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W & L SALES CO. v. WORKMEN'S COMPENSATION APPEAL BOARD (DRAKE) (01/27/89)

decided: January 27, 1989.

W & L SALES CO., INC., AND PMA INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (DRAKE), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Toby L. Drake v. W & L Sales Co., Inc., No. A-93114.

COUNSEL

Dennis J. Bonetti, Peters & Wasilefski, for petitioners.

Gerard M. Mackarevich, with him, Ira H. Weinstock, Ira H. Weinstock, P.C., for respondent.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge MacPhail did not participate in the decision in this case.

Author: Narick

[ 123 Pa. Commw. Page 159]

The issue presented in this appeal is whether W & L Sales Co., Inc. (Employer) and its insurer, PMA Insurance Co. (collectively Petitioners) are required to seek reimbursement of overpayments of workmen's compensation benefits paid to Toby L. Drake (Claimant) from the Workmen's Compensation Supersedeas Fund*fn1 or

[ 123 Pa. Commw. Page 160]

    whether they may deduct the overpayments from Claimant's future payments of compensation. The referee's order allowing deductions from future compensation payments was reversed by the Workmen's Compensation Appeal Board (Board). We affirm the Board's order.

The procedural history of this case is somewhat unique. Claimant suffered a compensable injury in February of 1983. He was paid total disability benefits of $246.42 per week. The Petitioners filed a modification petition on October 7, 1983, alleging that Claimant had sufficiently recovered to perform employment which the Employer made available to him within his physical limitations. A referee granted the modification petition on March 9, 1984 and Claimant's benefits were reduced to $86.43 per week. On Claimant's appeal, the Board reversed and reinstated Claimant's total disability benefits. The Petitioners appealed to this Court and requested a supersedeas, which was denied. We ultimately affirmed the Board's order in W & L Sales Co., Inc. v. Workmen's Compensation Appeal Board (Drake), 92 Pa. Commonwealth Ct. 396, 499 A.2d 710 (1985), filed October 23, 1985. Accordingly, the Petitioners were obligated to reimburse Claimant for the difference between the partial and total disability rates, which they did.

While the referee's decision was on appeal, Claimant began a light duty job for another employer in July 1984. He notified Employer of this employment December 6, 1984, just two days after the Board reversed the referee's grant of the modification petition.

On May 23, 1985, the Petitioners filed a second modification petition seeking to have Claimant's total disability payments reduced to partial disability payments because of his employment. At the same time, Petitioners requested a supersedeas. On August 21, 1985, a referee granted a partial supersedeas based on

[ 123 Pa. Commw. Page 161]

Claimant's earnings and ordered payments of $75.50 ...


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