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TEMPLE v. PENNSYLVANIA DEPARTMENT HIGHWAYS ET AL. (12/20/71)

decided: December 20, 1971.

TEMPLE
v.
PENNSYLVANIA DEPARTMENT OF HIGHWAYS ET AL., APPELLANTS



Appeal from order of Superior Court, April T., 1970, No. 453, affirming 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.

COUNSEL

John T. Owens, Assistant Attorney General, with him Thomas E. Roberts, Assistant Attorney General, Harvey R. Robinson, Special Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellants.

Ewing B. Pollock, with him James B. F. Rinehart, for appellee.

Jones, Eagen, O'Brien, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Barbieri. Mr. Chief Justice Bell and Mr. Justice Roberts took no part in the consideration or decision of this case.

Author: Barbieri

[ 445 Pa. Page 540]

In this workmen's compensation case we granted an appeal from the Superior Court's action in affirming a lower court order which dismissed the employer

[ 445 Pa. Page 541]

    and insurance carrier's appeal from the Workmen's Compensation Board. The Board had affirmed a referee's order that appellants, Pennsylvania Department of Highways and State Workmen's Insurance Fund, insurance carrier for the Pennsylvania Department of Highways, pay compensation for 50 per cent partial disability to the claimant, David L. Temple, appellee herein.

Although a question has been raised as to whether or not the claimant's disability, dating from February 23, 1965, was due to an accident, this issue is not pressed here. If not abandoned, the accident question is clearly without merit on the facts in the record.

The relevant issue for our review is whether or not the State Workmen's Insurance Fund, insurance carrier for the Pennsylvania Department of Highways, should be relieved of its obligation to pay the partial disability compensation ordered during the 41 1/2 days immediately following the accident, because of credit claimed by it for payments to the claimant by the Department of Highways of wages due him as sick leave during that period.

The factual circumstances are pertinent. The accident occurred on February 23, 1965. The State Workmen's Insurance Fund denied liability on the ground that the claimant had not suffered an accident. No hearing before a referee was held until January 21, 1966. In the meantime, claimant was offered his sick leave wages to which he was entitled under his contract of employment. He chose to take the sick leave which covered the period of 41 1/2 days. Apparently, he still has not received any of the workmen's compensation due him quite aside from the disputed 41 1/2 days in question, probably because of the extended litigation.

Now, before us is solely the State Workmen's Insurance Fund's contention that all of ...


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