26 Pa. Commw. 464 | Pa. Commw. Ct. | 1976
Opinion by
The Olivetti Corporation of America (Olivetti) has appealed a decision and order of the Workmen’s Compensation Appeal Board (Board) which affirmed the referee’s decision granting benefits to Helen Jante (Claimant). Finding no error in the proceedings below, we must affirm.
Claimant was employed by Olivetti as a typewriter inspector. On June 27,1970, while in the course of her employment, Claimant suffered an accidental injury when she picked up a defective typewriter from the assembly line and placed it on the floor. Having received prompt notification of the injury, Olivetti’s plant'nurse assisted Claimant in filling out the forms for benefits and assured her that her claim would be duly processed.
The referee found as a fact that Claimant’s accidental injury was due to “the unusual strenuous exertion of her duties on that particular day. ’ ’ The referee found that Claimant suffers a 50% functional disability as a result of her accidental injury and is therefore totally disabled. As to the timing of Claimant’s claim petition, the referee found that Claimant had been lulled into a false sense of security when Olivetti’s nurse provided forms for Claimant and helped her to complete them. This being so, the referee held that the statute of limitations did not bar the claim petition and awarded benefits for total disability.
Since the alleged accident occurred prior to the 1972 Amendments to The Pennsylvania Workmen’s Compensation Act
The record tells us that on the day of Claimant’s accident there was an unusually high number of defective typewriters which Claimant had to remove from the assembly line. Normally, this requires Claimant to place the typewriters in metal shelves located nearby her work station. There are repairmen on the other side of these shelves who then repair the defects. However, due to the unusually high number of defects that day, there was no room on the metal shelves for additional defective typewriters. Hence, Claimant was required to stoop and place the defective typewriters on the floor. Considering these unusual facts, we find ample support for the referee’s conclusion that Claimant sustained a compensable “accident” under the “unusual strain” doctrine.
Next, Olivetti contends that its non-occupational sickness and accident insurance carrier (Aetna Life and Casualty Co.) be given the right of subrogation for payments which it made to Claimant or, in the alternative, that Olivetti and its compensation carrier
“Where an employe has received payments for the disability or medical expense resulting from an injury in the course of his employment paid by the employer or an insurance company on the basis that the injury and disability were not compensable under this act in the event of an agreement or award for that injury the employer or insurance company who made the payments shall be subrogated out of the agreement or award to the amount so paid, if the right to subrogation is agreed to by the parties or is established at the time of hearing before the referee or the board.”
This Court has applied the foregoing section to grant an employer’s subrogation claim on behalf of its sickness and accident insurance carrier where the record contained evidence to support the subrogation interest. See United States Steel Corp. v. Workmen’s Compensation Appeal Board, 10 Pa. Commonwealth Ct. 67, 308 A.2d 200 (1973). In this case, there is no evidence of record that a subrogation agreement existed between the parties. Further, in United States Steel, the employer had asserted its claim both in its answer to the compensation petition and on appeal. In this case, although there was testimony that the payments were made by Aetna and not by Olivetti’s compensation carrier, the subrogation claim has been raised for the first time in the appeal to this Court and Aetna has not joined in these proceedings to assert its right of subrogation. See General Tire and Rubber Co. v. Workmen’s Compensation Appeal Board, 16 Pa. Commonwealth Ct. 473, 332 A.2d 867 (1975). We hold that Section 319 of the Act
Finally, Appellant claims that it should be given credit against the compensation award for payments made to Claimant by Aetna. In support of its contention, Appellant cites General v. E. Roseman Co., 21 Pa. Commonwealth Ct. 72, 343 A.2d 683 (1975). In General, the employer had paid the claimant $7,-000.00 after a settlement negotiated when the employer filed a termination petition. The claimant had been receiving benefits for total disability for 5 1/2 years prior to this settlement. On claimant’s petition for reinstatement, the employer interposed the lump sum payment as a defense. We held that the employer was entitled to the offset and rejected claimant’s contention that since the agreement was invalid under the Act, the lump sum payment made pursuant thereto could not be, credited to the employer. In so holding, we stressed that claimant did not have the right to a double recovery. In Temple v. Pennsylvania Department of Highways, 445 Pa. 539, 285 A.2d 137 (1971), a claimant was paid for his accrued sick leave wages after he sustained a disabling accident. After an ultimate determination that the accident was compensable, the, insurance carrier claimed credit for the period after the accident for which the claimant had received his sick pay. The Supreme Court, noting that the payments made to claimant were actually wages to which the employe was entitled under the employment contract, denied the credit. This fact was held to distinguish Temple from a prior Superior Court case, Creighton v. Continental Roll and Steel Foundry Co., 155 Pa. Superior Ct. 165, 38 A.2d 337 (1944). In Creighton, the payments made to the injured claimant by the employer were not in the
This case is more analogous to Creighton than to Temple since the benefits received by Claimant would not have been available absent the injury. Therefore, Claimant was not required to deplete benefits for her compensable injury which could have been used for other purposes.
Accordingly, Appellant-employer is entitled to a credit against its liability for workmen’s compensation for the benefits paid to Claimant by its non-occupational sickness and accident insurance carrier.
We therefore
Order
And Now, this 1st day of October, 1976, judgment is entered in favor of Helen Jante and against Olivetti Corporation of America and Travelers Insurance Company, for total disability at the rate of $60.00 per week from July 1,1970, to March 26,1971, a period of 38 2/7 weeks, in the, amount of $2,297.14, and from March 27, 1971, to May 14, 1973, a period of 111 2/7 weeks,
Interest is payable at the rate of six (6) per centum per annum on compensation benefits not yet paid.
It Is Further Ordered that the case is remanded to the Workmen’s Compensation Appeal Board for a determination of the total amount of benefits paid to Helen Jante by Aetna Life and Casualty Company, which amount shall be credited against the amounts owed by Olivetti Corporation of America and Travelers Insurance Company under the aforesaid judgment.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1 et seq.