# Banic v. Workmen's Compensation Appeal Board

> Commonwealth Court of Pennsylvania · August 30, 1995 · 664 A.2d 1081

URL: https://www.frixlaw.com/law-library/cases/4951691

## Case

- **Full name:** David J. BANIC v. WORKMEN'S COMPENSATION APPEAL BOARD (TRANS-BRIDGE LINES, INC.)
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** August 30, 1995
- **Citations:** 664 A.2d 1081; 1995 Pa. Commw. LEXIS 408
- **Precedential status:** Published
- **Opinion:** Dissent by Doyle
- **Judges:** Doyle, Silvestri, Smith
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

DOYLE, Judge,
dissenting.
As the majority opinion points out in the last sentence of footnote 1 (slip. op. at p. 2), Section 26 of Act 44 1 provides that:
No changes in indemnity compensation payable by this act shall affect payments of indemnity compensation for injuries sustained prior to the effective date of this section. (Emphasis added.)
I believe that this language is clear and unambiguous and requires this Court to hold that Banic’s compensation for the injury he sustained on April 6,1992, before Act 44 was enacted into law on July 2, 1993, remains unaffected by the addition of Section 306(a)(2) to the Worker’s Compensation Act. 2
While our case law authority is not a “model of clarity” on the issue of whether incar *1087 ceration alone is sufficient cause to suspend compensation benefits, 3 1 do not believe that Employer is totally correct in stating that only dicta supports the contention that incarceration alone mil not provide grounds for a suspension. It is, of course, beyond peradventure that there is no case law authority establishing that incarceration alone does provide grounds to enter a suspension. In Wheeling-Pittsburgh Steel Corp. v. Workmen’s Compensation Appeal Board, 38 Pa.Commonwealth Ct. 370, 395 A.2d 586 (1978), the case most directly on point, it was the established fact that the employer proffered suitable employment to the claimant one year after he became incarcerated for not making bail on charges of rape, a crime for which he was subsequently convicted, which triggered the suspension. Had incarceration alone been sufficient there would have been no need for the employer to offer suitable employment to the claimant to begin with, and the holding in Wheeling-Pittsburgh Steel was that it was the proffered employment which supported the decision to suspend benefits.
While this issue may have gone definitively unresolved until the passage of Act 44, and has now been resolved by the clear expression of the General Assembly in the adoption of Section 306(a)(2) of the Act, just as clear is the General Assembly’s intent by Section 26 of Act 44 that the amending provisions of Act 44, including Section 306(a)(2), were not intended to have a retroactive effect.
And, even if Section 26 were not so explicitly clear, as I believe it is, Section 1926 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1926, states that:
No statute shall [be] construed to be retroactive unless clearly and manifestly so intended by the General Assembly.
I, therefore, respectfully dissent from the conclusion reached by the majority and would reverse the order of the Board.
. Act of July 2, 1993, P.L. 190, No. 44.
. Act of June 2, 1915, P.L. 736, as amended, by Section 8 of Act 44, 77 P.S. § 511(a)(2).
. The brief of the Department of Labor and Industry, Bureau of Workers’ Compensation (Bureau), asserts in footnote 2 on page 8:
All of the parties involved are in basic agreement that prior to Act 44, incarcerated claimants had the right to receive compensation benefits; employers could not unilaterally suspend benefits simply because of the fact of a claimant's incarceration.
This statement is contested, of course, by the brief of Trans-Bridge Lines, Inc., the Employer, but the statement of the Bureau, I believe, is nevertheless indicative of what the practice was prior to the passage of Act 44. The basis for the Bureau's assertion that there was "agreement” among all of the parties was in all likelihood predicated upon the brief of Employer before the Board which stated that Section 306(a)(2) was "passed to cure a defect in the Workers' Compensation system” and that “in passing Act 44, the legislature clearly sought to remedy the evil of convicted incarcerated and convicted felons receiving workmen’s compensation benefits when incarcerated.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4951691. Public record. Not legal advice.