# E. Riehl v. Beiler Brothers, LLC (WCAB)

> Commonwealth Court of Pennsylvania · November 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10742515

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** November 18, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Fizzano Cannon
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10742515

## How later opinions describe it (automated extraction)

- discussing another case where a widow sought death benefits on the basis that her husband’s fatal heart attack was causally connected to a work-related heart attack that occurred 23 years earlier

## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elmer Riehl, :
Petitioner :
:
v. :
:
Beiler Brothers, LLC (Workers’ :
Compensation Appeal Board), : No. 1563 C.D. 2023
Respondent : Argued: September 11, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge

OPINION
BY JUDGE FIZZANO CANNON FILED: November 18, 2024

The widow of Elmer Riehl (Claimant’s widow) petitions for review
from the December 1, 2023, order of the Workers’ Compensation Appeal Board
(Board), which denied as moot Claimant’s petition to convert his benefits from total
disability (TTD) to specific loss after a prior remand by the Board to the workers’
compensation judge (WCJ) for hearings, evidence, and findings of fact. Upon
review, we vacate and remand to the Board for further proceedings in accordance
with this opinion.

I. Factual & Procedural Background
Claimant sustained a disabling work-related injury in October 2011.
Certified Record (C.R.) at 24. Beiler Brothers, LLC (Employer) accepted the injury
via a Notice of Compensation Payable and began paying TTD to Claimant. Id. The
injury was ultimately described as incomplete tetraplegia with depression and
anxiety resulting from the October 2011 incident. Id. In June 2020, Claimant filed
a petition to convert his TTD to specific loss benefits, which are available when a
claimant permanently loses the use of a body part. Id. In November 2020, the WCJ
dismissed the petition without prejudice to be refiled in the Board’s original
jurisdiction, which Claimant did later that month. Id. at 69; see Section 306(c)(23)
of the Workers’ Compensation Act (Act),1 77 P.S. § 513(23) (stating that “[u]nless
the board shall otherwise determine, the loss of both hands or both arms or both feet
or both legs or both eyes shall constitute total disability”). In August 2021, the Board
referred the matter to the WCJ to produce findings of fact; the matter would then
return to the Board, which retained jurisdiction. Id. at 425.
The WCJ held hearings and accepted evidence, including Claimant’s
previously recorded deposition testimony, Claimant’s widow’s hearing testimony,
which included that at the time of Claimant’s death, he had no income other than his
TTD and Social Security disability benefits, and depositions from doctors for both
sides. Unfortunately, during that phase of the litigation, Claimant passed away in
November 2021 from sepsis resulting from bedsores that developed from his work-
related tetraplegia. C.R. at 25. Claimant’s widow continued the litigation as his
surviving spouse and estate executrix. Id. Claimant’s doctor testified that
Claimant’s mental health conditions were not physically correlated to his injuries,
but are a recognized secondary result of living with a disability. Id. at 240-41. Both
doctors opined that Claimant’s death was due to his work-related injuries. Id. at 29
& 31.

1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513(23).

2
In proposed conclusions of law for the Board, the WCJ stated in a July
26, 2022, opinion that Claimant had met his burden of proof for specific loss benefits
based on his permanent loss of use of both arms and both legs, although the WCJ
did not specifically propose an amount of benefit weeks due to Claimant. C.R. at
34. The WCJ also stated that Claimant’s mental health conditions constituted a
disability separate and apart from his work-related physical injuries, so he was
entitled to TTD followed by specific loss benefits, against which Employer could
not claim a credit for past-paid TTD. Id. at 32 & 34. The WCJ also opined that
Claimant’s death was due to his work injuries. Id. at 35.
Because the Board’s August 2021 referral to the WCJ for factfinding
predated Claimant’s death, the Board had not included any instructions in that
regard. See id. at 425. However, the WCJ accepted legal arguments from both sides
concerning whether Section 306(g) of the Act precluded Claimant’s widow from
receiving his posthumous specific loss benefits because his death was due to his
work injuries. Id. at 32-34; see 77 P.S. § 541 (stating that “[s]hould the employe die
from some other cause than the injury, payments of compensation to which the
deceased would have been entitled to under [the specific loss provision of the Act]
shall be paid to” surviving dependents).
In the proposed conclusions of law, the WCJ stated that in accordance
with the plain language of Section 306(g), Claimant’s death from his work injuries
barred his widow’s entitlement to his specific loss benefits. C.R. at 35. Claimant’s
widow had argued for an equitable solution because 301(c)(1) of the Act, 77 P.S. §
411(1), precludes fatal claim survivor benefits if a claimant’s death from work

