President Judge Bowman and Judges Crumlish, Jr., Rogers, Blatt and DiSalle. Confirming Opinion by Judge Wilkinson, Jr., After Reargument. Concurring Opinion by Judge DiSalle. Judge Rogers joins.
[ 34 Pa. Commw. Page 232]
This appeal was originally argued in March of last year before a panel of Judges. At that time an opinion was written by Judge Rogers which affirmed an order of the Workmen's Compensation Appeal Board (Board) denying appellant's petition for modification and review of a supplemental agreement entered into by her husband and his employer. DeMontis v. Workmen's Compensation Appeal Board, 372 A.2d 950 (1977). This case was then set down for reargument before the Court en banc. We find no reason to alter the able opinion written by Judge Rogers, and we, therefore, reaffirm both the reasoning and the result
[ 34 Pa. Commw. Page 233]
set forth in that decision. We do, however, wish to add certain comments pertaining to our companion decision in Flynn v. Asten-Hill Manufacturing Co., 34 Pa. Commonwealth Ct. 218, 383 A.2d 255 (1978).
To briefly restate the facts of the instant case, Anthony DeMontis was seriously injured on May 24, 1967, while employed as a gravedigger at the Holy Cross Cemetery in Yeadon, Pennsylvania. On June 7, 1967, Mr. DeMontis entered into a workmen's compensation agreement for total disability. Payment was made under this agreement through May 1 of the following year. On June 13, 1968 a supplemental agreement was executed providing that Mr. DeMontis was able to return to work with a partial disability of 35%.*fn1 Mr. DeMontis received payment for this partial disability from May 2, 1968 until his death on January 4, 1973.
On August 24, 1973, Pauline DeMontis, the widow of Anthony DeMontis, filed two claim petitions. One was a fatal claim petition for which she was awarded benefits by the referee. This award was affirmed by the Board, and was not further contested by any of the parties involved. The other petition was for review and modification of the supplemental agreement, and was filed pursuant to Section 413 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 771 and 772. The panel held that Mrs. DeMontis had no "claim on account of her husband's disability compensation payments, [where] all payments due under the award or agreement with the decedent were made during his lifetime," DeMontis, supra, 372 A.2d at 952, and where no petition for review and modification had been filed by the employee during his lifetime. The soundness
[ 34 Pa. Commw. Page 234]
of that holding is further evidenced by our decision in Flynn, supra.
In Flynn, a case arising under The Pennsylvania Occupational Disease Act (Act), Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq., a widow sought to obtain total disability benefits, and reimbursement for medical and hospital expenses, on behalf of her husband for a period running from August 30, 1967 until his death on October 15, 1967. Mrs. Flynn's husband had not filed a claim petition for disability prior to his death. Mrs. Flynn received benefits as a widow pursuant to her fatal claim petition. She contended in addition, however, that her husband's cause of action did not abate with his death, and that the Act specifically allowed a widow to file for disability benefits on behalf of her husband even when he had filed no such claim during his lifetime. This Court rejected her claim, and specifically held that the Act in no way provided for the survival of an employee's disability claim, when that employee had filed no claim petition in his lifetime. While a widow could file a fatal claim petition, and collect benefits accordingly, she could not, we held, also pursue disability benefits not claimed by her husband in his lifetime.
Accordingly, we will enter the following
Now, March 9, 1978, the order of this Court, No. 1268 C.D. 1976, entered April 25, 1977, in the ...