Workers' Compensation Defense

On October 11, 2011, the claimant sustained a work injury in the nature of incomplete tetraplegia (paralysis of all four limbs), with depression and anxiety, and began receiving temporary total disability (TTD) benefits. In June 2020, the claimant filed a petition to convert his TTD benefits to specific loss benefits. The workers’ compensation judge dismissed the petition, without prejudice, to be refiled in the Appeal Board’s original jurisdiction. The claimant did so, and the Board referred the matter back to the workers’ compensation judge for findings of fact. In November 2021, while the case was still pending with the workers’ compensation judge, the claimant passed away from sepsis resulting from bed sores that developed from his work injury. Both medical experts testified that the claimant’s death was due to his work injuries. 

The workers’ compensation judge granted the petition for specific loss benefits and also found the decedent’s mental health conditions were a disability separate and apart from his work-related physical injuries. Therefore, the decedent was entitled to TTD benefits, followed by specific loss benefits. The judge further found the decedent’s death was due to his work injuries. 

The judge also considered arguments from both sides concerning whether Section 306(g) of the Act precluded the decedent’s widow from receiving posthumous specific loss benefits because the death was due to the decedent’s work injuries. The judge found the widow was barred from entitlement to specific loss benefits. 

The widow/claimant appealed to the Board on the issue of her eligibility for some form of survivor benefits in the matter. The Board concluded the decedent’s petition for specific loss benefits 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. The claimant’s widow appealed to the Commonwealth Court. 

The claimant argued, Section 410 of the Act should apply regardless of the decedent’s cause of death because his petition to convert his TTD benefits to specific loss benefits was in litigation at the time of his death and was ultimately found meritorious by the Board. The employer countered by arguing the claimant’s widow waived the Section 410 argument, since it was not raised before the Board, and that Section 410 of the Act did not apply because it was in conflict with Section 306(g). 

The court rejected the employer’s waiver argument and held that operation of Section 410 of the Act was mandatory. Section 410 requires an employer pay surviving dependents, or an Estate, the compensation due to a claimant who dies while a claim is pending. In the court’s view, application of Section 410 was not waivable. The court also noted that Section 410 does not condition a surviving dependent’s or an Estate’s eligibility for benefits based on the cause of death in circumstances where a claimant dies before his or her claim is adjudicated. The court noted, because the decedent’s death from his injuries occurred more than 300 weeks after the injuries occurred, the widow was, therefore, presumably not eligible for fatal claim benefits, leaving her without a remedy under the straightforward operation of Sections 306(g), 307 and 301(c)(1) of the Act. According to the court, the proper test for a Section 410 claim requires the claimant to have a pending petition or claim that is not yet adjudicated at the time of the claimant’s death; the claim, as posed at the time of filing, must be meritorious and the claimant must prevail. If both elements are met, the amount due to the claimant to the date of death, regardless of the cause of death, shall be paid to the dependents entitled to compensation or, if no dependents, then to the Estate of the decedent. 

The court held this case met the test, and they, therefore, vacated the Board’s order with a remand for the Board to issue a decision on the merits of the claimant’s petition to convert his TTD to specific loss benefits. If the petition would have succeeded, the employer would be obligated to pay the claimant’s widow the full amount of the award. 

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_{What’s Hot in Workers’ Comp, Vol. 29, No. 1, January 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}