              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Veronesi Building and Remodeling,           :
Inc.,                                       :
                  Petitioner                :
                                            :
           v.                               :
Workers' Compensation Appeal                :
Board (Corvin, Deceased, Corvin),           :   No. 2002 C.D. 2014
                  Respondents               :   Argued: June 17, 2015

BEFORE:      HONORABLE DAN PELLEGRINI, President Judge1
             HONORABLE BERNARD L. McGINLEY, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                               FILED: January 29, 2016
             Veronesi Building & Remodeling, Inc. (Employer) petitions from the
order of the Workers’ Compensation Appeal Board (Board) that affirmed the
Workers’ Compensation Judge’s (WCJ) dismissal of Employer’s Petition to
Review and Suspend Anita Corvin’s (Claimant) fatal claim benefits.2


                   I. Petition To Review And Suspend Benefits.
             Employer’s Petition to Review and Suspend Claimant’s benefits
alleged that “Claimant is capable of self-support and is no longer entitled to


      1
         This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
       2
         Claimant is the surviving spouse of David Corvin (Decedent).
compensation benefits.” Petition to Review and Suspend Benefits, August 28,
2012, at 1-2; Reproduced Record (R.R.) at 1a-2a.


               Claimant filed an Answer and responded:

               It is denied Claimant widow is capable of self-support
               without her workers’ compensation widow’s death
               benefit entitlement as was awarded by the WCJ’s
               Decision of April 28, 2000. It is further denied that
               supersedeas and/or the Suspension and/or the Review
               Petition is/are warranted or legally appropriate. Same
               should be denied and penalties and unreasonable contest
               fee awarded to Claimant.
Claimant’s Answer, September 12, 2012, at 1; R.R. at 5a.


                                   II. The WCJ’s Decision.
               The WCJ made the following relevant findings of fact3:

               1. Anita Corvin, the Claimant, filed a Fatal Claim
               Petition on December 22, 1997, and alleged that the
               Decedent [David Corvin] was involved in a fatal
               automobile accident on July 11, 1997.

               2. In a Decision and Order circulated on April 8, 2000
               the undersigned Workers’ Compensation Judge granted
               the Claimant’s Fatal Claim Petition. The Workers’
               Compensation Judge found the Claimant was living with
               her deceased husband [David Corvin] at the time of his
               death….Workers’ compensation benefits were awarded.

               3. On August 28, 2012 the Employer filed a Petition to
               Review and a Petition to Suspend workers’ compensation
               benefits to the Claimant widow, Anita Corvin. The

       3
          The parties agree that there is no dispute as to the facts and that the WCJ “bifurcated the
legal issues presented from a decision on the merits.” Brief of Claimant at 3.



                                                 2
          averment of the Employer’s petition is that the Claimant
          is capable of self-support so that her right to
          compensation has ceased.[4]
          4. At the hearing held in this matter on October 3, 2012
          the Claimant moved to dismiss the Employer’s petition
          on the basis that the Section 307 [of the Workers’
          Compensation Act (Act)][5] remedy under which the
          Employer seeks relief is extinguished by operation of
          Commonwealth Court precedent in Oknefski v. Workers’
          [sic] Compensation Appeal Board (Louisiana Pacific
          Corporation), 439 A.2d 846 (Pa. Cmwlth. 1981)….

                                  DISCUSSION

          Regarding the initial eligibility provision set forth above
          [Section 307(7) of the Act, 77 P.S. §562], Oknefski
          decided on equal protection grounds that a widower must
          be treated the same as a widow. Accordingly, a widower
          is initially eligible for compensation if he was living with
          his deceased wife at the time of her death or was then
          actually dependent upon her and receiving from her a
          substantial portion of his support. Following Oknefski,
          the Employer’s remedy is to establish that a spouse is not
          initially eligible for benefits if he or she is capable of
          self-support at the time of his or her spouse’s death and is
          not dependent upon the decedent for support was
          extinguished.

