Yeager v. Workmen's Compensation Appeal Board

FRIEDMAN, Judge,

dissenting.

On appeal to this court, Yeager maintains that because he had received a lump sum commutation as a result of his prior injury, he was not receiving concurrent compensation payments in excess of the maximum amount prescribed by law following his second work-related injury. Yeager reasons that the limitations in sections 306(a) and 306(b) of the Act, 77 P.S. §§ 511 and 512, are upon the receipt of more than the maximum allowable compensation at any one time. Thus, Yeager argues that the referee and Board erred by basing their determinations on the fact that following his second injury, Yeager was still receiving $100 a week as a result of the October 17, 1982 work injury. On the contrary, Yeager contends that at the time he sustained his March 25, 1987 injury, he was not receiving any compensation payments as a result of his prior injury because he had already received all those benefits on January 24, 1985 when he was paid a lump sum of $50,000 in commutation of the partial disability payments related to his October 17, 1982 injury. Thus, Yeager concludes that where he was receiving no benefits at the time of his second injury, he could not have been receiving more than the maximum compensation rate following that injury.

Employer responds that because commutation is merely the sum of all future installments, Yeager should not, by virtue of the lump sum payment, be entitled to receive benefits for partial disability in addition to receiving benefits for total disability where, together, the amounts would exceed the statutory maximum. Ingram v. W.J. Rainey, *1380Inc., 127 Pa.Superior Ct. 481, 193 A. 335, 338 (1937); Varghese v. Workmen’s Compensation Appeal Board (M. Cardone Industries), 132 Pa.Commonwealth Ct. 482, 573 A.2d 630 (1990), appeal denied, 527 Pa. 659, 593 A.2d 429 (1990). Employer also asserts that an employee cannot recover for partial and total disability simultaneously because it is impossible for an employee to be partially and totally disabled at the same time. Hartner v. Workmen’s Compensation Appeal Board (Phillips Mine & Mill, Inc.), 146 Pa.Commonwealth Ct. 167, 604 A.2d 1204 (1992), appeal denied, 531 Pa. 662, 613 A.2d 1210 (1992).

In resolving this dispute, the majority concludes that where a claimant suffers a permanent partial disability while working for one employer and the compensation is commuted and, during the period covered by the commuted partial disability payments, the claimant is rendered totally disabled as a result of a second injury with a different employer, that claimant, by being paid maximum total disability benefits for his second injury, is receiving compensation payments in excess of the maximum amount prescribed by law. I would hold that he is not and, thus, respectfully dissent.

I derive guidance from our decision in Mason v. Workmen’s Compensation Appeal Board (Acme Markets), 156 Pa.Commonwealth Ct. 10, 625 A.2d 1271 (1992), in which we considered the effect of a commutation of benefits on the timeliness of a claimant’s reinstatement and modification petitions. In Mason, as here, a claimant petitioned for and was granted commutation of his partial disability benefits. The claimant received a lump sum payment of $25,000 in 1981; however, in 1987 and 1988 respectively, the claimant filed a reinstatement petition and a modification petition, each alleging total disability as of 1981. The referee in Mason dismissed the petitions as time-barred, determining that the petitions exceeded the three year limitation provided by section 413(a) of the Act, 77 P.S. § 772.1 However, on appeal, the Board concluded that the petitions were timely filed. We reversed on the timeliness issue, stating:

Here, the $25,000 lump sum payment in commutation of the claimant’s partial disability benefits effectively compensated him for the balance of his entitlement. Upon his receipt of all benefits payable pursuant to the commutation order, there was no remaining period during which such benefits might be resumed and no suspension of benefits to which a reinstatement petition could apply. Therefore, the petitions filed six years after the receipt of the last payment due were time barred.

