Shoop v. Chambersburg Baking Co.

• Decision Date: 18 March 1959
• Citation: 149 A.2d 179,189 Pa.Super. 20
• Parties: Merle R. SHOOP, Appellant, v. CHAMBERSBURG BAKING COMPANY, Defendant, and Pennsylvania Manufacturers' Association Casualty Insurance Company, Insurance Carrier and Intervening Defendant.
• Court: Pennsylvania Superior Court

Page 179

149 A.2d 179

189 Pa.Super. 20

Merle R. SHOOP, Appellant, v. CHAMBERSBURG BAKING COMPANY, Defendant, and Pennsylvania

Manufacturers' Association Casualty Insurance

Company, Insurance Carrier and

Intervening Defendant.

Superior Court of Pennsylvania.

March 18, 1959.

Application for Allocatur Denied June 1, 1959.

Edward C. First, Jr., McNees, Wallace & Nurick, Harrisburg, for appellant.

Daniel W. Long, Chambersburg, for appellee.

Before RHODES, P. J. and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

WRIGHT, Judge.

On July 19, 1938, Merle R. Shoop, an employe of the Chambersburg Baking Company, was cleaning a large dough mixer. He accidentally struck the starter switch and was pulled into the moving machinery. As a result, both of his legs were severely mangled requiring amputation at midthigh. On August 3, 1938 a compensation agreement was executed which provided for compensation at the rate of $12 per week under Section 306(a) of The Pennsylvania Workmen's Compensation Act. ¹ Payments were made in accordance with this agreement for a period of 500 weeks. Therefore, in accordance with the terms of the amendment which was in effect on the date of the accident ², payments were continued at the rate of $30 per month. On December 3, 1956, the employer presented a petition for termination on the ground that Shoop was no longer totally and permanently disabled. The Referee dismissed the petition and ordered the monthly payments continued. The decision of the Referee was affirmed by the Board. The court below sustained the employer's exceptions, and entered judgment in its favor. Shoop has appealed.

The record discloses that, following the accident, appellant worked at various times as a baby sitter, making book racks in a welfare shop, repairing watches, and as a fire-control instrument mechanic. He subsequently moved to California and, on October 5, 1954, secured employment at the Travis Air Force Base as an instrument installer and overhauler at an average weekly wage of $85.20. In performing his duties, appellant uses artificial legs, presently requiring replacement at a cost of $850. He drives an automobile requiring special equipment, one item of which is power units for the brakes which cost $465. The employer's position, sustained by the court below, is that, since appellant is now gainfully employed and earning wages exceeding those earned at the time of the accident, he is no longer totally and permanently disabled.

Appellant's right to compensation is contractual, and must be determined by the provisions of the statute which were in effect at the time the accident occurred. Cf. Mavroulias v. Mugiana, 155 Pa.Super. 573, 39 A.2d 263; Schrecengost v. O. K. Heilman Trucking Co., 174 Pa.Super. 299, 101 A.2d 417. Section 306(a) at that time provided as follows: '* * * Should total disability become permanent, then, in addition to the compensation provided for five hundred weeks, and beginning at the expiration of the five hundred weeks, the sum of thirty dollars per month shall be payable during such permanent total disability prior to death * * *. Nothing in this clause shall require payment of compensation after disability shall cease'. Section 306(c) at that time provided as follows: '* * * Unless the board shall otherwise determine, the loss of both hands or both arms or both feet or both legs or both eyes shall constitute permanent total disability, to be compensated according to the provisions of clause (a). * * *'

Our decisions have consistently adhered to the proposition that compensation for specific losses under Section 306 (c) is governed by different principles than compensation for total and partial disability under Sections 306(a) and 306(b). For all injuries, except those which fall within Section 306(c), the statute provides compensation according to the nature of the resulting disability. For the class of injuries within the purview of Section 306(c) the statute provides compensation according to the nature of the injury, and the degree to disability which may result therefrom is immaterial. See Lente v. Luci, 275 Pa. 217, 119 a. 132, 24 A.L.R. 1462; Ciotti v. Jarecki Mfg. Co., 128 Pa.Super. 233, 193 A. 323. The economic consequence of a specific loss under Section 306(c) has no bearing on the right to compensation for that injury: Kerwin v. American Railway Express Co., 273 Pa. 134, 116 A. 655. Section 306(c) contemplates payment for the permanent injuries specified without considering, but including, any disability, whether total, partial, or none at all: Nolan v. Hake, 178 Pa.Super. 593, 115 A.2d 780; Camizzi v. E. T. Fraim Lock Co., 151 Pa. Super. 3, 29 A.2d 425; Parks v. Susquehanna Collieries Co., 149 Pa.Super. 535, 27 A.2d 481; Croll v. Miller, 133 Pa.Super. 448, 2 A.2d 527; Savolaine v. Matthew Leivo & Sons, 131 Pa.Super. 508, 200 A. 243; Kessler v. North Side Packing Co., 122 Pa.Super. 565, 186 A. 404.

The court below drew a distinction between physical and economic disability, and took the position that the term permanent total disability in Section 306(c) meant 'total permanent physical disability with economic consequences'. Apparently recognizing that, regardless of economic consequences, the loss of both legs was...