEALTH PENNSYLVANIA v. WORKMEN'S COMPENSATION APPEAL BOARD (LIBERTY MUTUAL INSURANCE COMPANY) (02/22/88)

decided: February 22, 1988.

COMMONWEALTH OF PENNSYLVANIA, BUREAU OF WORKERS' COMPENSATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (LIBERTY MUTUAL INSURANCE COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Liberty Mutual Insurance Company v. Commonwealth of Pennsylvania, No. A-88651.

COUNSEL

Paul E. Baker, Acting Deputy Chief Counsel, for petitioner.

Lawrence L. Robinson, with him, John J. Duffy, for respondent, Liberty Mutual Insurance Company.

Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 113 Pa. Commw. Page 608]

The Commonwealth of Pennsylvania, Bureau of Workers' Compensation of the Department of Labor and Industry (Petitioner) is before this Court in its capacity as conservator and maintainer of the Workmen's Compensation Supersedeas Fund (Fund) under Section 443 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 999, seeking review of an order of the Workmen's Compensation Appeal Board (Board). That order affirmed a referee's decision to allow reimbursement from the Fund to Liberty Mutual Insurance Company (Respondent) for overpayments of compensation made to Ethel Hamilton (Claimant).

The pertinent facts may be briefly summarized as follows. Claimant sustained a work-related injury to her right elbow in 1971 and was paid workmen's compensation benefits of $60.00 per week from December 17,

[ 113 Pa. Commw. Page 6091971]

. On September 29, 1978, her employer's insurer, Respondent, filed a modification petition, alleging that Claimant was able to perform light work which was available to her. At that time, Respondent requested a supersedeas, which was denied. The Referee granted the modification petition in a decision dated September 7, 1982, reducing Claimant's weekly benefit from $60.00 to $40.85. That decision was not appealed. Respondent subsequently filed an application for reimbursement from the Fund for overpayments of $19.15 per week it made to Claimant from September 19, 1980, until September 7, 1982, and the referee granted reimbursement. Following a Board-ordered remand, the referee reaffirmed his decision, the Board affirmed and Petitioner took this appeal.

The precise issue before us is whether the Petitioner, as conservator of the Fund, may challenge the validity of what it terms the "underlying case," here, the referee's decision granting the modification petition. Citing a lack of substantial evidence in support of the referee's grant of that petition, Petitioner argues that Claimant's benefits should not have been reduced, and, therefore, that Respondent is not eligible for reimbursement from the Fund.

As sole authority for its position, Petitioner cites our recent cases of Department of Labor and Industry v. Workmen's Compensation Appeal Board (Commercial Union Insurance Co.), 97 Pa. Commonwealth Ct. 520, 510 A.2d 373 (1986) (Commercial Union) and Bureau of Workers' Compensation v. Workmen's Compensation Appeal Board (Insurance Company of North America), 101 Pa. Commonwealth Ct. 552, 516 A.2d 1318 (1986) (INA). It contends that these cases stand for the proposition that, as a matter of law, it may, as conservator of the Fund, challenge the facts of the underlying case

[ 113 Pa. Commw. Page 610]

    when it believes that reimbursement has been erroneously granted. We do not read those cases so broadly. In both Commercial Union and INA, the parties to a workers' compensation case concluded agreements to terminate the proceedings, which were adopted by a referee, and ultimately served as the basis for his grant of reimbursement from the Fund. In neither instance did the facts of record comport with those upon which the parties had agreed, allowing both insurers to receive reimbursements to ...


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