3
injuries occurs more than 300 weeks after the injury, as was the case here. 2 Id. at
33. The WCJ expressed sympathy for Claimant’s widow, who by operation of the
Act would receive nothing in this case but stated that he was constrained to follow
the law as written. Id. at 34. Although the matter automatically returned to the
Board, Claimant’s widow filed a protective appeal on the legal issue of her eligibility
for some form of survivor benefits in this matter. Id. at 38.
Adopting the WCJ’s findings of fact, the Board stated that if Claimant
had not died while his petition was being litigated, it would “likely” have awarded
conversion of his TTD to 1,640 weeks of specific loss benefits. C.R. at 70-71 & 77.
The Board explained that this was due to Claimant’s loss of use of both arms and
legs (each having a value of 410 weeks pursuant to Section 306(c) of the Act, 77
P.S. § 513) and having shown that it was financially advantageous for himself and
his family.3 Id. at 77 (citing Arnold v. Workers’ Comp. Appeal Bd. (Lacour Painting,
Inc.), 110 A.3d 1063, 1069-70 (Pa. Cmwlth. 2015)).
However, the Board concluded that Claimant’s petition became moot
when he passed away because his death was due to his work injuries and Section
306(g) of the Act bars specific loss benefits for a surviving dependent in that
circumstance. C.R. at 78. The Board acknowledged that Claimant’s widow might
be left without a remedy because fatal claim benefits, which are available to a
surviving dependent when the claimant’s death is due to the work injury, are not
available if the death occurs more than 300 weeks after the injury. Id. at 80 (citing

2
Claimant’s injury occurred on October 6, 2011. Three hundred weeks from that date
elapsed on July 6, 2017. Claimant’s November 7, 2021, work-related death clearly exceeded the
statutory limit for his widow to seek fatal claim benefits.

3
The Board first acknowledged the protective nature of Claimant’s widow’s appeal and
denied Employer’s motion to quash on the basis that the WCJ’s determination was not final. C.R.
at 74.

4
Section 301(c)(1) of the Act). Like the WCJ, the Board expressed sympathy but was
constrained to follow the plain language of the Act. Id. at 80-81. Claimant’s widow
timely appealed to this Court.4

II. Issues & Arguments
Claimant’s widow points out that the intended interplay of Section
306(g), which makes specific loss benefits heritable when the claimant dies of a non-
work-related cause, and Section 307, which allows fatal claim benefits for surviving
dependents when the claimant dies of their work injury, is to avoid double recovery
of benefits. Claimant’s Widow’s Br. at 12. However, Claimant’s death occurred
more than 300 weeks after the work injury and pursuant to Section 301(c)(1), his
widow, a surviving dependent will receive nothing. Id. at 13. Claimant’s widow
avers that this is a harsh and unjust result that the General Assembly could not have
intended. Id.
Claimant’s widow asserts that Section 410 of the Act, 77 P.S. § 751,
should apply here to allow her to receive Claimant’s specific loss benefits regardless
of the cause of his death. Claimant’s Widow’s Br. at 14-16. This is because
Claimant’s petition to convert his benefits from TTD to specific loss was in litigation
at the time of his death and was ultimately found meritorious by the Board. Id. Last,
Claimant’s widow asserts that in the alternative, this Court should interpret Section

4
“[This Court’s] review determines whether there has been a violation of constitutional
rights, whether errors of law have been committed, whether [B]oard procedures were violated, or
whether necessary findings of fact are supported by substantial evidence.” Bryn Mawr
Landscaping Co. v. Workers’ Comp. Appeal Bd. (Cruz-Tenorio), 219 A.3d 1244, 1252 n.5 (Pa.
Cmwlth. 2019). When an “appeal requires [this Court] to interpret statutory provisions[,] . . . it
presents a pure question of law over which our standard of review is de novo and our scope of
review is plenary.” City of Phila. Fire Dep’t v. Workers’ Comp. Appeal Bd. (Sladek), 195 A.3d
197, 207 (Pa. 2018) (italics added).

5
301(c)(1) to mean that even though Claimant’s death was medically due to his work
injury, it was not legally due to his work injury because it occurred after 300 weeks
had elapsed from the incident. Id. at 16-18 (citing Tooey v. AK Steel Corp., 81 A.3d
851 (Pa. 2013)). Accordingly, because Claimant’s death was not legally due to his
work injury, his widow should receive his specific loss benefits. Id.
Employer responds that the Act’s plain language in Section 306(g)
limits the heritability of specific loss benefits to where the claimant’s death is not
from work-related causes and that this principle has been upheld in multiple cases.
Employer’s Br. at 10-14. Employer asserts that Claimant’s widow’s Section 410
arguments are waived because they were not presented to the Board. Id. at 14.
Employer also argues that Section 410 does not apply because it is a general
provision in conflict with Section 306(g), which specifically states that if a
claimant’s death is due to the work injury, specific loss benefits will not be heritable
to surviving dependents. Id. at 15-16. Lastly, Employer avers that Section 301(c)(1)
cannot be manipulated to mean that a claimant’s death that is undisputedly due to
his work injury is not “legally” due to his work injury if it occurs more than 300
weeks after the incident. Id. at 17-19.

