Turner v. Jones & Laughlin Steel Corp.

• Decision Date: 21 July 1978
• Citation: 479 Pa. 618,389 A.2d 42
• Parties: Virgil TURNER, Appellant, v. JONES & LAUGHLIN STEEL CORPORATION and Workmen's Compensation Appeal Board of the Commonwealth of Pennsylvania, Appellee.
• Court: Pennsylvania Supreme Court

Page 42

389 A.2d 42

479 Pa. 618

Virgil TURNER, Appellant, v. JONES & LAUGHLIN STEEL CORPORATION and Workmen's Compensation Appeal Board of the Commonwealth of Pennsylvania, Appellee.

Supreme Court of Pennsylvania.

Argued Sept. 27, 1977.

Decided June 5, 1978.

Reargument Denied July 21, 1978.

[479 Pa. 619] Thomas W. Henderson, Pittsburgh, for appellant.

Roy F. Walters, Jr., Carl B. Fried, Fried, Kane & Walters, Pittsburgh, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.

OPINION

MANDERINO, Justice.

Appellant was severely injured on May 13, 1972, in a work-related accident, in the course and scope of his employment with appellee Jones and Laughlin Steel Corporation (J. & L.). The accident severed appellant's spinal cord at chest level, rendering him a complete paraplegic with total loss of sensation in the lower body and total loss of use of all body functions below the chest level. There are no expectations of improvement in his condition.

On May 24, 1972, appellant and J. & L. entered into an open compensation agreement under which appellant has been paid $94.00 per week for total disability as authorized by § 306(a) of the Workmen's Compensation Act, 77 P.S. § 511. On July 2, 1973, appellant filed a petition to modify the compensation agreement to an award of compensation for the specific loss of use of both legs, under § 306(c), 77 P.S. § 513(25).

After hearing testimony from medical experts at a modification hearing ordered by the Workmen's Compensation Appeal Board, the referee found as a fact that appellant had lost the use of both legs and awarded him the statutory compensation of $94.00 a week, for a total of 870 weeks 410 weeks for each leg plus a 50 week healing period retroactive to the date of the accident, with full credit to J. & L. for all payments made under the compensation agreement. On appeal, the Board, in a written opinion, concluded that appellant's injuries "have resolved to a specific loss of use of both legs" and affirmed the referee's order. J. & L. then appealed to the Commonwealth Court, and a three judge panel of that court reversed the order of the Board.

The material facts relevant to this appeal are not in dispute. Both parties agree that appellant's injuries are covered by the Workmen's Compensation Act; that appellant has lost the use of both legs; and that injuries to other parts of his body have rendered him totally disabled. This appeal, therefore, deals only with questions of law regarding how the relevant provisions of the Workmen's Compensation Act are to be applied to the undisputed facts. The issues now before us are (1) whether a claimant who is factually eligible for compensation either on the basis of total disability or specific losses may elect compensation under the provision more beneficial to him; and (2) whether the Board may modify an agreement for total disability compensation to grant specific loss benefits solely on the basis of claimant's election.

The compensation which appellant is now receiving is for total disability, pursuant to § 306(a) of the Act, 77 P.S. § 511. Total disability payments are intended as compensation for Loss of earning power, based not upon specific injuries but on the totality of the claimant's condition. See, e. g., Killian v. Heintz Div. Kelsey Hayes, 468 Pa. 200, 360 A.2d 620 (1976); Borough of Catawissa v. Shultz, 9 Pa.Cmwlth. 546, 308 A.2d 633 (1973); Marshall v. City of Altoona, 208 Pa.Super. 465, 222 A.2d 408 (1966). Absent an improvement in appellant's condition terminating his total disability, these payments are available for his lifetime under § 306(a) as amended in 1972.

Appellant wishes, however, to modify the agreement in order to obtain his benefits pursuant to § 306(c), 77 P.S. § 513(25), which is intended specifically to compensate a claimant for the Loss of use of designated bodily members rather than for general loss of earning power. Under this section appellant's weekly benefit would remain the same, but compensation would terminate at the end of 870 weeks rather than at appellant's death or the end of his disability.

In the usual case total disability payment would be the most beneficial to a claimant, since its payment is not limited to a term of weeks as is specific loss payment. For this appellant, however, there are economic advantages in securing an award under § 306(c) for the loss of use of his two legs.

