# Sharon Steel Corp. v. Workers' Compensation Appeal Board

> Commonwealth Court of Pennsylvania · January 15, 2002 · 790 A.2d 1084

URL: https://www.frixlaw.com/law-library/cases/9751419

## Case

- **Full name:** SHARON STEEL CORPORATION, Petitioner, v. WORKERS’ COMPENSATION APPEAL BOARD (FRANTZ), Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** January 15, 2002
- **Citations:** 790 A.2d 1084; 2002 Pa. Commw. LEXIS 20
- **Precedential status:** Published
- **Opinion:** Concurrence by Friedman
- **Judges:** Doyle, Friedman, Mirarchi
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9751419

## Opinion text

FRIEDMAN, Judge,
concurring.
The major issue confronting the court in this case is whether, under the Workers’ *1090 Compensation Act (Act), 1 Ervin Frantz (Claimant) can receive specific loss benefits concurrently with partial disability benefits. The majority holds that these benefits can be paid to Claimant concurrently, and I concur in this result. However, I write separately because I cannot accept the majority’s analysis and the confusion that this analysis likely would engender.
As indicated by a notice of compensation payable (NCP), Claimant suffered a traumatic amputation of his right leg and left foot in an unfortunate accident on April 7, 1988 and, as a result, received specific loss benefits pursuant to section 306(c) of the Act, 77 P.S. § 513. In August of 1989, Claimant returned to light-duty work, but he was laid off in October of 1992 for economic reasons. Claimant subsequently filed a petition to review his compensation benefits, alleging that he was entitled to disability benefits because he sustained injuries in the 1988 accident above and beyond the injury for which he received specific loss benefits. Following a hearing on the matter, the WCJ found: that Claimant sustained severe injuries to his left wrist, left hip and back in the 1988 accident which were separate and distinct from Claimant’s amputations; that these other injuries prevented Claimant from returning to his pre-injury job; and that Claimant was still partially disabled by these other injuries when he was laid off from the modified position he held between August 20, 1989 and October 10, 1992. As discussed by the majority, substantial evidence for these findings exists in the competent credible testimony of Claimant’s medical experts, thus establishing Claimant’s entitlement to both specific loss benefits and disability benefits.
The more difficult issue involves Sharon Steel Corporation’s (Employer) challenge to the way these benefits were to be paid to Claimant; 2 specifically, Employer argues that Claimant was not entitled to receive partial disability and specific loss benefits simultaneously. This question implicates section 306(d) of the Act, 77 P.S. § 513, which provides the compensation payment schedule for claimants who, like Claimant here, sustain one of the permanent injuries enumerated in section 306(c) and, at the same time, receive a separate disabling injury. 3
Section 306(d) provides in relevant part: Where, at the time of the injury the employe receives other injuries, separate from these which result in permanent injuries enumerated in [section 306(c)], 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, but in that event the employe shall not receive compensation provided in [section 306(c)] for the specific healing period.
77 P.S. § 513(25).
According to the timetable set forth in section 306(d), a claimant’s entitlement to *1091 payments of specific loss benefits begins only when the period of temporary total disability for other, separate injuries ends. 77 P.S. § 513. Clearly then, under section 306(d), Claimant cannot collect payments for total disability and specific loss at the same time. The question presented by Employer here is whether section 306(d) also precludes concurrent payments of partial disability and specific loss benefits. I believe the analysis is quite straightforward.
As the majority states, “nothing in Section 306(d) of the Act specifically states that a claimant cannot receive specific loss benefits and partial disability benefits simultaneously.” (Op. at 9) (emphasis in original). Further, our supreme court has held that a period of temporary total disability may “end,” thereby triggering entitlement to specific loss benefits, even if the disability does not cease during the employee’s lifetime. See City of Scranton v. Workmen’s Compensation Appeal Board (Rideski), 536 Pa. 161 , 638 A.2d 944 (1994). Accordingly, I agree with the majority’s ultimate holding that, “consistent with Section 1903(a) of the Statutory Construction Act, 1 Pa.C.S. § 1903(a), and with current case law,.... Claimant’s return to work ‘ended’ his period of temporary total disability, and he was eligible for partial disability as well as specific loss benefits.” (Op. at 10.)