III. Discussion
A. Waiver
We first address Employer’s argument that Claimant failed to raise
Section 410 as a basis for relief before the Board in its original jurisdiction and,
accordingly, waived the claim on appeal to this Court. Claimant’s widow’s
argument to the Board was based on equitable considerations and the position that
because Claimant’s death occurred more than 300 weeks after the work incident that

6
caused his injuries, it should be considered a non-work-related death as a matter of
law even though there was no medical dispute that his death was due to his work
injuries. C.R. at 78-81. In that construct, according to Claimant’s widow, deeming
Claimant’s death not work-related would render his specific loss benefits heritable
to her. Id. at 78-80.
Claimant’s widow did not pursue Section 410 as a means of recovering
Claimant’s specific loss benefits when this matter was before the Board in its
original jurisdiction, although she did raise Section 410 in her petition for review to
this Court. Petition for Review at 4. In many instances, this would be a clear basis
to find waiver, as Employer argues here. See Rox Coal Co. v. Workers’ Comp.
Appeal Bd. (Snizaski), 807 A.2d 906, 913-14 (Pa. 2002). However, our courts have
held that as a general rule, when statutory provisions are mandatory, they cannot be
waived. St. Elmo Development, LLC v. Zoning Hearing Bd. of the City of Allentown,
320 A.3d 783, 788 (Pa. Cmwlth. 2024) (citing Dowhower v. Workers’ Comp. Appeal
Bd. (Capco Contracting), 919 A.2d 913, 918 (Pa. 2007)). In this regard, “the use of
‘shall’ in a statute is not always indicative of a mandatory directive; in some
instances, it is to be interpreted as merely directory.” Id. (quoting In re Canvass of
Absentee & Mail-In Ballots of Nov. 3, 2020 Gen. Election, 241 A.3d 1058, 1071 (Pa.
2020)). “The true test [to determine] whether a statute is mandatory or not depends
on whether the thing directed to be done is of the essence of the thing required.” Id.
(brackets in original). In greater depth, this Court has explained:
Whether a statute is mandatory or directory must be
determined by considering legislative intent gleaned from
review of the entire statute and from considering the nature
and object of the statute and the consequences of the
construction of it one way or the other. If the thing
directed to be done is the essence of the thing required, the
statute is mandatory. If, however, the statute merely

7
directs that certain proceedings be done in a certain
manner or at a certain time, it is directory.

Id. (citations omitted).
Section 410 states in relevant part: “In case any claimant shall die
before the final adjudication of his claim, the amount of compensation due such
claimant to the date of death shall be paid to the dependents entitled to compensation,
or, if there be no dependents, then to the estate of the decedent.” 77 P.S. § 751
(emphasis added). This is not a purely procedural provision, like one that requires a
certain time period or format for a particular filing. It is, as the above quote states,
a provision where “the thing to be done is the essence of the thing required”: if a
claimant dies while his or her claim is pending, the amount of compensation due to
the claimant shall be paid to surviving dependents or the estate. A claim in this
context is a request via petition for compensation of some sort, and if that
compensation is deemed appropriate, the claimant’s surviving dependent or estate
need not also file an additional petition requesting that it be paid to them. The final
adjudication of the claim, if resolved in the claimant’s favor, must be paid by the
employer to the appropriate recipient. This was clearly the legislature’s goal in
enacting this provision. Section 435 of the Act, added by the Act of February 8,
1972, P.L. 25, 77 P.S. § 991, even provides for penalties if an employer does not pay
benefits or compensation due to the claimant or their surviving dependents or estate.
Because the requirement that an employer pay surviving dependents or
an estate the compensation due to a claimant who dies while a claim is pending is
automatic, the operation of Section 410 is mandatory. If its requirements are met,
its application in a given matter is not waivable. As such, Claimant’s failure to raise
Section 410 before the Board in this matter does not mean that this Court may not
consider its application as a matter of law. Moreover, there is no factual dispute here

8
and both sides had the opportunity to brief and argue the applicability of Section 410
to this case. Accordingly, there was no waiver.

B. Merits
Under Section 306(a)(1) of the Act, a claimant may receive TTD after
a work-related injury when the claimant is totally disabled and has no earning power.
77 P.S. § 511(1); Steets v. Celebration Fireworks, Inc. (Workers’ Comp. Appeal
Bd.), 295 A.3d 312, 316 (Pa. Cmwlth. 2023), appeal granted, 311 A.3d 1005 (Pa.
2024). Section 306(c)(1)-(25) of the Act enables specific loss benefits to claimants
who suffer the permanent loss of use of a body part. 77 P.S. § 513(1)-(25). Specific
loss benefits are payable without regard to whether the permanent injury has actually
caused a wage loss and are based on a schedule enumerated in Section 306(c),
ranging from 16 weeks for the loss of a non-great toe to 410 weeks for the loss of
either an arm or a leg. Steets, 295 A.3d at 316.
If a claimant sustains both disabling injuries and specific loss injuries,
pursuant to Section 306(d) of the Act, 77 P.S. § 513, he or she may be eligible for
benefits for both if the disabling injuries are separate and apart from the specific loss
injuries. Steets, 295 A.3d at 317. The claimant cannot receive both at the same time,
but may do so in succession, with the TTD usually first and the specific loss benefits
following upon the “end” of TTD, which may be awarded through the claimant’s
death. Id. Claimants may also petition to convert TTD to specific loss benefits, in
which case the claimant must show that the conversion to specific loss benefits,
which unlike TTD have a set ending point once the allotted weeks elapse, is “more
financially advantageous” for the claimant than ongoing TTD. Arnold, 110 A.3d at
1069-70.