Appellant's primary concern is to maximize his monthly income. Appellant receives a permanent incapacity pension of $197.00 per month under the Basic Steel Agreement to which, as a union member, he is a party. The agreement provides that when the employee reaches age 65, any amount received pursuant to Workmen's Compensation law must be deducted from that pension amount. Those fixed statutory payments for loss of bodily members; however, are specifically excepted. Thus, if appellant now aged 65 receives his compensation as total disability under § 306(a), his pension of $197.00 per month will be entirely eliminated by the set-off of $94.00 per week received as Workmen's Compensation. Under an award for specific loss pursuant to section 306(c), however, the pension will not be affected. Therefore, modification of the original agreement will in effect provide appellant with $197.00 per month more than he can now receive.

In addition, appellant is looking to the effects of a modification on his survivors. Under a 1972 amendment to § 306(g) of the Act, 77 P.S. § 541, upon the death of the injured employee specific loss benefits awarded under § 306(c) continue to be payable to designated dependents for the full statutory term of the award, whether or not the death is caused by the compensable injury. Benefits paid pursuant to § 306(a) for total disability, however, cease at the claimant's death unless the death was caused by the injury and occurred within 300 weeks after the accident a reference point now passed in appellant's case.

For those specific reasons, it is to this appellant's over all financial advantage to receive compensation only for the loss of two legs rather than for total disability.

It is this unusual position which caused appellant to seek modification of the original agreement. Since total disability compensation has heretofore been considered a greater benefit than specific loss compensation, modification requests have usually arisen in either of two situations: when a claimant has alleged that his loss of use of a bodily member has developed into a total disability, entitling him to increased compensation; or when an employer has alleged that a claimant's condition has improved to the extent that his total disability benefits may be reduced or terminated. Such cases, based as they were upon some change in the claimant's condition, logically required that the change be proved in order to justify a modification, and it is upon this line of cases that the Commonwealth Court relied in the instant case.

We are not convinced, however, that the rule of law developed for those cases is applicable where, as here, a modification is sought not on the basis of factual allegations related to the injuries but upon appellant's assertion that the statutory scheme should permit him to elect the more beneficial of two provisions equally applicable to his injuries. The cases relied on by the Commonwealth Court apply when the modification is to be based on a change of physical condition i. e., when an altered factual situation requires the adjustment but not when the modification is based upon a matter of statutory interpretation.

As a factual matter, it cannot be disputed that appellant has lost the use of two legs and has no more to prove to be eligible for compensation under § 306(c) on the face of the provision alone. As a matter of law, however, it is argued that § 306(d), 77 P.S. § 513(d), restricts one who is totally disabled to compensation under § 306(a), the provision for total disability benefits. We believe that this argument is based upon an erroneous interpretation of Section 306(d). This section provides that:

"(d) Where, at the time of the injury the employe receives other injuries, separate from these which result in permanent injuries enumerated in clause (c) of this section, the number of weeks for which compensation is specified for the permanent injuries shall begin at the end of the period of temporary total disability which results from the other separate injuries, but in that event the employe shall not receive compensation provided in clause (c) of this section for the specific healing period. In the event the employe suffers two or more permanent injuries of the above enumerated classes compensable under clause (c) of this section, he shall be compensated for the largest single healing period rather than the aggregate of the healing periods."

Appellee has interpreted this section to mean that where the claimant has specific loss injuries which entitle him to compensation under § 306(c) for loss of use of bodily members, but also has some additional injuries qualifying him for total disability, he cannot receive compensation for specific losses until his total disability ceases. The Commonwealth Court apparently agreed with this interpretation, for in requiring that some change of condition be shown it held that appellant must establish something Less than total disability to recover for specific loss.

This interpretation ignores the position and function of this provision within the statute as a whole and overlooks the specific statutory language of Section 306(d).

The Act was renumbered in the 1972 revisions, and § 306(d) inexplicably became subsection (d) of 77 P.S. § 513 a section which has no subsections (a), (b), or (c). Nevertheless, the order and position of the relevant sections has remained the same; Sections 306(a), (b), (c) and (d) of the Act follow in order as Sections 511, 512, 513, and...