decided: March 23, 1971.
DEPARTMENT OF HIGHWAYS ET AL., APPELLANTS
Appeal from order of Court of Common Pleas of Greene County, Nov. T., 1969, No. 5, in case of David L. Temple v. Pennsylvania Department of Highways and State Workmen's Insurance Fund.
Raymond Kleiman, Deputy Attorney General, with him Thomas E. Roberts, Assistant Attorney General, and Fred Speaker, Attorney General, for Commonwealth, appellant.
Ewing B. Pollock, with him James B. F. Rinehart, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Montgomery, J. Hoffman and Cercone, JJ., join in this dissenting opinion.
Author: Per Curiam
[ 218 Pa. Super. Page 156]
Dissenting Opinion by Montgomery, J.:
I respectfully dissent from the affirmance of the lower court in dismissing the appeal of the Pennsylvania Department of Highways and State Workmen's Insurance Fund.
Although the record supports the finding of the Workmen's Compensation Board that on February 23, 1965, a compensable injury occurred to appellee, David L. Temple, the Board failed to deduct from the award a credit I think was due the employer for forty-one and and one-half days of sick leave which it had paid to him.
The rule in Pennsylvania is that a claimant cannot receive both sick pay and workmen's compensation, established in Creighton v. Continental Roll and Steel Foundry Company, 155 Pa. Superior Ct. 165, 38 A.2d 337 (1944), 175 A.L.R. 731, 84 A.L.R. 2d 1111, which held that when the employer pays an employe who is totally disabled, not as wages or salary for work performed, but as relief to the employe for his incapacity, the employer discharges his liability for the weeks in which the payments equal or exceed the compensation payable. This rule should be applied in the present case.
The regulation of the Board, on which the Creighton case was decided, should be given full recognition
[ 218 Pa. Super. Page 157]
and followed. It reads, "Sick Leave. A disabled employe may not receive sick leave and workmen's compensation benefits at the same time." Executive Board Personnel Rules, Part II, § 1309.2.
I would therefore allow the proper credit for the aforesaid payments on the award of compensation and, as reduced by the credit, affirm it.
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