9
When a claimant dies while receiving TTD, the Act provides two
modes by which benefits may be available to surviving dependents, such as a widow
or children; the determining factor is the cause of the claimant’s death. If the
claimant dies from his or her work injuries, surviving dependents may file a petition
for fatal claim benefits, which are distinct from TTD and available to the surviving
dependents as an independent right pursuant to Section 307(1)-(6) of the Act, 77 P.S.
§ 561(1)-(6). Steets, 295 A.3d at 317. Relevant to this appeal, Section 301(c)(1) of
the Act states that for fatal claim benefits to be available to a surviving dependent,
the claimant’s death from the work injury must occur within 300 weeks, or about 5
and 3/4 years, from the date of the injury. 77 P.S. § 411(1). This limitation “was
intended to prevent speculation as to whether a work-related injury was the cause of
death years after the injury had occurred.” Antonucci v. Workmen’s Comp. Appeal
Bd. (U.S. Steel Corp.), 576 A.2d 401, 406 (Pa. Cmwlth. 1990) (discussing another
case where a widow sought death benefits on the basis that her husband’s fatal heart
attack was causally connected to a work-related heart attack that occurred 23 years
earlier). In the fatal claim context, the employer is responsible for reasonable funeral
expenses up to $7,000, whether or not there are surviving dependents. 77 P.S. §
561(7).
If, however, a claimant receiving TTD dies of non-work-related causes,
fatal claim benefits are not available, but any specific loss benefits the claimant
would have been entitled to will be paid to surviving dependents pursuant to Section
306(g) of the Act. 77 P.S. § 541. In this context, if there are no surviving
dependents, the only benefit an estate may receive is funeral expenses. 77 P.S. §
541(7).

10
The availability of benefits to surviving dependents based on whether
the claimant dies from his or her work-related injury (fatal claim benefits) or not
(specific loss benefits) is generally binary and mutually exclusive. However, the
Act also contains Section 410, which states in relevant part: “In case any claimant
shall die before the final adjudication of his claim, the amount of compensation due
such claimant to the date of death shall be paid to the dependents entitled to
compensation, or, if there be no dependents, then to the estate of the decedent.” 77
P.S. § 751. Notably, Section 410 does not condition a surviving dependent or
estate’s eligibility for benefits based on the cause of death in circumstances where a
claimant dies before his or her claim is adjudicated.
In Endres v. Workmen’s Compensation Appeal Board (City of
Philadelphia), 677 A.2d 901 (Pa. Cmwlth. 1996), the worker was severely injured
in June 1984. His right lower leg was amputated in July 1984, and he died later that
month from his work injuries. Id. at 902. After his death, his widow filed petitions
for both fatal claim benefits and the specific loss benefits the worker would have
been entitled to for the loss of his right lower leg. Id. The WCJ awarded fatal claim
benefits but denied specific loss benefits on the basis that the worker’s death was
due to his work injuries; the Board affirmed. Id.
This Court affirmed in Endres, first explaining that Section 306(d) is
not a basis for a surviving dependent to claim both fatal claim benefits under Section
307 and posthumous specific loss benefits under Section 306(g) because 306(d) does
not deal specifically with a claimant’s death, but simply provides that “the payment
of specific loss benefits is to commence at the end of the temporary total disability,”
which may or may not be due to death. 677 A.2d at 903. This Court also addressed
Section 410 as follows:

11
Section 410 of the Act is a general provision which states
that benefits due to a claimant who dies before final
adjudication of his or her claim are payable to the
claimant’s estate or dependents. This statutory provision
does not provide an independent or supporting basis for a
specific loss award as [the worker’s widow] maintains.

