Barlock v. Orient Coal & Coke Company

• Decision Date: 13 July 1934
• Docket Number: 290-1934
• Parties: Barlock v. Orient Coal & Coke Company et al., Appellants
• Court: Pennsylvania Superior Court

173 A. 666

114 Pa.Super. 228

Barlock v. Orient Coal & Coke Company et al., Appellants

No. 290-1934

Superior Court of Pennsylvania

July 13, 1934

Argued April 23, 1934

Appeal by defendants from judgment of C. P., Allegheny County January T., 1934, No. 3244, in the case of Jerry Barlock v Orient Coal & Coke Co. and American Mine Owners Division of the Metroplitan Casualty Insurance Company of New York.

Rule to strike off a judgment. Before Dithrich, J.

The facts are stated in the opinion of the Superior Court.

The court dismissed the rule after the claimant filed a remittitur for all sums in excess of $ 880.20. Defendants appealed.

Error assigned, among others, was the order of the court.

Reversed.

Samuel G. Wagner, and with him Leo A. Nunnink of Meyer & Nunnink, for appellant, cited: Bausch v. Fidler, 277 Pa. 573; Olinsky v. Lehigh Valley Coal Co., 93 Pa.Super. 221; Rocco v. Pennsylvania Coal Co., 93 Pa.Super. 224; Helitsky v. Glen Alden Coal Co., 93 Pa.Super. 225.

Nicholas Unkovic, for appellee, cited: Ludington v. Russell Coal Co., etc., 90 Pa.Super. 318; Woodward v. Pittsburgh E. & C. Co. et al., 293 Pa. 338.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Cunningham, J.

The question involved upon this appeal is one of law and requires a construction of Section 306 (b) of the Workmen's Compensation Act of June 2, 1915, P. L. 736, as amended by the Act of June 26, 1919, P. L. 642, and of Section 306 (c) of that act, as amended by the Act of 1919, and as further amended by the Acts of May 20, 1921, P. L. 966, and March 29, 1923, P. L. 48.

It may be thus stated in general terms: When an injured employe is entitled to compensation under paragraph (c) for the permanent loss of the use of a member and also to compensation under paragraph (b) for disability, partial in character and separate and distinct from that caused by the loss of the use of the member, does the period of "not beyond three hundred weeks" prescribed in paragraph (b) begin to run on the tenth (now seventh) day after the accident, or not until the expiration of the definite period specified in paragraph (c)?

No facts are in dispute. Jerry Barlock, the claimant, sustained an accidental injury in the course of his employment as a miner with the Orient Coal and Coke Company on August 3, 1927. The injury, in the language of the referee, was "caused by a fall of slate, fracturing the tibia and fibula and small bones in the right foot, as well as the left femur, and as a result of this accident and injury the claimant was immediately totally disabled."

An open agreement for compensation, at the rate of $ 12 per week, was executed and claimant was paid for total disability from the tenth day after the accident, August 13, 1927, to October 27, 1932, a period of 272 weeks at $ 12 per week, or a total of $ 3,264. Shortly after the agreement became operative it developed that claimant had suffered the permanent loss of the use of his left leg and therefore was entitled to receive compensation under paragraph (c) at the rate of $ 12 per week for a period of 215 weeks. His employer did not discontinue payments at the rate of $ 12 per week at the end of 215 weeks (at which time they aggregated $ 2,580) but continued them for 57 additional weeks.

In the meantime, namely on September 10, 1932, the employer filed its petition for a modification of the agreement into one for partial disability. In disposing of this petition the referee found that, in addition to the loss of the use of his left leg, claimant had suffered "sufficient pathology in his right leg from the knee down due to his accident and injury to constitute a disability of twenty-five per cent," and, in effect, that this incapacity extended beyond the definite period under paragraph (c) and would continue for at least 300 weeks. He further found that claimant's injuries were confined to his left leg and right foot; that the injury to the left leg resulted in "a specific loss, as provided for in Section 306 (c)"; and that "the disability he now [May 12, 1933] suffers in his right leg would be so reflected in his earning power as to cause a 25% loss in earnings, or $ 8.69 per week" -- his wages at the time of the accident having been $ 34.76 per week.

As one of his conclusions of law, the referee found compensation for claimant "should be provided for the loss of the leg under Section 306 (c), and at the expiration of said period claimant would be entitled to be compensated for his partial disability under Section 306 (b)."

