The cases have arisen under varying statutes and at varying times in the development of this body of law, but generally adopt the rationale that an award for disfigurement compensates for loss of earning capacity and results in duplication of benefits where an award has also been made for permanent total disability. See Gallman v. Walt's Tree Service, Inc., 43 A.D.2d 419, 352 N.Y.S.2d 516 (1974); Miller v. General Chemical Division, 128 So.2d 39 (La. App. 1961); Garrett's Furniture Co. v. Morgan, 498 P.2d 1380 (Okla. 1972); Burnette v. Startex Mills, 195 S.C. 118, 10 S.E.2d 164 (1940); Stanley v. Hyman-Michaels Co., 22 S.E.2d 570 (N.C. 1942); Baffi v. Lehigh Valley Coal Co., 87 Pa. Super. 579 (1926); Todd Shipyards Corp. v. Pillsbury, 136 F. Supp. 846 (S.D. Cal. 1955), aff'd. 236 F.2d 559, 239 F.2d 273 (9th Cir. 1956).
The compensation is paid during the period of disability — the period of total disability — which shall not exceed 400 weeks, and after that at the rate of $5 per week.' "In the case of Baffi v. Lehigh Valley Coal Co., 87 Pa. Super. 579, the court held that, when compensation was paid for permanent total disability, no other allowance could be made in addition thereto, and the court said in part: "`When this claimant was paid the maximum amount for total disability, that ended the matter.
When total disability has been compensated, the workman cannot tag on another disability. Baffi v. Valley Coal Co., 87 Super. Ct. 579; Marsh v. Aljoe, 41 Wyo. 220. The burden is upon the claimant to prove the injury due to accident without aggravation. Ruth v. Witherspoon-Englar Company (Kans.
" It was the legislative thought that, apart from death, nothing in the act could exceed total disability, and when for such disability the legislature fixed the maximum payments and a total period during which compensation could be paid, it set the limits for all disability. It was not intended under this act that compensation for other disabilities or injuries should exceed that total. Under appellant's construction of the act, it would be possible for an employee to be entitled to compensation at the maximum rate of $12 a week for 1,110 weeks, or $13,320; under such construction he would be compensated more than twice that given for total disability both in the gross sum paid and in the number of weeks in which paid. It is obvious that such a result was never intended; a claimant, as was said in Baffi v. Lehigh Valley Coal Co., 87 Pa. Super. 579, "cannot be more than totally disabled, and when the fact appears that total disability has been compensated for, he cannot tag on another liability." See also Sustar v. Penn Smokeless Coal Co., 85 Pa. Super. 531, affirmed 285 Pa. 395.
" In the case of Baffi v. Lehigh Valley Coal Co., 87 Pa. Super. 579, the court held that when compensation was paid for permanent total disability no other allowance could be made in addition thereto, and the court said in part: "When this claimant was paid the maximum amount for total disability, that ended the matter.