Section 306(g) relates directly to the receipt of specific
loss benefits and is, therefore, a more particular
provision.[5] Enacted by the 1972 amendments to the Act,
Section 306(g) specifically addresses the receipt of
specific loss benefits by an injured employee’s dependents
if the injured employee dies from causes unrelated to the
work injury. Further, this Court held in Burns
International Security Services, Inc. v. Workmen’s
Compensation Appeal Board (Crist), 79 Pa. Cmwlth. 340,
469 A.2d 336 (1984), that specific loss benefits are
payable to survivors pursuant to Section 306(g) of the Act
where the decedent’s death is from a cause other than the
work injury. Accordingly, Section 306(g) of the Act
supports the WCJ’s determination that [the worker’s]
death from causes related to the work injury does not
entitle [the worker’s widow] to simultaneously collect
fatal claim benefits and specific loss payments.
Id. at 903 (emphasis added).
In Estate of Harris v. Workers’ Compensation Appeal Board (Sunoco,
Inc.), 845 A.2d 239 (Pa. Cmwlth. 2004), the worker sustained serious work-related
injuries in September 1999, which led to amputation of her right leg in mid-
November 1999. Id. at 240-41. She died in late November 1999 from her work
injuries with no surviving dependents, after which the employer paid her estate TTD
through the date of her death and funeral expenses. Id. at 241. Her estate filed a

5
In a footnote, this Court cited the statutory construction principle that when there is a
conflict between general and specific provisions of a statute, the specific provisions “shall prevail
and shall be construed as an exception to the general provision, unless the general provision shall
be enacted later and it shall be the manifest intention of the General Assembly that such general
provision shall prevail.” 677 A.2d at 903 n.2.

12
petition in January 2002 seeking the specific loss benefits that the worker would
have received for the loss of her leg; the WCJ denied the petition and the Board
affirmed. Id.
The estate argued that although the worker died from her work injuries
and had no surviving dependents, it could receive the specific loss benefits she would
have been eligible for based on Section 410. 845 A.2d at 243. This Court disagreed,
quoting the statement in Endres that Section 410 “does not provide an independent
or supporting basis for a specific loss award[.]” Id. (emphasis in original). Section
410 did not apply in Estate of Harris because there was no claim pending at the time
of the worker’s death and no independent legal entitlement to the outcome the estate
sought: the worker’s death was due to her work injuries, but fatal claim benefits were
not available because there were no surviving dependents. Id. at 244-45. Even if
the worker had died of non-work-related causes, there were still no surviving
dependents with statutory eligibility to receive the worker’s specific loss benefits.
Id. The most the estate could receive under either scenario was the statutory funeral
expense amount, which the employer had already paid. Id. Affirming, Estate of
Harris concluded:
The [e]state would have this Court create a new category
of claim, i.e., payment of specific loss benefits to an estate,
not a dependent, where death is caused by the work-related
injury and not by another cause. This claim has no
grounding in the language of the Act and is at odds with
case law precedent. The General Assembly has spoken,
and we are so bound.

Id. at 245.
In Steets, the worker sustained serious work injuries in June 2017. 295
A.3d at 315. The employer accepted liability and began paying TTD but contested
whether the worker sustained specific loss injuries separate and apart from her

13
disabling injuries. Id. In October 2019, the WCJ concluded that the worker
sustained disabling injuries separate and apart from the permanent losses of both
arms and would be eligible for specific loss benefits at the conclusion of her TTD
benefits. Id. The Board affirmed in October 2020 and the employer timely appealed
to this Court in early November 2020. Id. In May 2021, this Court affirmed and the
worker’s eligibility for specific loss benefits at the conclusion of her TTD benefits
became final when the matter was not further appealed to our Supreme Court. Id. at
316.
In the interim, in late November 2020, the worker died from her work
injuries. 295 A.3d at 315. This occurred shortly after the employer’s appeal of the
merits of the worker’s specific loss claims had been filed in this Court, meaning that
the WCJ’s adjudication was not yet final. Id. The worker had no surviving
dependents, so in March 2021, her estate filed petitions for funeral expenses and
payment of the specific loss benefits the worker had been awarded but not yet
received. Id. at 316. The WCJ awarded funeral expenses but denied specific loss
benefits to the estate; the Board affirmed, and the estate appealed to this Court. Id.
In Steets, we first quoted Section 306(g)(7), which states: “If there be
no dependents eligible to receive payments under this section then the payments
shall be made to the estate of the deceased but in an amount not exceeding reasonable
funeral expenses as provided in this act[.]” 295 A.3d at 320-21 (quoting 77 P.S. §
541(7)). Because the worker died from her work-related injuries and left no
surviving dependents, we held that the employer’s only financial obligation to the
estate under the Act was funeral expenses, which it paid. Id. at 320.
The estate argued in Steets that as a matter of equity and policy, this
Court should “clarify” our holding in Estate of Harris to allow estates to receive