Upon these findings the referee made an award under date of May 12, 1933, reading as follows:

"Compensation is awarded to claimant and against the defendant at the rate of $ 12 per week, beginning August 13, 1927, and to continue for a period of 215 weeks for the loss of claimant's left leg as provided in Section 306 (c), and at the expiration of this foregoing period compensation is awarded to claimant at the rate of 60% of $ 8.69 or $ 5.214 per week and to continue at said rate for partial disability as provided in Section 306 (b) of the Workmen's Compensation Act of Pennsylvania, defendant, however, to take credit in this award for the number of weeks they have already paid claimant under the agreement."

This award was affirmed by the board and not appealed from by the employer. On November 17, 1933, counsel for claimant entered judgment thereon for $ 1,267, calculated as follows: To the period of 215 weeks under paragraph (c) was added a period of 300 weeks under paragraph (b) making a total of 515 weeks. From this total was subtracted the period of 272 weeks during which the employer had paid compensation, at the rate of $ 12 per week, leaving a remainder of 243 weeks for which period compensation was claimed at the rate of $ 5.214, or a total of $ 1,267.

The employer then took a rule to strike off the judgment. Its contention was that the full extent of its liability was for 215 weeks, at $ 12 per week, under paragraph (c) for the loss of the left leg, or a total of $ 2,580 under this paragraph, and then for partial disability under paragraph (b) for an additional period of 85 weeks, at $ 5.214 per week, or a total of $ 443.19, thereby making its total liability $ 3,023.19; but, as it had already paid claimant 272 weeks, at $ 12 per week, or $ 3,264, he had been overpaid $ 240.81.

In disposing of this rule the court below, in an opinion by Dithrich, J., affirmed the principles upon which the compensation authorities acted, but pointed out that in their application to the facts (particularly that the employer had paid at the rate of $ 12 per week for 272 instead of 215 weeks) the referee and board had erred in authorizing the employer to take credit for "the number of weeks" already paid under the agreement instead of for "the sums already paid."

Applying the decision, the calculation would be 215 weeks at $ 12 per week, or $ 2,580, plus 300 weeks at $ 5.214, or $ 1,564.20, making a total of $ 4,144.20, of which the employer had already paid $ 3,264, leaving a balance due claimant of $ 880.20.

An order was accordingly made, under date of January 31, 1934, making the rule absolute unless claimant remitted all of the judgment in excess of the sum of $ 880.20; a remittitur was duly filed.

As this case was presented to the court below by agreement of the parties, we here have an employe receiving injuries to each leg in the same accident, with total disability resulting at first. When it developed that the injury to the left leg amounted to the permanent loss of its use, although it was not removed, the employe admittedly became entitled to an award for 215 weeks under paragraph (c).

As we understand the record, it is conceded by appellants that at the expiration of the fixed period under paragraph (c) claimant, by reason of the injury to his right leg, had a partial disability, separate, apart, and distinct from that incident to the permanent loss of the use of his left leg, and that this partial disability would continue for an additional period of at least 300 weeks.

It is also conceded that, under the principles announced in Lente v. Luci, 275 Pa. 217, 220, 119 A. 132, this partial disability was compensable under paragraph (b) for 85 additional weeks -- the only difference being that the language in the case cited refers to injuries to other parts of the body resulting directly from the permanent injury while here they were not produced by, or directly connected with, the permanent injury, but were received in the same accident.

This case therefore comes down, under its admitted facts, to this question of law: Whether the period of 300 weeks for partial disability under paragraph (b) began to run upon the tenth day after the accident and ran concurrently with the fixed period of 215 weeks under paragraph (c); or whether it began after the expiration of the definite period in paragraph (c) and was consecutive thereto; if the periods were concurrent, claimant has been overpaid by the amount of $ 240.81 and the action of the court below should be reversed and the judgment stricken off; but if they were consecutive, this appeal should be dismissed and judgment, as modified, affirmed.

Appellants cite Ludington v. Russell Coal Company et al., 90 Pa.Super. 318, decided March 3, 1927, as supporting their contention. The controlling facts in that case were that the employe was injured February 21, 1918, and was paid for total disability for a period of 32 weeks; he then lost his right eye as a result of the accident and was paid, under paragraph (c), for the specified period of 125 weeks. At the end of this total period of 157 weeks he was suffering injuries to other parts of his body, separate...