The opinion
Dissenting Opinion by
Senior Judge Barbieri:
I must disagree with the view of the majority and that of the referee and the Board as to the interest payable on the Claimant’s weekly benefits for specific loss of four fingers of his right hand.
First of all, there is no statutorily authorized basis for discontinuing payments which were instituted here by notice of compensation payable. There is no basis for a referee sua sponte to grant a suspension which it is the burden of the employer to establish. 1 This being so, there can be no suspension of interest that would otherwise be due. The question remains then as to when interest began to run. In my view, interest begins to run when payments become due and payable. In workmen’s compensation cases from early times interest runs on payments from the respective due dates of each of such payments. Petrulo v. O’Herron Co., 122 Pa. Superior Ct. 163, 168 , 186 A. 397 (1936). See Graham v. Hillman Coal & Coke Co., 122 Pa. Superior Ct. 579 , 186 A. 400 (1936).
*169 The question remains: what are the due dates on the payments for the specific losses awarded here? The referee has found, and quite appropriately, that there was a period of temporary total disability separate and apart from the specific losses sustained by the claimant, and the statute is clear that the specific loss payments begin at the end of the period of total disability. Section 306(d), 77 P.S. §513, provides:
(d) Where, at the time of the injury the employe receives other injuries, separate from these which result in permanent injuries enumerated in clause (c) of this section, the number of weeks for which compensation is specified for the permanent injuries shall begin at the end of the period of temporary total disability which results from the other separate injuries, . . .
Accordingly, I would conclude that interest runs on the payments from due dates beginning at the end of the period of payments for total disability 2 and I must disagree with the majority’s interpretation of the notice provisions in Sections 311 and 406.1.
I believe that the Legislature in 1972 clearly ruled out the result reached by the majority by repealing the former provision in Section 410 that interest run only from the date of the filing of the claim. 3 The former provision reads as follows:
Whenever any claim for compensation is presented to the board and is finally adjudicated in *170 favor of the claimant, the amounts of compensation actually due at the time the first payment is made after such adjudication shall bear interest at the rate of six per centum per annum from the day such claim is presented, and such interest shall be payable to the same persons as the compensation is payable.
The interest provision was transferred in 1972 from Section 410 to new Section 406.1, and considering the new provision with the notice provision in Section 311, I would conclude that the notice required in Section 311 is purely notice of injury 4 and that in order to meet all situations including cases where the disability from that initial injury did not begin at once, Section 406.1 provides that the interest would not run until disability from the injury occurred. Obviously, if there is a hiatus between the injury and the onset of disability, interest can only begin to run when a disability occurs and requires payment therefor.
The decision in Lastoka 5 relied upon by the majority, is one where the beginning of interest following the notice of the original injury was involved and not a subsequent delineation of the extent of continued liability to make payments. In fact, the parties may not even by agreement alter the claimants right to receive interest on compensation due. Klingler v. Workmen's Compensation Appeal Board (Rupert), 50 Pa. Commonwealth Ct. 335 , 413 A.2d 432 (1980).
It follows, therefore, that the obligation to pay interest here cannot be affected by a. medical report or by when a petition was filed.
Also, in Lastoka, we spelled out the nature and reason for interest and why it cannot be denied retroactively, as follows:
*171 This result is consistent with our decision in Klingler v. Workmen's Compensation Appeal Board, 50 Pa. Commonwealth Ct. 335 , 413 A.2d 432 (1980), where we held that interest payments are designed to put a claimant in the same position as if no contest had been made and are, therefore, part of the compensation due. Similarly, in Mathies Coal Co. v. Workmen's Compensation Appeal Board, 40 Pa. Commonwealth Ct. 120, 129 , 399 A.2d 790, 794 (1979), Judge MacPhail wrote:
‘The imposition of interest by the Legislature is not because of fault on the part of the employers, but rather because of delay in payment. Obviously, during the proceedings, the Coal Companies had the use of the funds which were ultimately due the Claimants. By the same token, the Claimants have been deprived of the use of their benefits during the period they were withheld. For this reason they are entitled to additional compensation in the form of interest.’
I conclude, therefore, that absent a referee’s finding that the delay was caused by the claimant, Section 435(d)(iii), there can be no forfeiture of interest. See Scheffer v. Workmen's Compensation Appeal Board (San Juan Credit Furniture and Westmoreland Casualty Co.), 75 Pa. Commonwealth Ct. 644 , 463 A.2d 96 (1983).
For the reasons stated above, I would reverse the order of the Board, direct that payments for the specific losses be made to commence at the end of the period of total disability, and that interest be assessed on each of such payments for the lost four fingers from the respective due dates of each such payment.
Indeed, unilateral withholding of benefits, prohibited in Section 413(b), 77 P.S. §774.1, under penalties in Section 435(d)(i), 77 P.S. §991, “triggers the penalty provision at Section 435(d)(i),” requiring imposition by the Court of the 10% penalty, up to 20%, plus accrued interest which was due during the period of wrongfully suspended benefits. M. A. Bruder & Son v. Workmen's Compensation Appeal Board (Harvey), 86 Pa. Commonwealth Ct. 353 , 485 A.2d 93 (1984).
Since payments under Section 301(c) are for physical losses and not for loss of earnings or earning power, Claimants receipt of wages for work performed is of no consequence. Workmen's Compensation Appeal Board v. Hartlieb, 465 Pa. 249 , 348 A.2d 746 (1976); Shoop v. Chambersburg Baking Co., 189 Pa. Superior Ct. 20 , 149 A.2d 179 (1959).
The majority view is even more stringent, beginning interest 21 days after the filing.
Section 311, P.S. §631 provides for notice of the “injury.”
Lastoka v. Workmen's Compensation Appeal Board, 51 Pa. Commonwealth Ct. 310 , 413 A.2d 481 (1980).