14
specific loss benefits that would have been awarded to claimants who die due to their
work injuries. 295 A.3d at 321. This Court disagreed, concluding that Estate of
Harris was correctly decided and on-point. Id. at 321-23. We pointed out that in
both cases, the workers died from their work injuries and left no surviving
dependents; accordingly, the employers’ only statutory obligation to the estates was
to pay funeral expenses. Id. at 321-23. We explained that allowing fatal claim
benefits and heritable specific loss benefits but limiting them to surviving
dependents comported with the Act’s plain language and did not offend its
humanitarian purposes. Id. at 322 (quoting Yen T. Lucas, Est. of Harris v. Workers’
Comp. Appeal Bd. (Sunoco, Inc. & Esis/Signa): Survival of Specific Loss Claims,
15 Widener L.J. 519, 528-30 (2006)). We agreed with the Lucas article that this was
likely a policy decision on the part of the legislature to ensure protection of “those
most vulnerable to the harm occasioned by work-related injuries,” such as dependent
widows, widowers, and minor children and that only the legislature could change
the Act to treat surviving dependents and estates equally in this context. Id.
Accordingly, in Steets, because the worker left no surviving dependents, the plain
language and operation of the Act limited the estate’s recovery to funeral expenses;
therefore, we affirmed the administrative tribunals. Id. at 323.
In dissent in Steets, Judge Ceisler, joined by President Judge Cohn
Jubelirer, asserted that Section 410 authorized payment of the worker’s specific loss
benefits to the estate. 295 A.3d at 323-25 (Ceisler, J., dissenting). The dissent noted
that Section 410 does not condition its application on the cause of a claimant’s death
and that this Court interpreted it liberally in White v. Workers’ Compensation Appeal
Board (Good Shepherd Rehabilitation Hospital), 666 A.2d 1128, 1130 (Pa. Cmwlth.
1995), to allow heritability of the TTD benefits that the worker would have received

15
from her petition to reinstate her benefits, which was pending when she died from
non-work-related causes and granted shortly thereafter. Id. at 323-34 (quoting this
Court’s agreement with the claimant in White that “Section 410’s scheme of
distribution applies to all claims regardless of the nature of the loss[,]” 666 A.2d at
1130). The dissent in Steets distinguished Estate of Harris on the basis that the
claimant there had not petitioned for or been awarded specific loss benefits prior to
her death while the specific benefits claim in Steets was still in active litigation when
the worker died. Id. at 325.
Relevant to this appeal, the dissent in Steets did not distinguish between
the would-be recipients after a claimant’s death; neither does Section 410, which
states that compensation due to a claimant to the date of death “shall be paid to the
dependents entitled to compensation, or, if there be no dependents, then to the estate
of the decedent.” 77 P.S. § 751. However, in Endres, this Court described Section
410 as a “general provision” and stated that where it conflicted with Sections 306(g)
and 307, the more specific provisions pertaining to specific loss and fatal claim
benefits, the more specific provisions would prevail. 677 A.2d at 903 & n.2; see
also Steets, 295 A.3d at 318 (quoting Endres); Estate of Harris, 845 A.2d at 243
(same). As noted, Section 306(g) (heritable specific loss benefits) and Section 307
(fatal claim benefits) provide detailed schedules of who is eligible to receive what
benefits after a claimant’s death. In both, individual recipients must be surviving
dependents, such as a widow or widower, children, or parents or siblings who can
establish dependence on the claimant prior to death. See 77 P.S. § 561(1)-(6); 77
P.S. § 541(1)-(6). However, both sections also specifically state that if no eligible
surviving dependents exist, then payment will be due to the decedent’s estate, but
only for burial expenses up to $7,000. See 77 P.S. § 561(7); 77 P.S. § 541(7). The

16
majority in Steets explained that to award the worker’s specific loss benefits to the
estate would directly conflict with those provisions of the Act and Estate of Harris.
See 295 A.3d at 319 n.10, 321 & n.12. For that reason, the dissent’s position did not
prevail in Steets.
We reaffirm the holdings of Endres and its progeny that the specific
provisions of Sections 306(g) and 307 will usually prevail over the more general
Section 410. See Steets, 295 A.3d at 319 (quoting Section 1933 of the Statutory
Construction Act of 1972, 1 Pa.C.S. § 1933). However, this case is factually
distinguishable from those cases in notable ways that combine to make Section 410
applicable here. In Endres, the issue was whether the worker’s widow could receive
both fatal claim benefits in her own right and the worker’s specific loss benefits that
were available because he sustained separate and apart disabling injuries. This Court
held that to award the worker’s specific loss benefits to the widow in accordance
with Section 410 would conflict with the plain language of Section 306(g), which
expressly limited the heritability of specific loss benefits to instances where the
claimant dies from non-work-related causes. 677 A.2 at 902-03. Section 306(g), as
a specific provision, prevailed over Section 410, so the widow could not collect the
worker’s specific loss benefits, which are limited to deaths from non-work-related
causes. Id. Also, because the widow in Endres had already been awarded fatal claim
benefits in her own right, the resolution in that case prevented double recovery, a
tenet of the Act that stands alongside its humanitarian goals. Id.
Here, double recovery is not at issue. Because Claimant’s death from
his work injuries occurred more than 300 weeks after his initial injuries occurred,
his widow is presumably not eligible for fatal claim benefits. See 77 P.S. § 411(1).
Also, unlike in Endres, where there was no pending litigation when the worker died,

