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ALBERT J. BERNOTAS v. WORKMEN'S COMPENSATION APPEAL BOARD (PHILADELPHIA ELECTRIC COMPANY) (06/13/88)

decided: June 13, 1988.

ALBERT J. BERNOTAS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PHILADELPHIA ELECTRIC COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Albert J. Bernotas v. Philadelphia Electric Company, No. A-92103.

COUNSEL

Arthur G. Girton, P.C., for petitioner.

Thomas F. McDevitt, P.C., for respondent.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Senior Judge Blatt.

Author: Blatt

[ 117 Pa. Commw. Page 114]

Albert J. Bernotas (petitioner) petitions for our review of the opinion and order of the Workmen's Compensation Appeal Board (Board) holding that the Philadelphia Electric Company (employer) is entitled to credit for benefit payments that it made to the petitioner. We will vacate and remand.

The issues presented to us in the instant case are whether the Board's remand order of July 21, 1983 was proper and whether the Board erred when it affirmed, with modification, the referee's decision of June 19, 1986 that the employer is entitled to credit. Our scope of review is limited, therefore, to a determination of whether constitutional rights were violated or an error of law committed, and whether essential findings of fact are supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

The petitioner was injured at work on December 23 or 24 of 1967 when he was accidentally hit on the left side of his head with a sledgehammer by another employee. By agreement dated February 4, 1968, he received compensation in the amount of $52.50 per week beginning January 9, 1968. He returned to work on February 6, 1968 and later signed a final receipt on April 26, 1968. On February 6, 1970, he filed a petition for reinstatement.*fn1 This event marked the beginning of the extensive litigation in this matter.

[ 117 Pa. Commw. Page 115]

The referee first dismissed the petition as barred by the statute of limitations. The Board then vacated this decision and remanded to the referee. Upon remand, the referee ruled in favor of the petitioner and held that the petitioner remains disabled from the accident of December of 1967 and is entitled to compensation in the amount of $52.50 per week from September 16, 1969 through February 2, 1975, and thereafter in the amount of $60.00 per week. The referee also made the following finding of fact relevant to the issues now before us:

Defendant is not entitled to subrogation of any amounts paid to Claimant since Defendant lacked standing to present such claims and all payments were strictly voluntary on part of the Defendant. Claimant had no control, discretion or legal recourse in reference to these funds.

Referee's Finding of Fact No. 9 from Referee's Decision of October 15, 1981, Reproduced Record (R.R.) at 833a.

By its opinion dated July 21, 1983, the Board affirmed the referee's decision insofar as it held that the petitioner remains totally disabled as a result of his injury of December, 1967, but remanded to the referee for further findings of fact and conclusions of law regarding the ...


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