Appeal, No. 195, Oct. T., 1956, from order of Court of Common Pleas of Berks County, Feb. T., 1955, No. 74, in case of Pearl M. Vanino v. Textile Machine Works et al. Order reversed and record remanded.
John S. McConaghy, for appellants.
C. Wilson Austin, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, and Carr, JJ. (hirt, and Ervin, JJ., absent).
[ 183 Pa. Super. Page 183]
This is a case arising under The Pennsylvania Occupational Disease Act in which claimant was given an award for the death of her husband resulting from silicosis.
Two questions are raised on this appeal by the employer: (1) Is the employer entitled to credit against the award for certain sick benefits and voluntary payments made to deceased in his lifetime? (2) Was the finding of the Workmen's Compensation Board as to the date of total disability arbitrary or capricious? The employer does not question deceased's exposure to a silica hazard or that his death was caused thereby.
Deceased, having become disabled, was unable to work from December 28, 1951, to January 7, 1952. He resumed work, but he was again disabled from February 2, 1952, until May 13, 1952. He returned to work on May 13, 1952, and continued until July 12, 1952, when he became entirely unable to work. He
[ 183 Pa. Super. Page 184]
died on January 13, 1953. No claim for compensation was filed by deceased in his lifetime. During the periods he was disabled, however, he was paid certain payments from an employe's benefit association and from the employer. Between December 28, 1951, and September 29, 1952, deceased was paid $45.50 per week from the Textile Employees' Benefit Association for the weeks during which he was unable to work, a total of twenty-six weeks. The employer contributed $2.75 per month to these funds, and the employe $1.10. The employer claims credit against the award for the alleged proportionate part arising from its contribution, to wit, $32.53 per week. The Workmen's Compensation Board, in disposing of these payments, considered them in two groups: (1) Those payments made between December 28, 1951, and July 12, 1952, when the employe ceased work entirely, and (2) those payments made from July 12, 1952, to September 29, 1952. The board refused to allow the employer credit for the first group on the ground that such payments were made prior to the complete inability of deceased to work and thus could not be set off against the award for total disability or death. Credit for the second group was also disallowed by the board on the ground that they were in the nature of "fringe benefits - capital or wages ..."
Additional payments (a third group) are also involved. From November 1, 1952, until deceased's death on January 13, 1953, the employer voluntarily paid $130 per month to deceased in order to provide him and his family with an income. The board refused to give the employer credit for these payments and stated: "There is evidence furnished by the defendant's witness that these sums ...