Mason, 156 Pa.Commonwealth Ct. at 13, 625 A.2d at 1272-73 (citations omitted). Thus, despite recognizing that a commutation represents an advance payment of future partial disability entitlement, we held that a claimant should not be deemed to be receiving those payments throughout the period of entitlement; rather, we considered the partial disability fully paid on the date of the lump sum payment instead of pro-rating the payments represented by the lump sum amount over the 500 week period.2 Applying the reasoning of Mason here, I would conclude that once Yeager received the $50,000 lump sum payment from Combustion Engineering, he was effectively compensated for the entirety of his 500 week entitlement period so that, in effect, any subsequent injury should be deemed to have occurred after the 500 weeks had elapsed.

*1381Based on this analysis of Mason, I can readily distinguish Ingram and Varghese, cases relied on by the referee, the Board, the Employer and the Majority, because neither Ingram nor Varghese involved the commutation of benefits. In Ingram, a claimant sustained severe neck injuries in the course of his employment. Approximately one month later, he was involved in another accident with the same employer, this time suffering an entirely separate disability resulting from the permanent loss of the use of two fingers. The claimant received benefits for the disability attributable to his neck injury at the maximum rate of $15 a week for 25 weeks. In addition, the claimant and his employer entered into an agreement under which the claimant was paid compensation for the permanent loss of the use of his fingers at the rate of $15 a week for 35 weeks. Thus, for a period of approximately five months, the claimant was receiving $SO per week for his total disability. However, the court determined that under the Act, the claimant could only receive the statutory weekly maximum of $15, regardless of the character or extent of his disability, and, thus limited his benefits of $15 per week from the time of his first injury until the end of the longest period involved.3

In Varghese, the claimant sustained an orthopedic injury in the course of his employment and received compensation until his return to work, at which time he signed a final receipt. Subsequently, the claimant suffered a work-related pulmonary problem and ultimately had to stop working for the employer. The claimant then filed a petition for compensation with respect to his pulmonary illness and also filed a petition to set aside the final receipt in connection with his orthopedic injury. Initially, the referee awarded benefits pursuant to both petitions, resulting in overlapping awards. However, the Board’s order suspended compensation for the pulmonary problem based on the claimant’s receipt of compensation for his orthopedic injury, for which he received the higher compensation rate. We affirmed the Board, concluding that even though the claimant’s periods of disability overlapped, he could not receive more than the maximum amount prescribed by the Act.

Thus, neither Ingram nor Varghese required the court to resort to a fiction that the claimant was receiving benefits from two claims simultaneously; instead, in both cases, the courts were concerned with a claimant’s tangible, concurrent receipt of two separate payments for two separate disabling injuries, so that the claimants in those eases, unlike Yeager here, would actually receive and, thus, have available for use, two payments at the same time.

My determination is also supported by our decision in Fahringer v. Workmen’s Compensation Appeal Board (Green), 107 Pa.Commonwealth Ct. 597, 529 A.2d 56 (1987), in which we determined that an employer is not entitled to recover for overpayments made under an agreement which no longer exists. In Fahringer, an employee, pursuant to a 1977 notice of compensation payable, received total disability benefits through 1981 at the maximum weekly rate, based upon wages of $300.25 per week. In 1982, in accordance with a supplemental agreement, the employee received partial disability payments of $115.66 based on an earning power of $127.00 per week. In 1983, the parties stipulated that the employee’s average weekly wage was $211.84, not $300.25, and, therefore, the correct rate for partial disability was $56.56. Because the miscalculation of the employee’s weekly wage extended back to 1977, the employer sought to recoup $18,-320.07, representing the overpayment from 1977 until 1983. We determined that the employer was entitled to restitution; however, we recognized that our power to award restitution was limited to correcting errors in *1382existing agreements. We then concluded that the original 1977 agreement no longer existed, having been replaced by the supplemental agreement in 1982, and, thus, the employer could not recover overpayments made under that first agreement but, rather, was restricted to restitution only under the later agreement.

