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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA v. WINIFRED MONTROSE (07/01/75)

decided: July 1, 1975.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA, GOODING'S MILLION DOLLAR MIDWAY, INC. AND STATE WORKMEN'S INSURANCE FUND, INSURANCE CARRIER,
v.
WINIFRED MONTROSE, MOTHER OF JOHN J. MONTROSE, DECEASED. WINIFRED MONTROSE, APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Winifred Montrose, Mother of John J. Montrose, Deceased, v. Goodings Million Dollar Midway, Inc., No. A-67738.

COUNSEL

Arthur Ed. Saylor, with him Edelman, Schaeffer, Saylor, Readinger & Poore, for appellant.

Frank J. Toole, Sr., Special Assistant Attorney General, with him John E. O'Connor, Assistant Attorney General, and James N. Diefenderfer, for appellees.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 20 Pa. Commw. Page 99]

Winifred Montrose, a Workmen's Compensation claimant, here appeals from an order of the Workmen's Compensation Appeal Board (Board) reversing a referee's decision to grant her petition for the commutation of weekly partial dependency payments.

In August of 1971, appellant's eighteen year old son, who had been living with her and contributing to her support, was killed in a work-related accident. The appellant filed a fatal claim petition and, after a referee's hearing in June, 1972, was awarded $25.00 per week as partial dependency benefits and $750.00 for burial expenses. Nine months thereafter*fn1 she filed a petition for commutation*fn2 of the partial dependency benefits. A referee's

[ 20 Pa. Commw. Page 100]

    hearing was held at which appellant was the only witness. Her testimony revealed that: she is 45 years old and lives in a rented home with three children, none of whom are minors; she has been abandoned by her husband and receives no support from him; her yearly income, the combination of her own wages and contributions from a daughter who was working, fall short of her yearly expenses by approximately $800; increased housing costs and significant medical expenses appear likely in the future; and, if her Workmen's Compensation payments should be commuted she would discharge her debts, including one for counsel fees, and purchase a house in order to avoid the financial and locational uncertainties of rental living.

Concluding that commutation would be in the best interests of the claimant,*fn3 the referee granted her petition with credit to the insurer, the State Workmen's Insurance Fund, for payments made under the original partial dependency award. Noting that Section 316 of the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 604 (Supp. 1974-1975) vests the Board with exclusive jurisdiction of questions of requiring indemnity*fn4 incident to commutation, the referee refused to rule on the insurer's demand for indemnity. On appeal, the Board concluded that: (1) under the Act concurrent original jurisdiction rested with

[ 20 Pa. Commw. Page 101]

    the referee and the Board to hear petitions for commutation; (2) indemnity sufficient to guarantee repayment in the event of claimant's remarriage was impractical in this case; and (3) commutation without indemnity here would cause an unacceptable risk of undue expense*fn5 to the insurer. The Board therefore denied the prayer of the petition. This appeal followed.

The appellant first contends that the referee has exclusive jurisdiction of petitions for commutations and that the Board is without ...


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