          The Employer argues that the second clause found in
          Section 307(7), which provides benefits cease when a
          widower becomes capable of self-support, survives
          Oknefski. Clearly it does not, because to do so would
          perpetuate an equal protection violation. As stated by the
          Court: ‘Moreover, extension of the widow’s standard (in
          this case allowing no remedy of suspension of benefits of
          a widow allegedly capable of self-support) produces a
          less disruptive effect on the administration of the Act
          than invalidation of the Act, as Respondent urges
          application of the more restrictive widower’s criteria,
4
    Claimant maintains the she is not capable of self-support.
5
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 562.



                                           3
            because the extension will not result in a termination of
            benefits to widows who are currently receiving
            compensation under the less stringent standard.[’]
            [Oknefski] (439 A.2d at 849).
                          CONCLUSIONS OF LAW

            1. The Section 307(7) remedy upon which the Employer
            seeks to rely in its Petition for Review or Suspension of
            workers’ compensation benefits does not survive
            application of the Commonwealth Court’s decision in
            Oknefski.      Because the Claimant’s Review and
            Suspension Petition does not state a cause of action upon
            which relief can be granted, the Review and Suspension
            Petition should be dismissed. (Emphasis added.)

WCJ’s Decision, July 15, 2003, Findings of Fact (F.F.) Nos. 1-4, Discussion and
Conclusion of Law No. 1 at 1-2; R.R. at 30a-31a. The WCJ dismissed Employer’s
Review and Suspension Petitions.


            Employer appealed to the Board and alleged as error:

            The discussion following Finding of Fact 4, to the extent
            it contains and includes factual allegations, is not
            consistent with the evidence of record and is erroneous as
            a matter of law.
            ….
            Conclusion of Law 1 is erroneous as a matter of law,
            insofar as the Judge misinterprets and misapplies the
            Commonwealth Court’s holding and reasoning in
            Oknefski       v.     WCAB         (Louisiana      Pacific
            Corp.)….Oknefski is confined to its facts and does not
            justify the broad reading it has been given by the
            workers’ compensation judge.         To the extent the
            discussion in the Judge’s decision following Finding of
            Fact 4 contains conclusions of law, the discussion is also
            contrary to the Court’s holding in Oknefski and
            erroneous as a matter of law.




                                        4
Employer’s Appeal From Judge’s Findings of Fact and Conclusions of Law at 1-2;
R.R. at 33a-34a.


                           III. The Board’s Decision.
            The Board affirmed the WCJ’s decision on other grounds:

            At a hearing on October 3, 2012, Claimant moved for
            dismissal. The WCJ bifurcated the action and accepted
            briefs from both parties. By a decision and order
            circulated July 11, 2013, he concluded that Defendant’s
            petition does not state a cause of action upon which relief
            can be granted.         The WCJ concluded that the
            Commonwealth Court’s decision in Onefski [Oknefski]
            v. WCAB (Louisiana Pacific Corp.), 439 A.2d 846 (Pa.
            Cmwlth. 1981), which invalidated the disparate treatment
            of widows and widowers in establishing eligibility for
            fatal claim benefits, also invalidated the disparate
            treatment of widows and widowers in disqualifying a
            surviving spouse if the surviving spouse becomes capable
            of self- support. The Oneksi [Oknefski] court, after
            concluding that applying different eligibility criteria to
            widows and widowers was unconstitutionally
            discriminatory, determined the appropriate correction
            was to apply the less-stringent eligibility criteria to all
            surviving spouses equally….

            The WCJ reasoned that allowing an employer to petition
            to suspend payment of fatal claim benefits to a widower
            who allegedly becomes self-supporting, but not to a
            widow who allegedly becomes self-supporting, would
            perpetuate an equal protection violation and that
            accordingly, no surviving spouse’s entitlement to fatal
            claim benefits can be challenged on that basis. The WCJ
            therefore dismissed the petition….

            Defendant [Employer] argues that the WCJ’s
            interpretation and application of Onefski [Oknefski] is
            erroneous. We agree.
            ….


