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JOHN LASTOKA v. COMMONWEALTH PENNSYLVANIA (04/21/80)

decided: April 21, 1980.

JOHN LASTOKA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND WHEELING-PITTSBURGH STEEL CORPORATION, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Lastoka v. Wheeling-Pittsburgh Steel Corporation, No. A-75978.

COUNSEL

Patrick F. McArdle, with him Edwin H. Beachler, McArdle, Caroselli, Spagnolli & Beachler, for petitioner.

Francis P. Massco, for respondent.

President Judge Crumlish and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 51 Pa. Commw. Page 311]

John Lastoka has appealed from a decision of the Workmen's Compensation Appeal Board, amending a referee's award of benefits so as to suspend the employer's obligation for interest on due and unpaid compensation until the date of the award.

Mr. Lastoka was employed by Wheeling-Pittsburgh Steel Corporation in various capacities for approximately thirty-two years. On April 5, 1976, he filed a claim petition for workmen's compensation benefits alleging that he had suffered a total loss of hearing in his left ear as a result of exposure to high noise levels in his employment. A referee conducted a hearing and on September 15, 1978, awarded compensation at the rate of $187.00 per week beginning April 2, 1976 for a period of sixty weeks with "interest at the rate of ten (10%) percent per annum in accordance with Section 406.1 of [The Pennsylvania Workmen's Compensation Act*fn1]" which provides in pertinent part:

[ 51 Pa. Commw. Page 312]

The employer and insurer shall promptly investigate each injury reported or known to the employer and shall proceed promptly to commence the payment of compensation due either pursuant to an agreement upon the compensation payable or a notice of compensation payable as provided in Section 407 [77 P.S. ยง 731], on forms prescribed by the department and furnished by the insurer. The first installment of compensation shall be paid not later than the twenty-first day after the employer has notice or knowledge of the employe's disability. Interest shall accrue on all due and unpaid compensation at the rate of ten per centum per annum.

Wheeling-Pittsburgh appealed only that portion of the referee's decision awarding interest, arguing that Section 406.1 requires that interest be awarded from the date of the referee's decision rather than from the date of disability. The Appeal Board agreed with Wheeling-Pittsburgh and amended the referee's award to provide interest "effective September 15, 1978." This appeal by Mr. Lastoka followed. We reverse.

The sole question presented is: When does compensation become due and unpaid for the purpose of the accrual of interest on due and unpaid compensation under Section 406.1? Section 406.1 clearly provides that the first installment of compensation is due not later than twenty-one days after the employer has notice or knowledge of the disability. The parties agree that Wheeling-Pittsburgh had knowledge of Mr. Lastoka's disability on April 6, 1976, when it filed an answer to the claim petition. Compensation was therefore due no later than April 27, 1976 and we will amend the ward to provide that date as the time when interest became payable.

[ 51 Pa. Commw. Page 313]

This result is consistent with our decision in Klingler v. Workmen's Compensation Appeal Board, 50 Pa. Commonwealth Ct. 336, 413 A.2d 432 (1980), where we held that interest payments are designed to put a claimant in the same position as if no contest had been made and are, therefore, part of the compensation due. Similarly, in Mathies Coal Co. v. Workmen's Compensation ...


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