Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Zurich-American Insurance Company v. Commonwealth of Pennsylvania, Bureau of Workers' Compensation, No. A-89453.
Richard T. Kelley, for petitioner.
Robert L. Saunders, Mutzabaugh, Mutzabaugh, Saunders & Mattie, for respondent.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Senior Judge Blatt. Judge MacPhail did not participate in the decision in this case.
[ 123 Pa. Commw. Page 188]
This matter is before us pursuant to a petition for review filed by the Commonwealth of Pennsylvania, Bureau of Workers' Compensation (Commonwealth) from an opinion and order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision awarding respondent Zurich-American Insurance Company reimbursement from the Supersedeas Fund pursuant to Section 443 of The Pennsylvania Workmen's Compensation Act (Act).*fn1
The pertinent facts are that on June 8, 1983 the respondent filed with the Board a petition to suspend compensation to Kevin Gallagher (claimant) on the basis that the injury to the index finger of his right hand was untreatable and the only course of treatment was amputation. The petition also contained the following entreaty:
Considerable time will elapse between the date of this petition and the final determination of this issue by reason of the medical testimony to be taken and the hearings to be held and a possible appeal and this petitioner requests the Board at this time to order a suspension of all further payments to Claimant until it is determined whether or not the remedy in this case is the amputation of the finger or an attempt to reconstruct it.
[ 123 Pa. Commw. Page 189]
The referee later granted the suspension petition, ruling that the injury had resolved itself into a specific loss, and limited compensation to fifty weeks, plus a six-week healing period.*fn2 However, by that time the claimant had already been paid sixty-eight weeks of compensation. Thus the referee found that the claimant had been overpaid, and no further compensation was due or payable.
The respondent then applied for reimbursement from the Supersedeas Fund. The Commonwealth, as conservator of the Supersedeas Fund, opposed the application. The referee granted the application, and the Commonwealth appealed to the Board. The Board affirmed, and this appeal followed.
The Commonwealth raises two issues in its petition for review: First, whether the petition to suspend compensation was filed under Section 413 of the Act,*fn3 which, the Commonwealth contends, is a prerequisite to reimbursement from the Fund; and second, whether the respondent properly requested a supersedeas when it filed the ...