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JOSEPH P. KUHN v. WORKMEN'S COMPENSATION APPEAL BOARD (LEADER NURSING CENTERS (09/09/86)

decided: September 9, 1986.

JOSEPH P. KUHN, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (LEADER NURSING CENTERS, INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Rosemary Kuhn, Deceased, Joseph P. Kuhn, Widower v. Leader Nursing Centers, Inc., No. A-83827.

COUNSEL

Donald F. Smith, Jr., Liever, Hyman & Potter, P.C., for petitioner.

Richard A. Bausher, Stevens & Lee, for respondent, Leader Nursing Centers, Inc.

Judges Barry and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 100 Pa. Commw. Page 408]

Joseph Kuhn, the claimant, appeals from an order of the Workmen's Compensation Appeal Board which affirmed a decision of a referee and granted Leader Nursing Centers, Inc., the employer or alleged employer of the claimant, a credit of $150,000.00 towards the employer's ultimate liability for compensation.

On January 24, 1979, Rosemary Kuhn, the claimant's wife, was killed in a three car accident. She was a passenger in an automobile driven by Craig Duffy, an employee of Leader. At the time of the accident, Mr. Duffy and the decedent were enroute to a seminar being conducted by the employer. At the time of the accident, the decedent had been hired by Leader but had not actually commenced employment except for attending the seminar.

The claimant then filed wrongful death and survival actions in the Court of Common Pleas of Berks County against Leader, the Duffy Estate and the drivers of the

[ 100 Pa. Commw. Page 409]

    other two automobiles involved in the accident. Leader attempted to assert its immunity from suit as an employer. The trial court decided to bifurcate the proceedings. The first portion of the trial was to determine the questions of liability and damages for the death of the decedent. If necessary, the second portion would have the jury decide if the decedent had been an employee of Leader. Following the first part of the trial, the jury completely exonerated the other two drivers and found that Leader and the Duffy Estate were liable for damages of $400,000.00. Rather than submit the employment issue to the jury, the claimant agreed to issue a joint tortfeasor release to Leader and the Duffy Estate in return for payment of $200,000.00. Duffy's automobile liability carrier paid $50,000.00 and St. Paul Insurance Co., Leader's automobile liability carrier, paid $150,000.00. The release specifically provided that the question of decedent's status as an employee was left unresolved.

The claimant then sought workmen's compensation death benefits. Leader's compensation carrier, Pennsylvania Manufacturers Association Insurance Co. (PMA), paid $1500.00 as the limit for funeral expenses but refused to pay any weekly benefits, believing (1) that a widower was not entitled to weekly benefits unless he was incapable of self-support and (2) that PMA was entitled to a credit of $150,000.00 because of the aforementioned settlement. Because of a refusal to pay, the claimant filed a fatal claim petition.

In Oknefski v. Workmen's Compensation Appeal Board, 63 Pa. Commonwealth Ct. 450, 439 A.2d 846 (1981), we decided that a widower was entitled to weekly benefits to the same extent as widows. PMA has abandoned its first defense that the claimant was not entitled to weekly death benefits. ...


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