dissenting.
I respectfully dissent. The second paragraph of Section 319 of the Act; 77 P.S. § 671, provides that an “employer or insurance company who made the payments shall be subrogated ... 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.” (Emphasis added.)
In the present case, a supplemental agreement was executed on January 5, 1988, establishing Claimant’s injury as compensable. Blue Shield’s subrogation interest, in the amount of $2,844.00, was communicated to Employer by letter dated January 25, 1988. At this time, Employer did not object to Blue Shield’s request for subrogation. Referee Luxenberg’s decision granting Claimant’s request to withdraw his claim petitions, based on the supplemental agreement, was not filed until February 17, 1988. Consequently, I would conclude that Blue Shield’s subrogation interest was timely established and I would affirm the Board.