This provision is, however, merely declaratory of the law as it existed prior to 1939 where an employee, in the same or successive accidents, suffered injuries compensable under clause (c) in combination with either clause (a) or (b), and where he received the maximum weekly compensation under one or another of the clauses during part or all of the period of his disability. In that event, the rule was that the periods under all the clauses ran concurrently, and there could be no additional compensation to allow for the overlapping time: Baffi v. LehighValley Coal Co., 87 Pa. Super. 579; Ludington v. RussellCoal Mining Co., 90 Pa. Super. 318; Olinsky v. LehighValley Coal Co., 93 Pa. Super. 221; Rocco v. PennsylvaniaCoal Co., 93 Pa. Super. 224; Helitski v. Glen Alden CoalCo., 93 Pa. Super. 225; Ingram v. W.J. Rainey, Inc., 127 Pa. Super. 481, 193 A. 335; Madajewski v. SusquehannaCollieries Co., 135 Pa. Super. 181, 4 A.2d 809. "If, as stated, the compensation fixed under section 306(a) or section 306(b) begins to run under the same provisions, that is, at the same time as does section 306(c), there is no other conclusion but that the periods mentioned run concurrently. It is clear that the legislature intended that under `a', `b' and `c' compensations could not be pyramided, and, where as here, the maximum weekly compensation was paid, it covers all disability during the period paid, and where compensation is allowable under a paragraph other than that paid for, the beginning date must be the date of the injury and the number of weeks claimed must extend from that tim
An employe who suffers the loss of two or more members in the same accident in the course of his employment is entitled to compensation under section 306(c) for the aggregate periods allowed for the several injuries, but in no event shall the compensation period extend beyond the limitation provided for total disability or the maximum compensation fixed by the statute: Lente v. Luci, 275 Pa. 217, 222, 119 A. 132; Bausch v.Fidler, 277 Pa. 573, 121 A. 507; Sustar v. Penn Smokeless CoalCo., etc., 85 Pa. Super. 531; Bauman v. Spokas, 146 Pa. Super. 530, 534, 23 A.2d 211. In Baffi v. Lehigh Valley Coal Company, 87 Pa. Super. 579, 581, we held that one cannot be more than totally disabled and "when the fact appears that total disability has been compensated for, he cannot tag on another disability." In Rocco v. Pennsylvania Coal Company, 93 Pa. Super. 224, the claimant was injured on October 11, 1924. He lost the sight of an eye and his leg was broken.
He set aside the final receipt, modified the agreement, awarded compensation for disfigurement at the rate of $7.12 a week for a period of seventy-five weeks, the employer to be credited with the compensation paid for the disability that terminated on June 29, pursuant to the rule considered in Helitski v. Coal Company, 93 Pa. Super. 225. This award was affirmed by the board, and on appeal, by the common pleas. Section 306 has been considered in many cases, among them, Lente v. Lucci, 275 Pa. 217; Simon v. Maryland, etc. Company, 276 Pa. 473; Sustar v. Penn Smokeless Coal Company, 85 Pa. Super. 531, 285 Pa. 395; Vonot v. Coal Company, 285 Pa. 385; Baffi v. Lehigh Valley Coal Company, 87 Pa. Super. 579; Olinsky v. Lehigh Valley Coal Co., 93 Ib. 221; Rocco v. Coal Co., 93 Ib. 224; Helitski v. Coal Company, 93 Ib. 225; Ludington v. Coal Company, 90 Ib. 318. The paragraph of section 306-c, immediately applicable, provides that compensation may be awarded "for serious and permanent disfigurement of the head and face of such a character as to produce an unsightly appearance and such as is not usually incident to the employment sixty-five per centum of wages not to exceed one hundred and fifty weeks." The finding of facts, quoted above, is in the words of the statute.
Recent decisions support this view. In Baffi v. L.V. Coal Co., 87 Pa. Super. 579, a claimant who had lost both eyes and had also sustained disfigurement, sought compensation. The loss of both eyes was held to constitute total disability under 306-a and to be compensable accordingly, but no additional sum was allowed for the disfigurement.
Further, by allowing Claimant to receive concurrent awards for overlapping total disabilities, the WCJ simply ignores the fact that, as of October 22, 1996, Claimant was totally disabled and, thus, incapable of performing any work. As such, she had no current earning capacity at the time of the September 1, 1997 reinstatement. It stands to reason, and the courts have long held, that, short of death, a claimant can never be more than totally disabled. See, e.g., Barlock v. Orient Coal Coke Co., 319 Pa. 119, 178 A. 840 (1935); Ingram v. W.J. Rainey, Inc., 193 A. 335 (Pa.Super. 1937); Baffi v. Lehigh Valley Coal Co., 87 Pa. Super. 579 (1926). Yet, in granting the award here, the WCJ assumes that Claimant is totally disabled, twice and at the same time, from her employment with Employer. This cannot be. Because Claimant's maximum wages, or earning power, with Employer never exceeded her pre-injury average weekly wage of $584.56, the greatest compensation rate for total disability based upon that loss of earning power is $389.71.