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UNITED STATES STEEL CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD (KAMINSKY) (01/28/88)

decided: January 28, 1988.

UNITED STATES STEEL CORPORATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (KAMINSKY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of John C. Kaminsky, Dec'd v. U.S. Steel Corp., No. A-85178.

COUNSEL

Robert C. Jones, with him, Paul A. Robb, for petitioner.

Ronald Zera, with him, William L. Lowman, and Ada Guyton, for respondents.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 113 Pa. Commw. Page 138]

United States Steel Corporation (employer) here appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed the order of a Referee awarding workmen's compensation benefits to the estate of its former employee, John C. Kaminsky during the course of his employment.

On February 8, 1979, a Referee issued an order awarding Kaminsky 200 weeks of compensation for a facial disfigurement which resulted from a depressed fracture of the skull which he sustained on June 7, 1972 while in the course of his employment. Kaminsky was receiving workmen's compensation benefits for total disability for injuries he had sustained in the same accident which resulted in the disfigurement. Therefore, the Referee's order referred the obligation of the employer to make payment of the disfigurement benefits to the claimant.*fn1 An appeal was taken by the employer challenging only the amount of compensation awarded. In that appeal, the employer did not challenge the suspension of disfigurement benefits for so long as the claimant was receiving workmen's compensation benefits

[ 113 Pa. Commw. Page 139]

    for total disability, the fact that the injury had in fact occurred or that a disfigurement had been sustained by the claimant. On July 26, 1979, the Board modified the amount of compensation which was awarded for the disfigurement from 200 weeks to 180 weeks. The decision of the Referee was affirmed in all other respects. Neither party appealed the decision of the Board.

Kaminsky died on November 14, 1981 due to causes unrelated to his work-related injury. He had received weekly benefits for total disability from the date of his injury on June 7, 1972 until the date of his death. Because he had continued to receive workmen's compensation benefits for total disability until his death, Kaminsky never received payment of disfigurement benefits pursuant to the Referee's award, as modified by the Board.

The instant matter was initiated by the filing of a claim petition on or about April 23, 1982, by Kaminsky's estate. The estate asserted that it was entitled to the payment of the 180 weeks of compensation awarded for Kaminsky's disfigurement which he did not receive during his lifetime. The Referee's decision on the matter was circulated on December 12, 1982. The Referee awarded the estate payment of 180 weeks of compensation and denied payment of statutory funeral expenses. On appeal, the Board affirmed the decision of the Referee, dismissed the appeal and ordered payment to the estate. The Order of the Board is now before this Court for our review.

Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section ...


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