                                        5
            Upon review, we cannot agree with the WCJ’s analysis
            and extension of the holding in Onefski [Oknefski] from
            the explicit issue stated, whether the disparate treatment
            of widows and widowers in the Act’s criteria for receipt
            of fatal claim benefits, to the issue presented here. The
            provisions of the Act are severable. 1 Pa. C.S. § 1925.
            That portion of Section 307(7) which states the eligibility
            criteria for fatal claim benefits is not inseparably
            connected with or dependent upon the portion which
            permits termination of fatal claim benefits. Therefore,
            the invalidation of the provision of Section 307(7)
            treating widows and widowers differently with regard to
            eligibility for fatal claim benefits, does not require
            invalidation of the later clause stating different rules for
            suspending or terminating fatal claim benefits. We
            therefore agree with Defendant [Employer] that the WCJ
            erred by dismissing its petition pursuant to Onefski
            [Oknefski].

            Nevertheless, the language of the contested provision,
            ‘Should the widower become capable of self-support, the
            right of such…widower to compensation under this
            section shall cease,’ is not ambiguous and therefore, the
            letter of the statute is not to be disregarded. 1 Pa. C.S. §
            1921(b). There is no dispute that Claimant is a widow;
            therefore, the provision does not apply to her. An
            appellate tribunal may affirm a lower tribunal’s order on
            different grounds where the basis for the correct ruling
            and order is not clear on the record. Tynan v. WCAB.
            (Assoc. Cleaning Consultant & Servs.), 639 A.2d 856
            (Pa. Cmwlth. 1994).           Accordingly, we affirm the
            dismissal of Defendant’s [Employer’s] petition and do
            not reach the equal protection issue.

Board’s Decision, October 8, 2014, (Decision) at 3-6; R.R. at 40a-43a. (Emphasis
added.)


                                    IV. Issues.
            A. Whether the Board erroneously concluded that the benefits payable
  under Section 307 of the Act are survivorship benefits rather than dependency
                                     benefits?

                                         6
              Initially, Employer contends6 that the Board erroneously concluded
that the benefits payable under Section 307 of the Act, 77 P.S. §562, are
survivorship benefits rather than dependency benefits.


              Specifically, Employer asserts that “[b]enefits payable under Section
307 of the Act are paid in certain situations and to certain persons as a result of
dependency.       Eligible individuals identified in Section 307 of the Act are
consistently identified throughout as dependents.”              Brief of Employer at 10.
Employer concludes that Oknefski is limited to the initial eligibility of widows or
widowers for death benefits, not the continued eligibility of persons receiving
dependency benefits. See Employer’s Brief at 12.


              Claimant responds that “the evident intent of the Legislature was at
the time of the statute’s enactment, and remains, to bestow lifetime benefits on
widows of workers killed in the course of employment, irrespective of whether
they subsequently become capable of self-support….” (Emphasis added.) Brief of
Claimant at 9. Claimant argues that continued dependency is not an issue.


              Section 307 of the Act, 77 P.S. § 562, in relevant part, provides:

              No compensation shall be payable under this section to a
              widow, unless she was living with her deceased husband
              at the time of his death, or was then actually dependent
              upon him and receiving from him a substantial portion of

       6
          This Court's scope of review is limited to determining whether there has been a
violation of constitutional rights, or an error of law committed, and whether necessary findings
of fact are supported by substantial evidence. Lehigh County Vo-Tech School v. Workmen's
Compensation Appeal Board (Wolfe), 652 A.2d 797 (Pa. 1995).



                                               7
            her support. No compensation shall be payable under
            this section to a widower, unless he be incapable of self-
            support at the time of his wife’s death and be at such time
            dependent upon her for support….

            Should any dependent of a deceased employe die or
            remarry, or should the widower become capable of self-
            support, the right of such dependent or widower to
            compensation under this section shall cease except that if
            a widow remarries, she shall receive one hundred four
            weeks compensation…in a lump sum after which
            compensation shall cease…Provided, however, That if,
            upon investigation and hearing, it shall be ascertained
            that the widow or widower is living with a man or
            woman, as the case may be, in meretricious relationship
            and not married, or the widow living a life of
            prostitution, the board may order the termination of
            compensation payable to such widow or widower….
            (Emphasis added.)


