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JOHN E. MARSHALL v. WORKMEN'S COMPENSATION APPEAL BOARD (GULF & WESTERN INDUSTRIAL PRODUCTS COMPANY (12/16/83)

decided: December 16, 1983.

JOHN E. MARSHALL, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GULF & WESTERN INDUSTRIAL PRODUCTS COMPANY, ETC.), RESPONDENTS. MCINTOSH & HEMPHILL, DIVISION OF GULF & WESTERN INDUSTRIAL PRODUCTS COMPANY ET AL., PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (JOHN E. MARSHALL), RESPONDENTS.



Appeals from the Orders of the Workmen's Compensation Appeal Board in the cases of John E. Marshall v. McIntosh & Hemphill, Division of Gulf & Western Industrial Products Company, No. A-80624.

COUNSEL

John J. Petrush, for petitioner/respondent.

Leonard P. Kane, Jr., Fried, Kane, Walters & Zuschlag, for respondent/petitioner.

Judges Williams, Jr., MacPhail and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 79 Pa. Commw. Page 129]

John E. Marshall (claimant) appeals here an order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's order to set off the pension benefits received by the claimant as credits applied against the compensation payable. Appeal No. 37 C.D. 1982. McIntosh and Hemphill (employer) also appeal here the order of the Board which affirmed the referee's order not to dismiss this claim as being untimely filed. Appeal No. 210 C.D. 1982. (The cases were consolidated for argument.)

On October 23, 1969, the claimant was injured in the course of his employment. The parties entered

[ 79 Pa. Commw. Page 130]

    into a compensation agreement which lasted until June 12, 1970, when the claimant signed a final receipt and returned to work. On January 27, 1971, because of a recurrence of the original disability, the parties executed a supplemental agreement and the claimant again received compensation until January 28, 1971, when he executed a second final receipt and returned to work. On May 7, 1971, the parties agreed upon still another supplemental agreement, again because of a recurrence of the original injury, and this agreement lasted until July 7, 1971 when the claimant signed a third final receipt. In October of 1972, the claimant again left his employment because of his 1969 injuries, and upon the advice of his personnel supervisor, he applied for and received sick and accident benefits from October 12, 1972 to October 31, 1973. Then, on November 1, 1973, he was granted payments under a disability pension program which he continues to receive. On March 3, 1977, he filed the instant reinstatement petition requesting reinstatement of compensation benefits effective from 1972. This petition was dismissed by a referee who reasoned that it was not timely filed and was therefore barred by the Act. The Board affirmed, but its order was reversed by this Court in Marshall v. Workmen's Compensation Appeal Board (Marshall I), 43 Pa. Commonwealth Ct. 426, 418 A.2d 768 (1979), which remanded the case to the Board with instructions, inter alia, to accept the claimant's petition as timely filed. The Board, in turn, remanded to the referee, who set aside the final receipt, reinstated compensation, and allowed the pension benefits paid by the employer to be credited against the compensation payable. The Board affirmed this order and, also rejected the employer's claim that the petition was untimely filed.

[ 79 Pa. Commw. Page 131]

No. 37 C.D. 1982

The claimant argues that the Board erred in allowing the pension payments to operate as a set-off against the compensation payments. In Creighton v. Continental Roll and Steel Foundry Co., 155 Pa. Superior Ct. 165, 38 A.2d 337 (1944), our Superior Court held as follows:

[W]hen an employee is totally disabled and the employer, while denying any liability for workmen's compensation, nevertheless pays the employee regular stated amounts, weekly or monthly, either out of its own general funds, or out of sick or accident benefits or relief funds contributed by it, not as wages or salary for work performed, but in relief of the employee's incapacity to labor, on its being determined that the employee is entitled to workmen's compensation, the amount paid by the employer discharges its ...


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