Bush v. Workers' Compensation Appeal Board

FRIEDMAN, J.,

Dissenting.

I respectfully dissent. The majority “narrowly” construes section 316 of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 604, to prohibit the commutation of a portion of ongoing total disability benefits. (Majority op. at 684.) For the reasons that follow, I do not accept the majority’s narrow construction of section 316 of the Act.

I. Statutory Language

It is well established that we must liberally construe the provisions of the Act to effectuate its humanitarian objectives, and, in doing so, we must construe borderline interpretations in favor of the injured worker. Harper & Collins v. Workmen’s Compensation Appeal Board (Brown), 543 Pa. 484, 672 A.2d 1319 (1996). Moreover, one of the humanitarian objectives of the Act, set forth in section 316 of the Act, is *685to allow for the commutation of compensation under appropriate circumstances.1

Section 316 of the Act states that the “compensation contemplated by this article may at any time be commuted” if commutation “will be for the best interest of the employe ... and ... will avoid undue expense or undue hardship to either par-ty_” 77 P.S. § 604. The Pennsylvania Supreme Court pointed out years ago that this language in section 316 of the Act is “very broad.” Woodward v. Pittsburgh Engineering & Construction Company, 293 Pa. 338, 341-42, 143 A. 21, 23 (1928). Indeed, the word “compensation” is modified only by the phrase “contemplated by this article,” which refers to Article III of the Act. 77 P.S. § 604. It is indisputable that Article III contemplates compensation for total disability. See section 306(a) of the Act, 77 P.S. § 511. Therefore, based on the clear and unambiguous language in section 316 of the Act,2 I would conclude that the statute permits the commutation of total disability benefits.

The next question is whether section 316 of the Act authorizes a commutation of a portion of ongoing total disability benefits, i.e., a commutation where the lump sum payment does not necessarily satisfy all potential future obligations of the parties. I begin to address this question by pointing out that total disability benefits are “payable for the duration of total disability.” 77 P.S. § 511(1). However, because, in a typical case, it is impossible to predict the duration of total disability, a commutation of the entire amount of total disability benefits cannot properly be accomplished. Indeed, it is impossible to determine in advance the exact amount of total disability benefits payable to a claimant because no one knows when the claimant’s total disability might end. Certainly, the legislature was not unaware that, in allowing for the commutation of total disability benefits payable for the duration of total disability, such a commutation would not necessarily satisfy the future obligations of the parties to one another.3

My analysis of the issue presented here is a simple construction of the plain language of sections 306(a) and 316 of the Act. It avoids the strained analysis set forth in the majority opinion, which openly contradicts the analysis of section 316 of the Act set forth in 1 ALEXANDER F. BARBIERI, PENNSYLVANIA WORKMEN’S COMPENSATION AND OCCUPATIONAL DISEASE § 5.43 (1996).4 *686Quite clearly, section 316 authorizes the commutation of the compensation set forth in Article III, which includes compensation for total disability. Moreover, inasmuch as total disability benefits are payable for the duration of total disability, a period of time that usually cannot be ascertained, a commutation of such benefits that does not satisfy all future obligations is unavoidable.

II. Case Law

In construing section 316 of the Act, the majority admits its reliance on dicta from this court’s case law, which the majority defends as “important policy.” (Majority op. at 683.) This “important policy” is that a commutation of benefits must result in a “severing” of the relationship between the employee and the employer and “the satisfaction of all obligations.” (Majority op. at 683, 684) (emphasis added). However, this court’s case law clearly holds that a commutation might not satisfy all potential future obligations.

Generally speaking, a commutation accelerates payment of and, thus, settles the existing obligations of the parties to one another based on the status of the disability at the time of the commutation.5 However, granting a commutation does not preclude a claimant from receiving additional medical or disability benefits at some future date. Within three years of a commutation, a claimant may petition to reinstate benefits pursuant to section 413(a) of the Act6 based on an increase in disability. See Indiana Floral Company v. Workers’ Compensation Appeal Board (Brown), 793 A.2d 984 (Pa.Cmwlth.2002); Mason v. Workmen’s Compensation Appeal Board (Acme Markets), 156 Pa.Cmwlth. 10, 625 A.2d 1271 (1992). Because there is a possibility that benefits will be reinstated following a commutation, a commutation, in some instances, may not satisfy all potential future obligations of the parties relating to the disability at issue.

