Dissenting Opinion by
Judge Blatt :I must respectfully dissent because I do not believe that the workmen’s compensation claimant here is entitled to an award of attorney’s fees against the General American Insurance Company.
Section 319 of The Pennsylvania Workmen’s Compensation Act1 (Act), 77 P.S. §671, provides:
Where the compensable injury is caused in whole or in part by the act or omission óf a third party, the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer; reasonable attorney’s fees and other proper disbursements incurred in obtaining a recovery *138or in effecting a compromise settlement shall be prorated between the employer and employe, his personal representative, his estate or his dependents. The employer shall pay that proportion of the attorney’s fees and other proper disbursements that the amount of compensation paid or payable at the time of recovery or settlement bears to the total recovery or settlement. Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employe, his personal representative, his estate or his dependents, and shall be treated as an advance payment by the employer on account of any future instalments of compensation.
Where an employe has received payments for the disability or medical expense resulting from an injury in the course of his employment paid by the employer or an insurance company on the basis that the injury and disability were not compensable under this act in the event of an agreement or award for that injury the employer or insurance company who made the payments shall be subrogated out of the agreement or award to the amount so paid, if the right to subrogation is agreed to by the parties or is established at the time of hearing before the referee or the board.
General American paid sickness and accident benefits to the claimant and, therefore, this case is clearly one which falls under the second paragraph of Section 319 of the Act, and this paragraph does not provide for an award of attorney’s fees. Moreover, the equitable principles enunciated in Workmen’s Compensation Appeal Board v. Del Vecchio, 23 Pa. Commonwealth Ct. 244, 351 A.2d 691 (1976) do not apply here *139because the Del Vecchio case involved the first paragraph of Section 319 of the Act, which specifically provides that the employer pay a pro rata share of the claimant’s attorney’s fees.
Because I believe that there is neither a- statutory nor an equitable basis for awarding attorney’s fees against General American in this case, I would reverse the order of the Board insofar as it awarded attorney’s fees against General American to the claimant.
Judge Wilkinson, Jr. joins in this dissent.Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1 et seq.