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VIRGIL TURNER v. JONES & LAUGHLIN STEEL CORPORATION AND WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA (06/05/78)

decided: June 5, 1978.

VIRGIL TURNER, APPELLANT,
v.
JONES & LAUGHLIN STEEL CORPORATION AND WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE



NO. 133 MARCH TERM, 1977, Appeal from the Decision of the Commonwealth Court at No. 45 C.D. 1976, Reversing the Decision of the Workmen's Compensation Appeal Board at Docket No. A-70088 Affirming the Decision of Referee John G. Fahey, Workmen's Compensation Referee, Bureau of Occupational Injury and Disease Compensation

COUNSEL

Thomas W. Henderson, Pittsburgh, for appellant.

Roy F. Walters, Jr., Carl B. Fried, Fried, Kane & Walters, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ.

Author: Manderino

[ 479 Pa. Page 619]

OPINION

Appellant was severely injured on May 13, 1972, in a work-related accident, in the course and scope of his employment with appellee Jones and Laughlin Steel Corporation (J. & L.). The accident severed appellant's spinal cord at chest level, rendering him a complete paraplegic with total loss of

[ 479 Pa. Page 620]

    sensation in the lower body and total loss of use of all body functions below the chest level. There are no expectations of improvement in his condition.

On May 24, 1972, appellant and J. & L. entered into an open compensation agreement under which appellant has been paid $94.00 per week for total disability as authorized by § 306(a) of the Workmen's Compensation Act, 77 P.S. § 511. On July 2, 1973, appellant filed a petition to modify the compensation agreement to an award of compensation for the specific loss of use of both legs, under § 306(c), 77 P.S. § 513(25).

After hearing testimony from medical experts at a modification hearing ordered by the Workmen's Compensation Appeal Board, the referee found as a fact that appellant had lost the use of both legs and awarded him the statutory compensation of $94.00 a week, for a total of 870 weeks -- 410 weeks for each leg plus a 50 week healing period -- retroactive to the date of the accident, with full credit to J. & L. for all payments made under the compensation agreement. On appeal, the Board, in a written opinion, concluded that appellant's injuries "have resolved to a specific loss of use of both legs" and affirmed the referee's order. J. & L. then appealed to the Commonwealth Court, and a three judge panel of that court reversed the order of the Board.

The material facts relevant to this appeal are not in dispute. Both parties agree that appellant's injuries are covered by the Workmen's Compensation Act; that appellant has lost the use of both legs; and that injuries to other parts of his body have rendered him totally disabled. This appeal, therefore, deals only with questions of law regarding how the relevant provisions of the Workmen's Compensation Act are to be applied to the undisputed facts. The issues now before us are (1) whether a claimant who is factually eligible for compensation either on the basis of total disability or specific losses may elect compensation under the provision more beneficial to him; and (2) whether the Board may modify an agreement for total disability compensation to grant specific loss benefits solely on the basis of claimant's election.

[ 479 Pa. Page 621]

The compensation which appellant is now receiving is for total disability, pursuant to § 306(a) of the Act, 77 P.S. § 511. Total disability payments are intended as compensation for loss of earning power, based not upon specific injuries but on the totality of the claimant's condition. See, e. g., Killian v. Heintz Div. Kelsey Hayes, 468 Pa. 200, 360 A.2d 620 (1976); Borough of Catawissa v. Shultz, 9 Pa. Commw. 546, 308 A.2d 633 (1973); Marshall v. City of Altoona, 208 Pa. Super. 465, 222 A.2d 408 (1966). Absent an improvement in appellant's condition terminating his total disability, these payments are available for his lifetime under § 306(a) as amended in 1972.

Appellant wishes, however, to modify the agreement in order to obtain his benefits pursuant to § 306(c), 77 P.S. § 513(25), which is intended specifically to compensate a claimant for the loss of use of designated bodily members rather than for general loss of earning power. Under this section appellant's weekly benefit would remain the same, but compensation would terminate at the end of 870 weeks rather than at appellant's death or the end of his disability.

In the usual case total disability payment would be the most beneficial to a claimant, since its payment is not limited to a term of weeks as is specific loss payment. For this appellant, however, there are economic advantages in securing an award under § 306(c) for the loss of use of his two legs.

Appellant's primary concern is to maximize his monthly income. Appellant receives a permanent incapacity pension of $197.00 per month under the Basic Steel Agreement to which, as a union member, he is a party. The agreement provides that when the employee reaches age 65, any amount received pursuant to Workmen's Compensation law must be deducted from that pension amount. Those fixed statutory payments for loss of bodily members; however, are specifically excepted. Thus, if appellant -- now aged 65 -- receives his compensation as ...


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