concurring:
I agree with the majority that the trial court erred in distributing husband’s workers’ compensation commutation award as marital property. Even if we were to accept wife’s view that the commutation award is a settlement of a contested claim and not merely a lump sum payment of lost earnings, the circumstances surrounding the award make it clear that the settlement would not be marital property.
Husband’s initial claim for workers’ compensation benefits arose and was granted during his marriage to wife. He received benefits pursuant to that claim during the parties’ marriage and for several months following their separation. Those benefits are not the subject of wife’s claim. Rather, she asserts that the commutation award he received in December, 1991, following the parties’ separation, constituted settlement of a claim arising during the marriage. She argues that the commutation award was thus analogous to the settlement of a tort claim for a personal injury occurring during marriage and divisible as marital property. I cannot agree.
First, I agree with the majority that the commutation award must be viewed as compensation for loss of future earnings. Perusal of the Pennsylvania Workmen’s Compensation Act, 77 P.S. §§ 1-1066, makes it clear that a workers’ compensation claim is an employee’s exclusive remedy for job-related injuries and thus replaces any tort action the employee might have had against the employer. 77 P.S. § 481. However, it is equally clear that under the Act, benefits pursuant to a workers’ compensation claim are based solely on the employee’s wages and do not include any compensation for pain and suffering or other damages recoverable in tort. See, e.g., 77 P.S. §§ 511, 512, 582. It is thus clear, as the majority concludes, that the commutation award received by husband represents compensation for lost future earnings only and not the settlement of any other claim in which wife might share. It thus should be excluded from marital property. Ciliberti v. Ciliberti 374 Pa.Super. 228, 542 A.2d 580 (1988).
Further, even if we were to accept wife’s characterization of the commutation award as a settlement of a disputed claim for ongoing periodic payments of workers’ compensation benefits, it is clear from the circumstances of this case that the claim compromised by the settlement falls within the exclusion from marital property defined by 23 Pa.C.S. § 3501(a)(8).
Husband received full ongoing workers’ compensation benefits up until the date he agreed to a modification of his benefits in December, 1991, after the parties’ separation. The modification of his status to partial disability and the commutation of his payment stream to a lump sum were effective as of the date he agreed to the modification, not retroactively to the date on which his employer filed its petition to terminate benefits. The commutation award thus compromised, not his claim to the benefits he had already received, but his claim to full benefits in the future in the face of his employer’s claim that his benefits should be terminated completely for refusal of medical treatment. The claim that was settled by husband’s acceptance of the modification and commutation was for ongoing benefits after December, 1991. *637Clearly, tWs claim did not accrue until after the parties’ final separation in August, 1991. Accordingly, the commutation award is a “payment received as a result of an award or settlement for [a] ... claim which accrued ... after the date of final separation,” 23 Pa.C.S. § 3501(a)(8) and properly excluded from marital property.