I submit, however, that the majority gains nothing when it goes beyond this already complete analysis and delves into a consideration of section 306(c) of the Act (relative to specific loss calculations); indeed, I believe that section 306(c) is irrelevant here.
Unlike total and partial disability, specific loss is not tied to earning power. Nevertheless, specific loss is the exclusive award for all disability, i.e., diminished earning capacity, emanating from or connected to the loss of, or permanent injury to, the body part. Thus, the majority is correct that, as a general rule, “in matters involving specific loss claims, a claimant who sustains an injury that is compensable under Section 306(c) of the Act .... is not entitled to compensation beyond that specified in that section even though he may be totally disabled by the [section 306(c)] injury. Crucible, Inc. v. Workmen’s Compensation Appeal Board (Pope), 120 Pa.Cmwlth. 564 , 549 A.2d 258 (1988).” (Op. at 7) (emphasis added). However, I would point out that, under the explicit terms of the statute, the compensation provided in section 306(c) is the exclusive compensation available only with respect to disability resulting from the specified permanent injuries. The rule is of no concern in cases where, as here, the claimant establishes entitlement to both specific loss and disability benefits as a result of unrelated injuries, and it is only the payment schedule under section 306(d) that is questioned.
In needlessly discussing the exception to section 306(c)’s general rule of exclusivity, the majority creates a further problem by stating, “The exception to this rule, found in Section 306(d), 77 P.S. § 513, is when a claimant may receive benefits for injuries which are separate and distinct from those which normally flow from the specific loss injury.” (Op. at 7) (emphases added). The majority then goes on to quote our supreme court’s decision in Killian v. Heintz Div. Kelsey Hayes, 468 Pa. 200 , 360 A.2d 620 (1976), in turn, quoting Lente v. Lucci 275 Pa. 217 , 119 A. 132 (1922), as setting the standard for determining whether this “section 306(d) exception” applies. (Op. at 7) (emphasis added).
Initially, I must disagree with the majority’s statement that section 306(d) provides the exception to the rule of exclusivity set forth in section 306(c). As stated, section 306(d) relates only to the specifics *1092 of payments, describing how awards are to be made when more than a specific loss has been suffered in a single accident. In fact, the exception referred to by the majority is found, not in section 306(d), but in the Lente decision itself. 4 In that case, the court recognized that there may be occasions where other parts of the body have been injured or destroyed as a result of the permanent injury. The court determined that, under certain circumstances, such additional injury may be compensable under section 306(a), 77 P.S. § 511, relating to total disability, or section 306(b), 77 P.S. § 512, relating to partial disability; the court then went on to set the standard for this determination.
As stated, section 306 includes all disability emanating from or connected with a permanent injury to the member mentioned, but it must not be understood that compensation will be denied if the physical structure of the body, distinct from the member, is affected by such permanent injury. Compensation may be made for an injury to, destruction or affection of, other organs or parts of the body produced by the permanent injury, causing a disability separate, apart and distinct from that mentioned in [section 306(c)]. This may be under [section 306(b)], or, if total disability, under [section 306(a)].But, in these cases, where it is claimed that some other part of the body is affected, it must definitely and positively appear that it is so affected, as a direct result of the permanent injury; the causal connection must be complete, and, further, the disability must be separate and distinct from that which normally follows an injury under [section 306(c)].
Lente, 275 Pa. at 221-22 , 119 A. at 133-34 . (Emphasis added.) In other words, when a claimant sustains an injury compensable as a specific loss, he or she receives no additional compensation for any disability emanating from the permanent injury; the exception being that additional compensation may be granted for an injury to another part of the body which directly results from that permanent injury but which causes a disability separate and distinct from that which normally follows the specific loss. 5 That is not this case. 6
