concurring and dissenting.
I respectfully dissent from the majority’s decision to reverse that part of the order of the Workmen’s Compensation Appeal Board affirming the WCJ’s award of a $30,000 credit to Employer against Claimant’s future indemnity and medical benefits. This award resulted from Claimant receiving an unjust enrichment of $30,000 when Claimant’s counsel negotiated a reduction in medical bills of $140,000 payable to Suburban General Hospital, Counsel for Suburban testified that he conferred with Claimant’s counsel who suggested that for Suburban to obtain its money, Suburban would have to negotiate a settlement of the sum due. Counsel ultimately agreed upon a $110,000 settlement of Suburban’s claim, and after signing Employer’s insurance carrier’s $140,000 check made payable to Claimant and Suburban, Claimant received a cheek for $30,000 from Suburban.
I agree with the Board’s decision that counsel for Claimant acted without the consent of Employer or its insurance carrier in negotiating a settlement with Suburban and that the $30,000 additional payment represented an unjust enrichment and a windfall to Claimant. Likewise, I agree with Employer that this Court’s en banc decision in Fahringer, McCarty & Grey, Inc. v. Workmen’s Compensation Appeal Board (Green), 107 Pa.Cmwlth. 597, 529 A.2d 56 (1987), is dispositive of this appeal.
In Fahringer, we allowed recoupment, under the unjust enrichment theory, of an overpayment of disability benefits due to a miscalculation of the average weekly wage, which had gone undetected for approximately six years. We recognized as precedent our *643decision in General v. E. Roseman Co., 21 Pa.Cmwlth. 72, 343 A.2d 683 (1975), where we applied the principle of unjust enrichment in workmen’s compensation law. In General, the employer offered its injured worker a lump-sum payment of $7,000 representing pre-payments of total disability benefits. The Court assumed, for purposes of argument, that the lump-sum payment was illegal. Despite this assumption, however, we nevertheless allowed the employer a full credit because the Workmen’s Compensation Act does not authorize a double recovery of benefits. In Fahringer, we then stated, “the simple fact is that Claimant received more than $18,000 to which he was not entitled. Certainly, if an employer who entered into an illegal agreement is entitled to restitution based on principles of unjust enrichment [General], the instant Employer, who pursues his right to credit with clean hands, must also be entitled to restitution.” Id. 529 A.2d at 58.
Similarly, in the case presently before us, Claimant received $30,000 to which he was not entitled. However, unlike the claimant in Fahringer, Claimant in this case, through his counsel, actually participated in the act that resulted in him receiving the additional money. Based on the principles of unjust enrichment, Employer is clearly entitled to the $30,000 credit against Claimant’s future benefits.
Indeed, the majority states that “[o]rdi-narily, this Court’s holding in Fahringer would resolve the issue, and the Court would be compelled to affirm the Board.” The majority then fails to offer any reason why Fahringer does not control the outcome of this case. Instead, it concludes that “other recoupment cases and equitable principles must be considered by the Court in arriving at a just decision in this case.”
In reversing the Board, the majority relies on three decisions by this Court, all of which are distinguishable. It first cites W & L Sales Co. v. Workmen’s Compensation Appeal Board (Drake), 123 Pa.Cmwlth. 158, 552 A.2d 1177 (1989), in which we concluded that the employer had to seek reimbursement of overpayments from the Supersedeas Fund1 instead of obtaining a credit from Claimant’s future payments of compensation. Unlike Employer in the case sub judice, the employer in W & L Sales Co. requested a superse-deas, which was denied. In holding that the employer could not take a credit against future compensation payments, we distinguished Fahringer and General in that those cases did not involve the possibility of a supersedeas fund recovery. Rather, we found our decision in Santarelli v. Workmen’s Compensation Appeal Board (Patrick Dougherty Construction), 113 Pa.Cmwlth. 281, 537 A.2d 894 (1988), in which we held that the employer must be reimbursed from the supersedeas fund, to be the most closely analogous to the facts in W & L Sales Co., because that ease did involve a petition for supersedeas which had also been denied.
In contrast to W&L Sales Co., the instant matter does not involve the possibility of a supersedeas fund recovery, as the majority concedes. Therefore, I believe that our decision in W & L Sales Co. is completely inappo-site.
Likewise, the majority concludes that, in addition toW&L Sales Co., our decisions in Murphy v. Workmen’s Compensation Appeal Board (Ames Department Store), 146 Pa.Cmwlth. 366, 605 A.2d 1297 (1992) and Borda Construction v. Workmen’s Compensation Appeal Board (Borda), 689 A.2d 1005 (Pa.Cmwlth.1997), are “readily dispositive of the recoupment issue here.”
In Murphy, the claimant received an overpayment of compensation which resulted due to her return to work. The employer in Murphy did not request a supersedeas. Judge Alexander Barbieri, writing for a panel of this Court, agreed with the referee’s conclusion that “[wjhen there is an overpayment of compensation[,] relief must be obtained against the supersedeas fund.” 605 A.2d at 1300. Thus, this Court determined in Murphy that the employer was not entitled to reimbursement from the claimant be*644cause the supersedeas fund had been available to the employer, had it bothered to apply, for the overpayment.
In contrast, the $30,000 at issue in the present matter was neither an overpayment nor a mistake. Rather, it was the result of a “settlement” negotiated by Claimant’s counsel after Employer’s insurance carrier had sent a cheek to Claimant’s counsel for the costs of Suburban’s medical services to Claimant. Clearly our decision in Murphy does not preclude this Court from preventing Claimant from receiving such a windfall.
Nor is Borda Construction dispositive of the issue at hand. In Borda Construction, we held that the employer, who underpaid the claimant due to an incorrect notice of compensation payable, owed the claimant the entire amount that was underpaid and was not entitled to an offset for the amount of an overpayment resulting from the grant of employer’s supersedeas request. In holding that where a supersedeas is granted, and an overpayment occurs, the proper recourse is to take a credit, we distinguished Fahringer in that the miscalculation of compensation resulted in the claimant in that case receiving more than he was entitled to, whereas in Borda Construction, the claimant received less than he was entitled to receive. We stated, “[although Employer [Borda] was granted a supersedeas and ultimately prevailed on the merits, Claimant was entitled to receive the full amount of disability benefits due him.” Borda Construction, 689 A.2d at 1008.
Because Claimant in this case received more than he was entitled to, I believe that, under the very language in Borda Construction, Fahringer is the controlling precedent for this Court to follow in the instant matter. Where, as here, there is no possibility for Employer to recover from the supersedeas fund, the funds at issue are not in any way an overpayment or a mistake, and Claimant would be unjustly enriched if he retains the additional money, I believe that Employer is entitled to the $30,000 credit against Claimant’s future indemnity and medical benefits.
I would, therefore, affirm the Board on the $30,000 recoupment issue; however, the ease should be remanded for the Board to determine an appropriate schedule for recoupment of those funds in an amount that Claimant can manage, giving proper consideration to his financial circumstances. I join in the majority opinion on all other issues decided.
McGINLEY, J., joins this concurring and dissenting opinion.. Section 443 of the Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 999.