In addition to this basic problem with the majority’s policy statement, I point out that the majority derives its policy from the Pennsylvania Superior Court’s decision in Shaftic v. Commonwealth Coal & Coke Co., 106 Pa.Super. 406, 161 A. 773 (1932).7 However, Shaftic does not state that a commutation results in the satisfaction of all obligations. In Shaftic, on three separate occasions, the employer commuted a portion of the employee’s future compensation, i.e., there were three commutations, obviously none of which settled all obligations of the parties to one another. Subsequently, the employee died. In calculating the widow’s benefits, the referee failed to give the employer credit for the commutations. The employer filed an appeal and prevailed before the superior court. In support of the employer’s position, the superior court stated, “Commutation is merely present payment at a reduced rate of sums successively payable; when the commutations ordered in this case were made that much of the liability of the employer was satisfied.”8 Shaftic, 161 A. at 775 (emphasis added).

In other words, the “important policy” that the majority relies upon to prohibit *687commutations that do not satisfy all obligations actually supports such commutations. I believe that the policy, correctly stated, is that, whenever the employer pays an employee an amount owed for a work-related injury pursuant to a commutation of benefits, “that much” of the existing liability of the employer is satisfied. Shaftic, 161 A. at 775. Inasmuch as the majority relies on dicta that misstates the policy expressed in Shaftic, I cannot accept the majority’s view on this matter.

III. Unique Facts

Admittedly, the permissibility of a commutation like the one proposed here is an issue of first impression. However, I see no reason to prohibit such a commutation, particularly in light of the unique facts presented in this case.

Gary R. Bush (Claimant) is seeking approval to commute 360 weeks, or seven years, of total disability benefits. Claimant has received total disability benefits since 1976. After more than twenty-five years of total disability, it appears unlikely that Claimant will recover from his work-related injury. Moreover, in the event that the employer succeeds in establishing a full recovery by Claimant in a termination proceeding, Claimant is entitled to receive 350 weeks of specific loss benefits for his lower leg plus ten weeks of specific loss benefits for his facial disfigurement. In other words, because the employer would be obligated to pay Claimant 360 weeks of specific loss benefits after Claimant is able once again to earn his pre-injury wages, Claimant is able to indemnify the employer for 360 weeks of benefits without any threat to Claimant’s income stream.9

Because the clear and unambiguous language of section 316 of the Act permits a eommutation of a portion of ongoing total disability benefits, I would reverse.

. The majority states that an important purpose of the Act is to provide a regular form of future income for injured workers. (Majority op. at 683.) I agree. However, that is not a problem in the claimant's case. Here, there is a finding that the claimant receives social security disability benefits and, as a result, the claimant will be able to pay his family’s monthly living expenses even without his workers’ compensation benefits. (Findings of Fact, No. 4.) Moreover, a commutation will be approved only when there is a specific finding that the commutation is in the best interest of the claimant. If removing the claimant's steady income stream is not in the best interest of the claimant, the commutation will not be approved. See 77 P.S. § 604.

. "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(b).

. Obviously, I disagree with the majority’s statement that the legislature intended that "the entire total disability award may be commuted, not just a segment of it.” (Majority op. at 684) (bolding in original). However, I maintain my view that “it is practically impossible to ascertain precisely the value of a ... total disability case.” 1 David B. Torrey et al., Pennsylvania Workers’ Compensation: Law and Practice § 5:23 (2000).

. The majority notes that, according to 1 BARBIERI, § 5.43, a commutation under section 316 of the Act is permitted in whole or in part. (Majority op. at 681, n.4.)

. The existing obligations of the parties may be based on a notice of compensation payable, an agreement or an adjudication.

. 77 P.S. § 772.

. See Green v. Workmen’s Compensation Appeal Board, 43 Pa.Cmwlth. 143, 401 A.2d 1243 (1979).

.In making this statement, the superior court relied on Lubanski v. Delaware, Lackawanna & Western Railroad Company, 81 Pa.Super. 538, 542 (1923) (emphasis added), where the court stated, "When [a commutation is] paid ... so much of the transaction was ended and the obligation satisfied.”

. In effect, the 360 weeks of specific loss benefits is an insurance policy for the employer in the event that Claimant's total disability ceases.