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The estate of a Sunoco employee is not eligible for specific loss benefits for a permanent injury that ultimately contributed to her death when she had already been collecting total disability benefits for that injury, the Commonwealth Court has ruled in an apparent case of first impression. In Estate of Rosalie Harris v. Workers’ Compensation Appeal Board, the board had affirmed a workers’ compensation judge’s decision that Harris’ eligibility to pursue specific loss benefits for the above-knee amputation of her right leg did not transfer to her estate upon her death. “The estate would have this court create a new category of claim, i.e., payment of specific loss benefits to an estate, not a dependent, where death is caused by the work-related injury and not by another cause,” Judge Mary Hannah Leavitt wrote. “This claim has no grounding in the language of the [Pennsylvania Workers' Compensation] Act and is at odds with case law precedent. The General Assembly has spoken, and we are so bound.” Leavitt was joined by Judge Bernard L. McGinley and Senior Judge Joseph F. McCloskey. According to the opinion, Harris, a 61-year-old mother of five adult children, was critically injured in a September 1999 motor vehicle accident while on the job. In mid-November, her right leg was amputated due to gangrene. Ten days later, she died as a result of injuries from the accident. Sunoco paid Harris’ medical bills and her total disability benefits until her death, the opinion states. The company also paid the statutory funeral allowance after Harris died. In January 2002, according to the opinion, Harris’ estate petitioned to be allowed to recover specific loss benefits for Harris’ injury. Harris had named her children, none of whom was dependent on her for support, as her heirs; she had requested in her will that husband John, from whom she was separated, be excluded from any distribution of her estate. The WCJ ruled that Harris’ estate could not be awarded specific loss benefits because her heirs were not dependents and because she died of a work-related injury, the opinion states. After the board affirmed, Harris’ estate appealed. The opinion notes that “specific loss” refers to the three types of disability classifications under the Pennsylvania Workers’ Compensation Act: total, partial and permanent. The underlying disability need not cause wage loss for the worker to be awarded benefits for it. “In sum,” Leavitt wrote, “had Harris survived her injuries, she could have pursued a specific loss benefit for the loss of her lower right leg.” According to the opinion, Harris’ estate, arguing that Harris had effectively incurred the loss of the whole leg, calculated that under the provisions of the Workers’ Compensation Act, she would have been eligible for more than $240,000 in benefits. Harris’ survivors are not eligible for “fatal claim” benefits under the act, the panel concluded, because none of them could show dependency. Moreover, the act mandates that specific loss benefits’ eligibility survives only for a worker’s dependents and only where the worker’s death was not caused by the injury in question. If no dependents are eligible in such an instance, the opinion states, citing the act, then payments totaling reasonable funeral expenses are made to the estate. The opinion also calls attention to the fact that injured workers must personally elect for either total disability or specific loss benefits. The court disagreed with the estate’s assertion that the act does not specifically proscribe payment of specific loss benefits in cases such as this. “Under the statutory construction principle expressio unius est exclusio alterius, we must find that because the General Assembly conditioned payment of specific loss benefits on a death by cause other than the work injury that it intended to exclude the alternative, i.e., death by the work injury,” Leavitt wrote. “There is a sound reason for this canon of construction; without it, the act would have been twice as long because its drafters would have been required to couple every declarative sentence with its obverse.” Moreover, Leavitt wrote, because Sunoco has already paid Harris’ funeral expenses, it has satisfied what payment it would have owed the dependent-less Harris had she elected for specific loss benefits prior to her death. The attorney for Harris’ estate, Richard W. Rosenblitt of Barbieri & Borjeson, said that he had expected that the Commonwealth Court would rule against his client because of the abundance of case law supporting the board’s decision. “We will appeal to the [state] Supreme Court,” said Rosenblitt, who represented the estate along with Eric S. Borjeson. He added, “We do believe that this is a case of statutory interpretation.” Shawn C. Gooden of Swartz Campbell, who handled Sunoco’s case with Charles S. Katz Jr., said that the decision in Harris was not likely to have a wide-reaching impact on future specific loss/total disability cases. “Essentially, the Commonwealth Court has maintained the status quo here,” Gooden said. “In this particular situation, the only unique thing is that the claimant died without anyone dependent on her.” (Copies of the 11-page opinion in Estate of Rosalie Harris v. Workers’ Compensation Appeal Board , PICS No. 04-0444, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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