I would apply similar reasoning here. We have held previously that once a commuted amount is paid, the relationship between employer and employee is settled and all obligations are satisfied. Green v. Workmen’s Compensation Appeal Board, 43 Pa.Commonwealth Ct. 143, 401 A.2d 1243 (1979). In effect, once the commutation amount is paid, the agreement between the claimant and the employer paying the commutation ceases to exist. On this basis, Yeager’s commutation agreement with Combustion Engineering, under which Yeager received $50,000 to fully compensate him for his first injury, no longer existed at the time of his second injury with Employer. Certainly, if the employer in Fahringer, which actually paid its employee more than the amount to which he was entitled for total disability, cannot recover those overpayments based on the non-existence of the agreement under which they were paid, Employer here, who has paid Yeager no more than the compensation payable for Yeager’s total disability, is not entitled to be relieved of any “overpayment” based on an equally nonexistent agreement.

I note that the Majority relies on our recent cases of Tomlinson v. Workmen’s Compensation Appeal Board (J. Baker, Inc.), 167 Pa.Commonwealth Ct. 329, 648 A.2d 96 (1994) and Wentz v. Workmen’s Compensation Appeal Board (Consolidated Freightways, Inc.), — Pa.Commonwealth Ct.-, 654 A.2d 90 (1995), in support of its decision. Neither of these cases alter my view here and, in fact, I would have applied the reasoning set forth in this dissent in both Tomlinson and Wentz.

Accordingly, I would reverse.4

. Section 413(a) provides that a petition for modification or reinstatement must be filed within three years after the date of the most recent payment of compensation, provided that "where compensation has been suspended ... payments ... may be resumed at any time during the period for which compensation for partial disability is payable." 77 P.S. § 772.

. Both Employer and the Majority contend that Mason is inapplicable here because Mason did not involve whether a claimant could collect more than the maximum benefits allowed by the Act but, rather, concerned itself only with the timeliness of the claimant’s petitions. While this distinction certainly exists, it does not prevent the Mason rationale from applying here. Clearly, in Mason, the untimeliness of the claimant’s petition rested on our determination that the employer’s last payment was on the date that the lump sum commutation was paid. Accepting Employer's analysis, the result in Mason would differ because the last payment would not be deemed to occur until the 500th and final week represented by the commutation payment.

. Ingram was the first appellate decision dealing with a situation in which a claimant while totally disabled and entitled to compensation under section 306(a) of the Act, 77 P.S. § 511, sustained injuries to another part of his person, in a separate incident but in the course of the same employment, which entitled him to compensation for specific loss under section 306(c) of the Act, 77 P.S. § 513. More recently, recognizing the unique nature of specific loss benefits, we reached a different conclusion in Acme Markets, Inc. v. Workmen's Compensation Appeal Board (Hopiak), 127 Pa.Commonwealth Ct. 553, 562 A.2d 419 (1989), appeal denied, 525 Pa. 648, 581 A.2d 574 (1990).

. Yeager also presented several public policy arguments in support of his position, one of which merits comment here. Yeager contends that adopting Employer's position will discourage the practice of commuting benefits and, thereby prevent an employee’s prompt return to work. However, I find this to be a rather strange argument because, in fact, commutation of benefits is discouraged under the Act. Rather, it is the obvious intent of the Act that an injured employee receive a regular form of future income, made in periodic installments as were the wages of the employee before the injury. Section 308 of the Act, 77 P.S. § 601. The Act is remedial in nature and is, in effect, an income maintenance program. Creen. The receipt of all future payments in one lump sum defeats this purpose because the employee may be incapable of handling the large sum and, thus, the payment may become dissipated or lost, resulting in the employee or his dependents becoming public charges. See Barbieri, Pa.Work.Comp. § 5.43. In keeping with the remedial purpose of the Act, I cannot agree that an employee who is totally disabled should receive less than the total disability payments to which he is entitled when, in reality, he is receiving no other benefits at that time.