June 25, 1980
DUQUESNE LIGHT COMPANY, PETITIONER
WILLIAM H. BUNDY, RESPONDENT
53 Pa. Commw. 60.
President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, Craig and Williams, Jr. Judge MacPhail did not participate. Opinion by Judge Rogers.
[ 53 Pa. Commw. Page 65]
This is the appeal of the Duquesne Light Company (Duquesne) from an order of the Workmen's Compensation Appeal Board affirming a referee's award of benefits to William H. Bundy, a former employee of Duquesne. In Duquesne Light Company v. Bundy, 53 Pa. Commonwealth Ct. 60, 409 A.2d 975 (1980), we affirmed the Board's decision as to the award of benefits but remanded the record for further proceedings concerning what, if any, credit Duquesne should receive for payments it made to Bundy during his disability. After reargument, ordered because both parties contended that we misapprehended the facts, the record or the law, we reach the same conclusions as we had before. We do not therefore disturb our order of January 11, 1980, but we declare the following as our definitive opinion in support of our order in place of that filed before.
Bundy worked as a welder for Duquesne for more than thirty-two years. In the course of his employment, he sustained disabling injuries to his left knee in
[ 53 Pa. Commw. Page 661973]
and to his right knee in 1974 and he received workmen's compensation benefits at the appropriate rates for each disability. After recovering, he returned to work for fourteen months until March 22, 1976 when he tripped on a raised grating on the floor of Duquesne's premises and fell injuring his left knee. Bundy was unable to return to work after that date and Duquesne resumed paying workmen's compensation benefits at the rate established for the 1973 injury to his left knee. For seven months following the injury, Duquesne made additional payments so that Bundy's income during this period equaled the full base pay he would have earned if he had been working. It continued paying compensation at the 1973 rate until May 1, 1977, when Bundy underwent surgery on his right knee. Duquesne thereafter paid compensation at the rate established for the 1974 injury to his right knee.
Bundy meanwhile filed a claim petition for compensation benefits at the higher 1976 rate, claiming that his disability was the result of a new injury to his left knee caused by his fall on March 22, 1976. After a hearing at which Bundy and a fellow employee testified and letters from Dr. C. W. Vates and hospital records were received, a referee by decision made April 20, 1978 found that Bundy was totally disabled as a result of a new injury to his left knee sustained on March 22, 1976 and awarded compensation accordingly. Duquesne appealed to the Board, which affirmed the referee.
There is clearly substantial evidence of record to support the referee's finding that Bundy sustained a new injury to his left knee in 1976. Duquesne contends, nevertheless, that the disability relating to the left knee terminated on May 1, 1977 when the right knee was operated on, and that it should be liable after that date only for the disability relating to the right knee at the 1974 rates. The question of whether
[ 53 Pa. Commw. Page 67]
the disability relating to the left knee continued after May 1, 1977 was, however, one of fact for the referee, who made the following finding:
9. Based upon sufficient and competent medical evidence of record in this case from Dr. C. W. Vates, Jr., your Referee finds as a fact that claimant had numbness, pain and disability involving his left knee as a result of his fall at work on March 22, 1976. He had increased symptomatology following this injury and he subsequently came to a total knee replacement. Claimant is, at the present time, recovering from this. He is totally disabled from said injury.
This finding is supported by a letter of Dr. Vates dated April 3, 1978, in which he wrote: "[Bundy] had a fall on March 22, 1976, following which he had numbness, pain and disability involving the left knee. He had, certainly increased symptomatology following this injury and he subsequently came to a total knee replacement. The patient is, at the present time, recovering from this." (Emphasis added.) The referee was not required to infer from this or any other evidence in the record that Bundy's disability on account of the left knee terminated on May 1, 1977.*fn1
[ 53 Pa. Commw. Page 68]
Duquesne next says that it is entitled to credit against its workmen's compensation liability in the amount of $6,103.57 it paid to Bundy from March 23, 1976 to October 22, 1976. Duquesne would be entitled to such a credit if it made the payments in relief of Bundy's incapacity to work and not as "incident[s] or benefit[s] provided under the work agreement . . . like wages for services performed." Temple v. Department of Highways, 445 Pa. 539, 542, 285 A.2d 137, 139 (1971). See also, Steinle v. Workmen's Compensation Appeal Board, 38 Pa. Commonwealth Ct. 241, 393 A.2d 503 (1978); Creighton v. Continental Roll & Steel Foundry Co., 155 Pa. Superior Ct. 165, 38 A.2d 337 (1944). Here, the referee made the following conclusion:
3. The self-insured defendant is not entitled to credit for voluntary payments it made to claimant from March 23, 1976 through October 22, 1976 in the total sum of $6,103.57. These were not workmen's compensation payments.
The referee's characterization of the payments as "voluntary" suggests that they were made in relief of Bundy's disability. However, he made the inconsistent conclusion that Duquesne was not entitled to credit. We will therefore remand the record to the Board for a hearing to resolve this inconsistency and the parties at that time may adduce additional evidence concerning these payments.
Affirmed in part and remanded in part.