Dumas v. Commonwealth, Workmen's Compensation Appeal Board

423 A.2d 476, 55 Pa. Commw. 459, 1980 Pa. Commw. LEXIS 1918
CourtCommonwealth Court of Pennsylvania
DecidedDecember 18, 1980
DocketAppeal, No. 2284 C.D. 1979
StatusPublished
Cited by3 cases

This text of 423 A.2d 476 (Dumas v. Commonwealth, Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dumas v. Commonwealth, Workmen's Compensation Appeal Board, 423 A.2d 476, 55 Pa. Commw. 459, 1980 Pa. Commw. LEXIS 1918 (Pa. Ct. App. 1980).

Opinion

Opinion by

Judge Palladino,

Appellant appeals the order of the Workmen’s Compensation Appeal Board (Board) which denied her petition for review and reversed the Referee’s de-' cisión to permit her to recover for the loss of use of both her deceased husband’s eyes as a compensable permanent injury. Appellee and the Board contend that the right to petition for a review of a compensation award made pursuant to The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915,-P.L. 736, as amended, 77 P.S. §1 et seq., belongs solely to the injured worker unless the Act expressly re[461]*461serves rights in the worker’s survivors. We affirm the Board’s order.

Following a work-connected injury, appellant’s husband lost the use of both eyes and received disability payments until his death which resulted from causes unrelated to his work. During his lifetime claimant never disputed the terms of the compensation agreement which defined his disability benefits. As claimant’s surviving dependent, appellant filed a petition for review of the compensation agreement and alleged that the agreement should be modified to (1) retroactively award specific loss benefits to claimant under Section 306(c) of the Act, 77 P.S. §513, and (2) as a corollary, pay such benefits to claimant’s widow under Section 306(g) of the Act, 77 P.S. §541.

It is a well established principle that “ [t]he provisions of the Workmen’s Compensation Act are remedial in nature and • are to be liberally construed, with borderline interpretations resolved in favor of the injured employee.”. Turner v. Jones & Laughlin Steel Corp., 479 Pa. 618, 629, 389 A.2d 42, 47 (1978). But “[w]hile the Act is to be liberally construed, the meaning of clear and unambiguous words used by the legislature cannot be distorted.” (Citation omitted.) Ciabattoni v. Birdsboro Steel Foundry & Machine Co., 179 Pa. Superior Ct. 538, 542, 118 A.2d 229, 231 (1955), rev’d on other grounds, 386 Pa. 179, 125 A.2d 365 (1956).

In Frederico Granero Co. v. Workmen’s Compensation Appeal Board, 48 Pa. Commonwealth Ct. 252, 409 A.2d 1187 (1980), this Court held that an employee’s widow could receive benefits to which the employee would have been entitled if he had actually filed a claim during his lifetime. Frederico Granero Co. concerned the initial presentation of a request for compensation and was governed by Section 410, 77 P.S. §751, which states in pertinent part: “If, after [462]*462any injury, the employer . . . and the employe or Ms dependent, concerned in any injury, shall fail to agree upon the facts thereof or the compensation due under this act, the employee or Ms dependents may present a claim petition for compensation to the department.” (Emphasis added.) Section 410 specifically allows the filing of an original claim by a dependant.

The Frederico Granero Co. opinion distinguishes Flynn v. Asten Hill Mfg. Co., 34 Pa. Commonwealth Ct. 218, 383 A.2d 255 (1978) wherein the statutory time limit for filing an asbestosis claim was violated, and claimant’s widow was therefore denied compensation.

DeMontis v. Workmen’s Compensation Appeal Board, 34 Pa. Commonwealth Ct. 225, 383 A.2d 259 (1978), confirming after reargument, 372 A.2d 950 (1977), also differentiated in Frederico Granero Co., controls the instant case. In DeMontis a widow filed a petition for review and modification, under Section 413, 77 P.S. §771, of her husband’s partial disability award, alleging that her husband should have received total disability payments and requesting that she receive the additional sum owed to her husband. Section 413 provides that “[a] referee . . . may . . . review and modify ... a notice of compensation payable ... or upon petition filed by either party ... if it be proved that such notice of compensation . . . was in any material respect incorrect.” (Emphasis added.) Since only the employer and employee were parties to the agreement, the widow lacked standing to affect a modification of the agreement.

The fact pattern before this Court is very similar to DeMontis. Appellant seeks a review of the compensation agreement to posthumously alter the nature of the disability payments to which her husband, a party to the agreement, was entitled. Since Section 413 does not reserve any rights in parties’ dependents, appel[463]*463lant’s petition to review, the compensation agreement by wbicb her husband received disability payments during bis lifetime, is denied.

Assuming arguendo, that appellant bad standing to petition for a review of tbe agreement, appellant’s claim would still fail.

To ascertain whether a worker’s surviving dependent is eligible for benefits, it is necessary to determine wbicb section or sections of tbe Act pertain. Appellant argues that claimant was receiving compensation for a temporary total disability and was entitled to specific loss benefits (Section 306(c)) as tbe Referee found. Appellee and tbe Board contend that claimant was receiving total disability payments (Section 306(a), 77 P.S. §511).

Section 306(c)(23), 77 P.S. §513(23), states that tbe loss of both eyes (equivalent to tbe permanent loss of use of both eyes for all practical intents and purposes, Stachowski v. Incorporated Real Estate Investors, 174 Pa. Superior Ct. 152, 100 A.2d 140 (1953)) constitutes a total disability compensable under Section 306(a) unless the Board determines otherwise.

In Turner tbe Supreme Court of Pennsylvania construed Section 306(c) (23) to afford a claimant tbe opportunity to make an election during bis lifetime between the advantages of Section 306(c) [sum certain for a scheduled time period with rights passing to survivors] and Section 306(a) [unrestricted payment period as long as disability continues but death of claimant extinguishes right to payment]. Section 306(c)(23)

explicitly gives to the Board tbe discretion to determine tbe optimum benefit available to a claimant within tbe statutory scheme. ... In most cases this is compensation based on total disability. Tbe legislature nevertheless empowered the Board to determine otherwise [464]*464should another provision prove more advantageous to the claimant. We [the Supreme Court of Pennsylvania] can conceive of no other purpose for the exception contained in Section 306 (o)(23).

Id. at 626-27, 389 A.2d at 46.

Turner permits a claimant to make a favorable election during his lifetime between payments for specific loss permanent injuries (Section 306(c)) and payments for total disability (Section 306(a)). But Turner

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423 A.2d 476, 55 Pa. Commw. 459, 1980 Pa. Commw. LEXIS 1918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dumas-v-commonwealth-workmens-compensation-appeal-board-pacommwct-1980.