Creighton v. Continental Roll & Steel Foundry Co.
| Decision Date | 15 July 1944 |
| Docket Number | 992 |
| Citation | 155 Pa.Super. 165,38 A.2d 337 |
| Parties | Creighton, Appellant, v. Continental Roll & Steel Foundry Company et al |
| Court | Pennsylvania Superior Court |
Argued April 21, 1944.
Appeal, No. 121, April T., 1943, from judgment of C. P Allegheny Co., April T., 1942, No. 1936, in case of Elizabeth F. Creighton v. Continental Roll & Steel Foundry Company et al.
Appeal by claimant from decision of Workmen's Compensation Board.
Appeal dismissed and judgment entered for defendants, before Rowand P. J., Egan and Soffel, JJ., opinion by Egan, J. Claimant appealed.
Philip R. McLaughlin, with him Campbell, Wick, Houck & Thomas, for appellant.
William A. Challener, Jr., with him William A. Challener, for Continental Roll & Steel Foundry Co., appellee.
S. H. Torchia, with him Ralph H. Behney, and James H. Duff, Attorney General for Commonwealth, appellee.
OPINION
This claim was originally filed by E. E. Creighton, an employee of the defendant company, under the Occupational Disease Compensation Act of July 2, 1937, P. L. 2714, a supplement to the Workmen's Compensation Act. The claimant having died after compensation for the entire amount payable to him, $ 3,600, had accrued, his widow, and only dependent, was substituted as claimant under the provisions of section 410 of the Workmen's Compensation Act, as amended in 1937, P. L. 1552, and has taken this appeal from the judgment of the court below, which sustained the decision of the Workmen's Compensation Board, that her husband had already received full compensation under the act, and entered judgment in favor of the employer and the Commonwealth.
Mr. Creighton, whom we shall call the claimant, was the oldest employee of the Duquesne Steel Foundry division of the defendant company. He worked for that company in this state as an inspector of castings from August 1900 to April 28, 1938, when he became totally disabled as a result of silicosis contracted in defendant's employment, in an occupation having a silica hazard. He filed his claim for compensation on August 12, 1938. The defendant's answer denied that claimant had silicosis, or was disabled as a result of that disease, or that he had been employed by it in an occupation having a silica hazard; but the findings of the board supporting the claimant's petition in those respects are not here questioned, and his averments as to his being entitled to compensation for total disability as a result of silicosis contracted in defendant's employment, and the liability of the employer and the Commonwealth to pay him compensation, are admitted. The question here involved is whether this liability has been discharged by certain payments made to the employee by the employer.
On June 21, 1938, Mr. Troutman, defendant's vice president wrote to Mr. Spencer, its secretary-treasurer, the following letter:
These payments of $ 150 per month continued from May 1, 1938 to the date of final hearing, 43 months, and amounted to $ 6,450.
Their nature was explained, on cross-examination, by Mr. Schirra, defendant's safety director, called as its witness, as follows:
"Q. Was there any agreement by which the company was bound to continue these payments for any definite period of time?
A. No.
Q. Were those just voluntary payments made by the company?
A. That's correct.
Q. Those payments were made in consideration of Mr. Creighton's long service with the company, as well as his disability, were they not? . . .
A. I'd like to answer that question and say that it was made in consideration of his past long service with the company -- it was not made in consideration of disability connected with his service."
The claimant was asked the following question by his counsel:
"Are these payments, which you have been receiving, being made to you in consideration of your disability?" He replied:
Out of the $ 150 monthly payments to him, the company every month deducted $ 1.50 due by him for social security payments, and $ 2.80, due by him for group insurance.
As noted in Mr. Troutman's letter, claimant became entitled to sick benefits, from group insurance, of $ 20 per week for 26 weeks from May 1, 1938, or $ 520 in all, but under the company's arrangement with him, these insurance checks were turned over to it, so that, in effect, his salary was that much less, while the sick benefits were being paid.
The position of the company, in effect was, that it denied that the claimant was suffering from silicosis, or any other disability for which it was liable to pay compensation. [1] It recognized that he had tuberculosis to such an extent that he was unable to do any work, but denied that his tuberculosis was the result of anything for which it was legally responsible. Because he was the oldest employee of one of its divisions and was unable to work because of illness, it kept him on the pay roll at a monthly salary about equivalent to the wages he had previously earned as an inspector of castings; but in making these voluntary payments, it was clearly not defendant's intention that they should be over and above, or in addition to, any payments made to the claimant because of his illness, for it distinctly imposed the condition that the claimant's weekly $ 20 insurance checks, paid him under his group insurance policy for sickness, for 26 weeks, were to be turned over to the company; thus indicating that the payment of $ 150 a month would be the total amount payable by it to its old employee for any cause whatever.
The referee found, as his seventh finding of fact, "That the defendant company has paid and is paying at the present time the claimant's full salary of $ 150 per month in lieu of compensation."
In his conclusions of law he ruled that claimant was entitled to receive compensation of $ 18 per week under the provisions of said Occupational Disease Compensation Act, in connection with schedule 306(a) of the Workmen's Compensation amendment of 1937, P. L. 1552, not exceeding a total of $ 3,600, of which ninetenths, or $ 16.20 weekly, and $ 3,240, in all, should be paid by the Commonwealth, and one-tenth, or $ 1.80 weekly, and $ 360, in all, should be paid by the employer. He further held (3rd conclusion of law) that "as claimant is being paid full wages by the defendant in lieu of compensation, the defendant, Continental . . . is entitled to have the payment of compensation by it suspended until such time as the defendant, Continental . . . ceases to pay wages in lieu of compensation"; and (4th conclusion) "Since the Commonwealth of Pennsylvania and/or the Second Injury Reserve Fund are not entitled to the suspension of their share of the award to be made to the claimant, they are not entitled to a suspension of payments of their share of the compensation."
He awarded compensation to the claimant in conformity with said findings and conclusions.
On appeals to the board by the Commonwealth and the employer respectively, the former complained of the referee's fourth conclusion of law and the award of compensation against the Commonwealth; and the latter complained of the referee's sixth finding of fact, which, in substance, found that claimant, in his employment with defendant company, had contracted silicosis from his contact with dusty air containing free silica, and because of this had contracted tuberculosis; as a result of which diseases he had been totally disabled since April 28, 1938 -- a matter not now in dispute. It also complained of the referee's conclusions of law resulting from said finding, and particularly in failing to find that the employer had paid wages in lieu of compensation in excess of any possible liability on its part to pay compensation, and in making any award of compensation against it.
In disposing of the appeals, the board affirmed all the referee's findings of fact, but set aside his second, third and fourth conclusions of law, and substituted therefor its own, holding in effect, (1) that the payments of $ 150 per month made by the employer to the claimant included his compensation of $ 18 per week, and as the aggregate of those payments exceeded $ 3,600, the limit of compensation fixed in section 5 of the Occupational Disease Compensation Act for silicosis, it is entitled to receive credit for the payments so made, and is thereby discharged of liability on said award; and (2) that since the defendant employer has paid claimant a total of $ 6,450, an amount in excess of the limit of total compensation of $ 3,600, it has discharged the joint liability of both the employer and the Commonwealth, and no liability attaches to the Commonwealth to pay its share of the award to the claimant; and, accordingly it sustained the appeals.
The claimant appealed to the court of common pleas, and upon its sustaining the decision and order of the board, he appealed to this court.
A preliminary question arises from the action of the court below in holding that the claimant, not having appealed to the board from the referee's seventh finding of fact supra, [2] has no standing to press...
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