            In Oknefski, this Court addressed the issue of whether the eligibility
criteria for widowers and widows seeking compensation benefits upon the death of
a spouse violated equal protection pursuant Section 307 of the Act:

            The facts as found by the referee, and affirmed by the
            Board, are not in dispute. Petitioner’s wife died directly
            as the result of a work-related incident in the course of
            her employment.        Until the time of her demise,
            Petitioner’s wife was married to and living with
            Petitioner.
            ….
            ‘[I]n considering the equal protection clause we evaluate
            the disparity of treatment by the state between classes of
            individuals      whose     situations     are    arguably
            indistinguishable.’ McCoy M.D. v. State Board of
            Medical Education and Licensure, 37 Pa. Commonwealth
            Ct. 530, 537, 391 A.2d 723, 726 (1978). To survive a
            constitutional challenge, ‘gender-based discriminations
            must serve important governmental objectives and…the
            discriminatory means employed must be substantially


                                         8
related to the achievement of those objectives.’ Wengler
v. Druggists Mutual Insurance Co., 446 U.S. 142, 150…;
Leap v. Department of Labor and Industry, 14 Pa.
Commonwealth Ct. 324, 322 A.2d 398 (1974).
….
‘The burden…is on those defending the discrimination to
make out the claimed justification, and this burden is not
carried simply by noting that [when the act was passed]
the state legislature thought widows to be more in need
of prompt help than men or that today ‘the substantive
difference in economic standing of working men and
women justifies the advantage’ given to widows….[T]he
bare assertion of this argument falls far short of justifying
gender-based discrimination on the grounds of
administrative convenience.’ Wengler v. Druggists
Mutual Insurance Co., 446 U.S. at 151…(quoting
Wnegler [sic] v. Druggists Mutual Insurance Co., 583
S.W.2d 162, 168 (Mo. Supreme Ct. 1979.))
….
‘Where a statute is defective because of under-inclusion
[as in this case] there exists two remedial alternatives: a
court may either declare [the statute] a nullity and order
that its benefits not extend to the class that the legislature
intended to benefit, or it may extend the coverage of the
statute to include those who are aggrieved by the
exclusion.’ Welsh v. United States, 398 U.S. 333,
361…(1970)….
….
Here, the legislative policy underlying Section 307, i.e.,
protection against the loss of decedent’s income, is
evidenced by the fact that benefits payable to the survivor
are calculated as a percentage of the deceased wage
earners salary….Thus, extension of the widows’ standard
to widowers comports with the remedial purpose of the
Act by protecting widowers as well as widows against
the loss of a deceased wage earner’s income.

Moreover, extension of the widows’ standard produces a
less disruptive effect on the administration of the Act
than invalidation of the Act or, as Respondent urges,
application of the more restrictive widower’s criteria,
because the extension will not result in a termination of


                              9
             benefits to widows who are currently receiving
             compensation under the less stringent standard.

Oknefski, 439 A.2d at 847-849. (Emphasis added and footnotes omitted.)


             Employer argues that under Section 307 of the Act, the General
Assembly intended to only compensate for dependency, rather than just
survivorship. To effectuate that legislative intent, Employer contends that fatal
claim benefits should be terminated when either the widow or widower becomes
capable of self-support, and the termination provision should apply equally to both
genders. However, this argument is without merit.


             There is no legal basis to suspend a widow’s continued entitlement to
established spousal death benefits premised on the argument that the widow is now
capable of self-support. Section 307 of the Act, 77 P.S. § 562, clearly states that
“should the widower become capable of self-support, the right to…compensation
shall cease.” Section 307 of the Act does not provide any legal basis to terminate a
widow’s spousal death benefits. In fact, our Legislature’s intent at the time of the
enactment of Section 307 of the Act, and presently, is to bestow lifetime benefits to
widows of workers killed in the course of employment regardless of whether they
become capable of self-support.