17
Claimant petitioned to convert his TTD to specific loss benefits during his lifetime
and died while that petition was still in litigation before the WCJ on the Board’s
remand. This case fits Section 410, which applies when a claimant dies “before the
final adjudication of his claim.” 77 P.S. § 751.
This case is also distinguishable from Estate of Harris. There, unlike
here, the worker had not petitioned for specific loss benefits prior to her death from
her work injuries, so no litigation was pending to trigger Section 410. Moreover,
the worker in Estate of Harris left no surviving dependents, and even if her specific
loss benefits were deemed heritable, her estate could only receive funeral expenses
pursuant to the clear language of Section 306(g)(7). Here, Claimant’s widow is an
eligible surviving dependent eligible to receive payment of heritable benefits.
In Steets, the worker’s eligibility for specific loss benefits was in active
litigation at the time of her death from her work injuries, so Section 410 was
applicable. However, as in Estate of Harris, there were no surviving dependents in
Steets, so even if the worker’s specific loss benefits were deemed heritable, payment
of those benefits to the worker’s estate would conflict with Section 306(g)(7), which
limits an estate’s recovery to funeral expenses. Here, again, Claimant’s widow is a
surviving dependent eligible to receive heritable benefits.
Although Claimant’s widow would otherwise be eligible for fatal claim
benefits based on Claimant’s death from his work injuries, she is, as noted,
presumably barred from receiving them because Claimant’s death occurred more
than 300 weeks after the incident that caused his injuries. Accordingly, the
straightforward operation of Sections 306(g), 307, and 301(c)(1) would leave
Claimant’s widow, a surviving dependent, with no remedy at all. Our Supreme
Court has stated that it is “inconceivable that the legislature, in enacting a statute

18
specifically designed to benefit employees, intended to leave a certain class of
employees who have suffered the most serious of work-related injuries without any
redress under the Act or at common law.” Tooey, 81 A.3d at 864. We also recall
our holding in White that “Section 410’s scheme of distribution applies to all claims
regardless of the nature of the loss.” 666 A.2d at 1130.
Section 410 states in relevant part: “In case any claimant shall die
before the final adjudication of his claim, the amount of compensation due such
claimant to the date of death shall be paid to the dependents entitled to compensation,
or, if there be no dependents, then to the estate of the decedent.” 77 P.S. § 751. As
noted, Section 410 does not qualify a surviving dependent’s receipt of benefits on
the cause of the claimant’s death. Instead, the provision occupies a narrow area in
the operation of the Act where the crucial point is not the claimant’s death, but the
filing of the claim or petition while the claimant is still alive. If Section 410’s
requirement of litigation instituted prior to the claimant’s death is met, its application
will not conflict with either Section 306(g) or Section 307, both of which are
triggered at the time of death and applied depending on the cause of death.
Accordingly, to analyze a Section 410 claim, our workers’ compensation tribunals
and courts must put aside the claimant’s ultimate death and the cause thereof and
focus on the preceding time period between the filing of the petition and the
claimant’s death.
Given the foregoing, the test for a Section 410 claim tracks the
provision’s language as follows. First, the claimant must have a pending petition or
claim that is not yet finally adjudicated at the time of the claimant’s death. Next, the
claim as posed at the time of filing must be meritorious and prevail. If both elements
are met, the amount of compensation the claimant would have been due “to the date

19
of death” (and regardless of the cause of death) “shall be paid to the dependents
entitled to compensation, or, if there be no dependents, then to the estate of the
decedent.”
As discussed above, Claimant did not present a Section 410 claim to
the Board. However, as we have concluded, Section 410 is mandatory and not
waivable. Because Claimant’s widow raised Section 410 to this Court, both sides
have had the opportunity to brief and argue its application, and there is no factual
dispute. Accordingly, we will analyze Section 410 with regard to this matter,
focusing primarily on the period between Claimant’s petition to convert his benefits
and his death.
Claimant first filed a petition with the WCJ in June 2020 to convert his
benefits from TTD to specific loss benefits. C.R. at 70. Given our pronouncement
in White that Section 410 “applies to all claims regardless of the nature of the loss,”
Claimant’s petition to convert his TTD to specific loss benefits clearly constituted a
“claim.” The WCJ concluded that the Board had original jurisdiction over this
matter based on Section 306(c)(23) of the Act, so Claimant filed his petition with
the Board in November 2020. Id. In August 2021, the Board remanded the matter
to the WCJ for factfinding. Id. at 71. Days later, the WCJ held the first hearing on
Claimant’s petition and proceeded to take evidence through a final hearing in April
2022. See C.R. at 113-59. During that time period, in November 2021, Claimant
died from his work injuries. At the time of Claimant’s death, the litigation on his
claim seeking to convert his benefits was ongoing and had not yet been finally
adjudicated. Accordingly, the first element of the test is met, and Section 410 applies
here.