*1093 Here, the disabling wrist, hip and back injuries that Claimant sustained in the April 1988 accident did not develop as a result of his specific loss; rather, Claimant incurred these other injuries in addition to the amputations; they had no connection whatever to Claimant’s lost right leg and left foot. Therefore, the exception, articulated in Lente and repeated in Killian , is not relevant here. Claimant’s petition was based on a claim that he was disabled due to other injuries sustained in the 1988 accident that were completely unrelated to the injury for which he received specific loss benefits. After confirming that the record supports this claim, we need do nothing more than look at section 306(d) to determine how these multiple benefits should be paid.
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1-1041.4, 2501-2626.
. As stated by the majority, the WCJ granted Claimant’s petition and amended the NCP to include Claimant's wrist, hip and back injuries. In addition, the WCJ directed Employer to pay Claimant partial disability benefits from August 20, 1989 through October 10, 1992, and total disability from October 11, 1992 forward. Finally, the WCJ suspended Claimant's specific loss benefits effective October 11, 1992 and directed that specific loss payments would resume at the end of the period of total disability, when Employer would be entitled to a credit for specific loss payments already paid.
.Section 306(d) also deals with the way payments are made when a claimant suffers two or more specific loss injuries in the course of a single accident.
. Neither Lente nor Killian ever mention section 306(d); nevertheless, in the majority opinion, the quote from Killian contains a bracketed reference to section 306(d). I believe that it is section 306(c), not section 306(d), which should appear in those brackets.
. Based on the wording in Lente , I must again take issue with the majority’s statement that "the exception to this rule ... is when a claimant may receive benefits for injuries which are separate and distinct from those which normally flow from the specific loss injury.” (Op. at 7) (emphasis added). To the contrary, under the exception articulated in Lente , compensable injuries must directly result from the specific loss injury; however, they must cause disabilities which are separate and distinct from those which normally follow the section 306(c) injury.
.In Crucible, we provide examples of cases applying the exception, citing Painter v. Workmen’s Compensation Appeal Board (Universal Cyclops), 91 Pa.Cmwlth. 59 , 496 A.2d 907 (1985) (allowing compensation because hand-shoulder syndrome following loss of use of arm was independently disabling); Penn Mar Foundries, Inc. v. Workmen’s Compensation Appeal Board (Albright), 76 Pa.Cmwlth. 565 , 464 A.2d 670 (1983) (allowing compensation in addition to specific loss for psychosomatic pain and pain in leg and hip due to inability to ambulate properly following partial foot amputation); Rowan v. Workmen’s Compensation Appeal Board, 58 Pa.Cmwlth. 56 , 426 A.2d 1304 (1981) (allowing for total disability from neuroma pain following partial amputation of three fingers); Truck Lubricating & Washing Co. v. Workmen’s Compensation Appeal Board, 54 Pa.Cmwlth. 495 , 421 A.2d 1251 (1980) (allowing compensation for disability from rare neuroma pain resulting from *1093 finger amputation). Further, in Lente, 275 Pa. at 221-22 , 119 A. at 133 , our supreme court provides that “a latent tubercular condition in another part of the body becoming active through the permanent injury” serves to illustrate when the exception to the rule of exclusivity in section 306(c) applies.
By discussing the exception to the rule of exclusivity in the present context, the majority opinion confuses two of the scenarios in which a claimant can establish entitlement to compensation under sections 306(a) or 306(b) in addition to specific loss benefits under section 306(c). In one scenario, illustrated by the cases cited above, the claimant suffers an injury that results directly from the specific loss but causes a disability separate and distinct from that which normally follows the permanent injury. This type of case requires application of the exception identified in Lente . In a second scenario, illustrated by the present case, the claimant suffers the specific loss of one body part and, during the same incident, sustains a separate disabling injury to a different body part. See e.g., Frank Irey, Jr., Inc. v. Workmens Compensation Appeal Board (Klemencic), 67 Pa.Cmwlth. 512 , 448 A.2d 647 (1982). Yet a third scenario is described in Acme Markets, Inc. v. Workmen’s Compensation Appeal Board (Hopiak), 127 Pa.Cmwlth. 553 , 562 A.2d 419 (1989), appeal denied, 525 Pa. 648 , 581 A.2d 574 (1990), in which the claimant is involved in two different incidents, one resulting in the specific loss and the other resulting in a disabling injury to a different body part.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9751419. Public record. Not legal advice.