             In all matters involving statutory interpretation, we apply the Statutory
Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991. Commonwealth v. McCoy,
962 A.2d 1160, 1166 (Pa. 2009). “The object of statutory interpretation is to
determine the intent of the General Assembly.” Pa. Department of Transportation,
Bureau of Driver Licensing v. Weaver, 912 A.2d 259, 264 (Pa. 2006) (citing 1 Pa.

                                         10
C.S. § 1921(a)). The touchstone of statutory interpretation is that where a statute is
unambiguous, the judiciary may not ignore the plain language “under the pretext of
pursuing its spirit,” for the language of a statute is the best indication of legislative
intent. Weaver, 912 A.2d at 264 (quoting 1 Pa. C.S. § 1921(b)). Words and
phrases should be construed in accordance with their common and approved usage.
1 Pa. C.S. § 1903(a). When the words of a statute are clear, there is no need to
look beyond the plain meaning of a statute. See, e.g., Commonwealth v. McClintic,
909 A.2d 1241, 1245 (Pa. 2006) (citing Sternlicht v. Sternlicht, 876 A.2d 904, 909
(Pa. 2005), and Ramich v. Workers’ Compensation Appeal Bd. (Schatz Elec., Inc.),
770 A.2d 318, 322 (Pa. 2001)). If a statute is deemed ambiguous, however, resort
to principles of statutory construction is appropriate. 1 Pa. C.S. § 1921(c);
Commonwealth v. Packer, 798 A.2d 192, 196 (Pa. 2002).


             Here, Employer’s proposed remedy contravenes both the plain
language and intent of Section 307 of the Act and would, in effect, rewrite Section
307 to include a new reason for terminating a widow’s benefits, something our
General Assembly has not intended. 7 This Court concludes that there is no basis in
Section 307 of the Act, 77 P.S. § 562, to suspend a widow’s continued entitlement
to established spousal death benefits even if she is capable of self-support.


B. Whether the Board’s Decision denies equal protection of the law by incorrectly
and unconstitutionally supporting a gender based bias for the standards applicable
     to the continued receipt of death benefits under Section 307 of the Act?

      7
          This Court notes that subsequent to our holding in Oknefski in 1981, our General
Assembly has enacted numerous amendments to the Act. However, the General Assembly has
seen fit not to change the statutory language in Section 307 which permits widows to retain
spousal benefits.



                                            11
               Employer also argues that the Board denied it equal protection of the
law by incorrectly and unconstitutionally supporting a gender based bias for the
standards applicable to the continued receipt of death benefits under Section 307 of
the Act.


               This Court concurs with the Board’s determination that there is no
need to address the equal protection issue.8


               Accordingly, the decision of the Board is affirmed.


                                             ____________________________
                                             BERNARD L. McGINLEY, Judge




       8
          Assuming arguendo that this Court were to reach the merits concerning Employer’s
constitutional argument, this Court would still find no basis to cut off Claimant’s entitlement to
death benefits pursuant to Oknefski. Here, as in Oknefski, this Court would extend the same
standard for widows to widowers so that widowers do not lose their fatal claim benefits if they
become capable of self-support which “comport[s] with the remedial purpose of the Act by
protecting widowers as well as widows against the loss of a deceased wage earner’s income.”
Oknefski, 439 A.2d at 849.



                                               12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Veronesi Building and Remodeling,      :
Inc.,                                  :
                  Petitioner           :
                                       :
           v.                          :
Workers' Compensation Appeal           :
Board (Corvin, Deceased, Corvin),      :   No. 2002 C.D. 2014
                  Respondents          :


                                    ORDER

            AND NOW, this 29th day of January, 2016, the order of the Workers’
Compensation Appeal Board in the above-captioned matter is affirmed.


                                       ____________________________
                                       BERNARD L. McGINLEY, Judge
