McGee v. Youghiogheny & Ohio Coal Co.

• Decision Date: 31 January 1936
• Docket Number: 13-1936
• Citation: 121 Pa.Super. 85,182 A. 773
• Parties: McGee v. Youghiogheny & Ohio Coal Company, Appellant
• Court: Pennsylvania Superior Court

182 A. 773

121 Pa.Super. 85

McGee v. Youghiogheny & Ohio Coal Company, Appellant

No. 13-1936

Superior Court of Pennsylvania

January 31, 1936

Argued October 8, 1935

Appeal by defendant, from judgment of C. P., Washington Co., May T. 1933, No. 138, in case of Richard McGee v. Youghiogheny &amp Ohio Coal Company.

Appeal from award of Workmen's Compensation Board.

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

Award affirmed and judgment entered in favor of claimant, before Brownson, P. J., Hughes and Gibson, JJ., opinion by Hughes J. Defendant appealed.

Error assigned, among others, was final decree.

Judgment reversed and record remitted for purpose of entering judgment.

Fred B. Trescher, of Kunkle, Walthour & Trescher, for appellant.

Rufus S. Marriner, of Marriner & Wiley, for appellee.

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

OPINION

Rhodes, J.

This is a workmen's compensation case. The appeal is by an employer from the judgment entered upon an award by the Workmen's Compensation Board in favor of the employee.

The controversy is the result of the claimant's filing, on March 27, 1930, a petition for review of compensation agreement No. 2,523,324, dated August 12, 1929, under Section 413 of the Act of June 2, 1915, P. L. 736, as amended by the Acts of June 26, 1919, P. L. 642, § 6, and April 13, 1927, P. L. 186, § 6 (77 PS §§ 771-774).

The claimant, Richard McGee, was injured, on July 15, 1929, by a fall of slate and coal, at defendant's mine. The parties entered into an open agreement for compensation for total disability at the maximum rate of $ 15 per week. The agreement described the accident as follows: "Fall of slate and coal from rib, left hip and ankle bruised." The agreement also set forth that the average weekly wage of the claimant at the time of the accident was $ 23.37.

The claimant endeavored to return to work, while on crutches, but was unable to continue after nine days, during which time he was engaged in cleaning brick and shoveling sand. On September 21, 1929, he signed a final receipt and received compensation in the amount of $ 57.86, covering a period of three and six-sevenths weeks. This receipt sets forth that his disability began on July 16, 1929, and that he was able to return to work on the 19th day of August, 1929. The rate of wage is not given.

Previous to the accident, claimant was employed by the defendant, loading coal at its mine where he had been so employed for a period of about two years previous to July 15, 1929.

On March 27, 1930, six months after the signing of the final receipt, plaintiff filed with the board his petition "to review the said agreement as provided in Section 413 of the Workmen's Compensation Act of 1919." The ground upon which he sought a review was stated as follows:

". . . . any paper I signed I thought it was a receipt, or receipts, for money due me and not a paper saying that I was able to go back to work and able to work.

"And in support of the above allegations I state the following facts: I did try to work, and I believe it was after I signed the paper, or papers, referred to above; I tried to clean mortar off old bricks and did that right easy, I could sit down. Then I was put at handling sand with shovel but could not do that successfully because could not use my crutch. I never signed a release knowingly."

The defendant answered this petition for review of the compensation agreement, denying that the claimant did not know that he was signing a final receipt. The answer also set forth "That the claimant has fully recovered from the injuries sustained while in the employ of The Youghiogheny & Ohio Coal Co., July 15, 1929. That claimant was badly injured a number of years ago and his physical condition is now the same as it has been for the past ten years"; and that the agreement should not be reinstated, as "the claimant is not now suffering any disability as a result of the injury of July 15, 1929." A hearing was held before Referee Johns on the issues raised by the petition and answer. On May 27, 1930, the referee found that the claimant, on September 21, 1929, at the time he signed the final receipt, was suffering with a disability, partial in character, as a result of the injuries sustained on July 15, 1929; that he still had a disability, partial in character, which prevented him from doing any kind of work requiring him to be on his feet; and that claimant had not established an earning power upon which could be determined his loss in earnings. The referee thereupon set aside the final receipt, reinstated the compensation agreement, and suspended compensation payments, as of September 21, 1929, until such time as claimant established a loss of earning power.

The defendant appealed to the board, and that tribunal, on August 21, 1930, affirmed the findings of fact and order of the referee. There was no appeal from the board's decision.

On October 10, 1930, approximately one year and two weeks after the last payment of compensation, the claimant filed his petition with the board, averring "that subsequent to the said September 21, 1929, my disability continued in the following manner and to the following extent: Has been a total disability, the said claimant has not worked or earned one cent since the date of suspension, September 21, 1929, and now prays to be allowed a hearing for the purpose of showing the extent of loss of earning power." The petition was captioned "Petition for Reinstatement of Compensation Agreement," and petitioned the board "to reinstate the said Agreement which was suspended on September 21, 1929." An answer was filed by the defendant, denying the averments in the petition and alleging that the claimant had no present disability, as the result of the injury complained of, and that he has suffered no loss of earning power. The matter was referred to Referee Johns, who held hearings on the issues raised.

At a special hearing before Referee Lutz, it was agreed between the parties that he should dispose of the case on the testimony previously taken before Referee Johns. Thereupon, he filed his opinion, on August 14, 1931, in which he found that claimant's disability was confined wholly to his left leg, as a result of his accidental injury on July 15, 1929, and that he was apparently totally disabled, but there was no testimony establishing disability, other than to the left leg. The referee provided for the payment of compensation at the rate of $ 15 per week, beginning July 23, 1929, for a period of 215 weeks, with the right to the claimant to ask for further modification of the compensation agreement, should a disability exist beyond the loss of the use of his left leg for industrial purposes, after payments under the agreement had been made. The defendant again appealed to the board, and averred that claimant suffered no disability as the result of the accidental injury on July 15, 1929, and that the only matter properly before the referee was the determination as to the loss of claimant's earning power, and, if such loss were established, then a modification of the agreement in accordance with the referee's determination as to the loss of such earning power.

The board, on January 28, 1932, filed its opinion on the appeal by the defendant. The board found that the referee erred in awarding compensation for the loss of claimant's leg for industrial purposes, and ordered a further hearing for that and other reasons set forth in the opinion. The record was remanded to Referee Lutz for rehearing.

On October 5, 1932, the referee found that the claimant's disability, as a result of the accidental injury on July 15, 1929, was total, and awarded compensation for total disability, at the rate of $ 15 per week, beginning August 19, 1929, with interest on any sums due under the award. The defendant again appealed from the referee's findings of fact and conclusions of law; where-upon the board vacated and set aside the adjudication of the referee, and substituted its own findings and conclusions in its opinion dated February 23, 1933. The board made an award that the defendant pay to the claimant the sum of $ 11.87 per week, beginning as of July 23, 1929, less the sum of $ 57.86 previously paid, and less the sum of $ 27 received by the claimant as wages from September 3 to September 15, 1929. The board found that the average weekly wage, appearing in the original agreement, of $ 23.37 was an error, and modified the agreement on the basis of a wage rate of $ 18.26 per week.

The defendant appealed to the court of common pleas, which, on November 18, 1933, reversed the board, holding that the award made by the board did not state...