20
When the WCJ issued his findings of fact in July 2022, he concluded
that Claimant had established specific loss of all four limbs and disabling mental and
emotional injuries separate and apart from his specific losses, meaning that
Employer could not credit the TTD benefits it had already paid Claimant against the
specific loss benefits he would be eligible to receive at the end of his TTD benefits.
C.R. at 73. The WCJ also credited Claimant’s widow’s testimony that the
conversion would be in the best financial interests of Claimant’s family. Id. The
Board adopted the WCJ’s findings of fact and opined that if Claimant had not died
while the matter was pending before the WCJ, it “likely would have found it more
financially advantageous for Claimant and, by extension, his family, to convert”
from TTD to specific loss benefits. Id. at 77 (emphasis added). In light of the
Board’s focus on Claimant’s ultimate death from his work injuries, which led the
Board to deem Claimant’s petition moot, this was not a final adjudication on the
merits. However, given the applicability of Section 410, the Board’s order will be
vacated, and this matter will be remanded to the Board, which acts in its original
jurisdiction in this context. The Board shall issue a final determination and opinion
on the merits of Claimant’s petition to convert his TTD to specific loss benefits,
which both sides will have an opportunity to appeal to this Court so a final
adjudication may be reached.
When the matter is finally adjudicated, and if it is concluded that
Claimant’s petition to convert his benefits would have succeeded, that conclusion
would relate back to November 20, 2020, the date he filed his petition with the Board
while he was still alive and after his first petition was dismissed by the WCJ for lack
of jurisdiction. At that point, Claimant would have established eligibility prior to
his death for specific loss benefits based on the permanent loss of all four of his

21
limbs, which would be 410 weeks per limb (1640 total) and perhaps also for
additional “healing period” benefits of 25 weeks, both pursuant to Section 306(c) of
the Act. See 77 P.S. § 513.6 In those circumstances, the second element of the
Section 410 test would be met. Employer would then be obligated to pay Claimant’s
widow the full amount, representing “the amount of compensation due” to Claimant
“to the date of death.” As discussed above, the ultimate cause of Claimant’s death
is not at issue in this Section 410 inquiry.
We emphasize that Section 410 will apply only in very narrow
circumstances where a claimant has a claim for compensation pending at the time of
death that ultimately prevails. If Section 410’s elements are met, “the amount of
compensation due” relates back to the time of the filing of the claim or petition and
does not take the ultimate cause of death into consideration. Usually, Sections
306(g) and 307 are applied when a claimant dies in the absence of pending claim
litigation, which commonly occurs. When Section 410 applies because claim
litigation is pending when the claimant dies, Sections 306(g) and Section 307 still
apply and work with Section 410 to ensure the heritability of some form of benefits
that the claimant sought but had not yet received prior to death. To that end, there
must be an eligible surviving dependent to receive the benefits because to award
them to an estate would conflict with Sections 306(g)(7) and 307(7), as illustrated in
Steets. 295 A.3d at 320 (stating that because the claimant “had no dependents with
rights to either her total disability or specific loss benefits when she died . . . [the

6
When a claimant sustains multiple specific losses from a single incident, the healing
periods run simultaneously, and the claimant may only be compensated for the longest single
healing period rather than the aggregate. Tloczynski v. Workers’ Comp. Appeal Bd. (John F. Miles
Co.), 765 A.2d 1183, 1180 (Pa. Cmwlth. 2001). The loss of a leg results in a 25-week healing
period, which is the longest applicable period, so if Claimant is ultimately found eligible for a
healing period in this matter, it would likely be for an additional 25 weeks of benefits in addition
to the 1640 weeks of specific losses.

22
e]mployer’s only statutory obligation was to pay $7,000 in funeral expenses”).
Finally, this application of Section 410 comports with the Act’s policy goals of
ensuring that surviving dependents, like Claimant’s widow, are not left without a
fair remedy when the worker they depend on dies, whether from work injuries or
otherwise. See Tooey, 81 A.3d at 864; Steets, 295 A.3d at 322 (quoting the Lucas
article).

IV. Conclusion
In light of the foregoing determination that Section 410 applies in this
matter, the Board’s order denying Claimant’s petition to convert his benefits from
TTD to specific loss as moot because he died from his work injuries is vacated. This
matter is remanded to the Board for a final determination and opinion on the merits
of Claimant’s petition, which either side may appeal to this Court.

___________________________________
CHRISTINE FIZZANO CANNON, Judge

President Judge Cohn Jubelirer and Judge Covey concur in the result only.

23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elmer Riehl, :
Petitioner :
:
v. :
:
Beiler Brothers, LLC (Workers’ :
Compensation Appeal Board), : No. 1563 C.D. 2023
Respondent :

ORDER

AND NOW, this 18th day of November, 2024, the December 1, 2023,
order of the Workers’ Compensation Appeal Board (Board) is VACATED. This
matter is remanded to the Board for a final determination and opinion on the merits
of Elmer Riehl’s November 20, 2020, petition to convert his temporary total
disability benefits to specific loss benefits, which may thereafter be timely appealed
to this Court.

Jurisdiction relinquished.

___________________________________
CHRISTINE FIZZANO CANNON, Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10742515. Public record. Not legal advice.