Gairt v. Curry Coal Mining Co.

• Decision Date: 03 January 1922
• Docket Number: 49
• Parties: Gairt v. Curry Coal Mining Co. et al., Appellants
• Court: Pennsylvania Supreme Court

116 A. 382

Gairt v. Curry Coal Mining Co. et al., Appellants

272 Pa. 494

No. 49

Supreme Court of Pennsylvania

January 3, 1922

Argued October 26, 1921

Appeal, No. 49, Oct. T., 1921, by defendants, from order of C.P. Cambria Co., Sept. T., 1920, No. 411, affirming decision of the Workmen's Compensation Board, in case of Joe Gairt v. Curry Coal Mining Co. and Aetna Life Ins. Co., insurance carrier. Affirmed.

Appeal from Workmen's Compensation Board. Before EVANS, J.

The opinion of the Supreme Court states the facts.

Decision affirmed. Defendants appealed.

Error assigned, inter alia, was order, quoting it.

The assignments of error are overruled and the judgment is affirmed.

William A. Challener, with him Clarence Burleigh and F. J. Hartmann for appellants.

Chas J. Margiotti, with him McCann & McCann and James W. Leech, for appellee.

Before MOSCHZISKER, C.J., FRAZER, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

Joe Gairt, claimant and appellee, on October 10, 1919, presented a petition to the Workmen's Compensation Board to reinstate a compensation agreement, which had been entered into May 4, 1917, between him, the Curry Coal Mining Company, defendant, and the Aetna Life Insurance Company, insurance carrier (intervenor), for injuries which Gairt had sustained, on March 10, 1917, while in the course of his employment as a coal miner for defendant.

On July 29, 1918, the compensation authorities made an order that the agreement of May 4, 1917, should "terminate," for "total disability," as of July 9, 1918, and that further compensation, "to be determined after claimant has returned to work and his loss of earning power has been established," should be paid for "partial disability." Payments ceased as of July 9, 1918. Between December 2, 1918, and March 24, 1919, three separate petitions were presented by Gairt, asking for review and modifications, all of which were refused. On August 24, 1920, the board, acting on the petition of October 10, 1919, first above mentioned, found that claimant was totally and permanently disabled; and it made an order reinstating the compensation agreement as of July 9, 1918. This was affirmed by the common pleas; and thereupon defendant and the insurance carrier appealed.

Appellants contend that the compensation authorities were without jurisdiction to make the order now before us, because claimant's right to receive compensation covering the period since July 9, 1918, was finally adjudicated against him by the refusal of the three prior petitions, and the board's power to act in that regard was exhausted. As to this, the court below held that the original order, stopping payments to claimant, "clearly left open," to be fixed at a subsequent date, "the payments to be made on account of the injury, the amount of these payments to be determined on a later investigation"; adding: "The last investigation satisfied the board, on the question of fact, that the claimant had never been able to resume [his normal] work . . . and it made, inter alia, the following findings of fact, amply supported by testimony: 'These injuries are permanent, and have rendered him unfit for the occupation in which he was engaged at the time of the injury, namely, that of a miner. . . . Claimant made a real effort to work, but was unable to do so, frequently being compelled to move about on his hands and knees because of the pain and inconvenience suffered in his efforts to comply with the referee's order . . . [He] has demonstrated in his efforts, as well as by the medical testimony taken in these proceedings, that he is totally and permanently disabled.' [Again it may be said], the questions as to the extent of the injury, and the extent of its interference with the ability of the claimant to labor, were clearly left open by the order and decree of July 29, 1918, and the investigation subsequently made satisfied the board that the injury resulted in total disability. . . . The referee, in the first instance, very properly undertook to relieve the defendant from the obligation to pay until the exact status of the claimant could be determined . . ., [and] . . . the testimony in the proceedings [for review and modification] did not develop what the present testimony clearly reveals."

We quite agree with the conclusion reached by the compensation board and affirmed by the learned court below; and, since the chairman of the former, in his opinion filed in this case, so correctly states the law, we quote therefrom as follows "The act gives to the board jurisdiction over an agreement [for purposes of review] at any time...