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MARY E. REED v. COMMONWEALTH PENNSYLVANIA (06/24/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 24, 1980.

MARY E. REED, WIDOW OF JAMES T. REED, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND STORK DIAPER SERVICE, INC., RESPONDENT

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Mary E. Reed, widow of James T. Reed v. Stork Diaper Service, Inc., No. A-72313.

COUNSEL

David F. Kaliner, for petitioner.

Lowell A. Reed, Jr., with him Patricia A. Mattern, Rawle & Henderson, for respondent, Stork Diaper Service, Inc.

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

Author: Mencer

[ 52 Pa. Commw. Page 326]

On July 3, 1974, James T. Reed, now the deceased husband of Mary E. Reed (claimant), sustained a work-related and compensable injury which resulted

[ 52 Pa. Commw. Page 327]

    in the amputation of his right leg above the knee. In this workmen's compensation case, the decedent was awarded a specific loss benefit to cover a period of time of 410 weeks plus a 25-week healing period.

On June 12, 1975, the decedent suffered an amputation of his lower left leg, as a result of his first injury. A supplemental agreement for compensation under date of March 26, 1976 was entered into by decedent and his employer, Stork Diaper Service, Inc. One of the provisions of that supplemental agreement was that the loss of both of decedent's legs "shall constitute total disability, unless the [Workmen's Compensation] Appeal Board otherwise determines." The Workmen's Compensation Appeal Board (Board) did not "otherwise determine" and the decedent was paid total disability benefits until his death of an unrelated cause on July 15, 1976.

Thereafter, the claimant, widow of James T. Reed, filed a petition to review existing compensation agreement, seeking to obtain further compensation benefits for the specific losses suffered by her husband. The referee awarded the claimant the balance of the specific loss payments but, on appeal, this award was reversed by the Board. This appeal followed*fn1 and we affirm.

The Pennsylvania Workmen's Compensation Act (Act)*fn2 provides for three classifications for compensation,

[ 52 Pa. Commw. Page 328]

    to a claimant, since its payment is not limited to a term of weeks as is specific loss payment.

Thus, it is understandable that James T. Reed, on March 26, 1976, elected,*fn3 when he signed the supplemental agreement, to receive total disability payments in accord with Section 306(c)(23),*fn4 in lieu of specific loss payments. There is nothing in the Act which required that James T. Reed be compensated under the schedule for specific loss compensation when he also was eligible to be compensated under the schedule for total disability. Turner v. Jones & Laughlin Steel Corp., supra, note 1.

[ 52 Pa. Commw. Page 330]

Therefore, having elected to receive total disability benefits paid pursuant to Section 306(a), the benefits paid to James T. Reed for total disability ceased at the date of his death which was unrelated to the injuries suffered by him within the course of his employment.

We must conclude, as did the Board, that it was within the discretion of James T. Reed to determine whether he wished to be compensated for total disability according to the provisions of Section 306(a) or to be compensated for specific loss of his legs according to the provisions of Section 306(c). Once having made the choice to be compensated for total disability, neither he nor the Board having made any determination to the contrary, the right to choose did not survive his death and his widow, claimant here, could not, after his death, initiate a petition to modify such compensation. The right of a widow to compensation is a separate cause of action, independent of and not derivative from the right of the deceased husband. Kujawa v. Latrobe Brewing Co., 454 Pa. 165, 312 A.2d 411 (1973).*fn5

Accordingly, we enter the following

Order

And Now, this 24th day of June, 1980, the order or the Workmen's Compensation Appeal Board, dated

[ 52 Pa. Commw. Page 331]

June 21, 1979, reversing the order of the referee and dismissing the claim petition of Mary E. Reed, widow of James T. Reed, is hereby affirmed.

Disposition

Affirmed.


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