Strait v. Gulf Oil Co.

• Decision Date: 24 June 1940
• Docket Number: 218-1940
• Citation: 14 A.2d 168,140 Pa.Super. 464
• Parties: Strait v. Gulf Oil Company et al., Appellants
• Court: Pennsylvania Superior Court

14 A.2d 168

140 Pa.Super. 464

Strait v. Gulf Oil Company et al., Appellants

No. 218-1940

Superior Court of Pennsylvania

June 24, 1940

Argued April 10, 1940.

Appeal from judgment of C. P. Allegheny Co., Oct. T., 1939, No 1075, in case of Harry W. Strait v. Gulf Oil Company et al.

Appeal by defendants from award of Workmen's Compensation Board.

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

Appeal dismissed and judgment entered for claimant, before Patterson, Smith and Musmanno, JJ., opinion by Musmanno, J Defendants appealed.

Error assigned was order directing entry of judgment.

Judgment reversed.

John R Bredin, with him Dalzell, McFall & Pringle, for appellants.

William A. Challener, Jr., with him William A. Challener, of Challener & Challener, for appellee.

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

OPINION

Parker, J.

This appeal in a workmen's compensation case is principally concerned with a question of procedure. Claimant met with an accident on October 17, 1936, and a hearing on a claim petition was held by a referee on August 20, 1937. The referee, on September 29, 1937, awarded him compensation for total disability for periods aggregating 17 2/7 weeks prior to August 1, 1937, and for total disability for an indefinite period beginning August 18, 1937. On appeal the board remanded the record to the referee with directions to him to appoint an impartial specialist and take his testimony. This was done and the referee, on November 30, 1938, made the same order as he had made in the first instance. On appeal the board again remanded the record to the referee but later reconsidered its action and directed that the referee return the record to the board. On June 29, 1939, the board affirmed the award made by the referee.

On appeal to a court of common pleas the award was affirmed and judgment was entered December 9, 1939, for the total sum of $ 6,500, subject to certain limitations provided in the Workmen's Compensation Act, and then the court proceeded to liquidate the amount due and payable by defendant as of November 15, 1939, saying: "The total payments now due on this award, computed to and including November 15, 1939, are as follows: [Computation] $ 2,172.53." On December 2, 1939, the defendant presented to the board a petition for termination, alleging that disability ceased on September 15, 1937, and that claimant had returned to work for the same employer. The objection of the defendant to the liquidation of the judgment by the court of common pleas arises from the fact that it may be compelled to pay compensation for a period after the disability is alleged to have ceased and before it has had an opportunity to establish its claim that disability had terminated. When the board returned the record to the referee it was only for the purpose of calling an impartial expert to determine whether there was a causal connection between accident and disability. No opportunity was afforded to show a change in disability.

" The rule that an award is final unless appealed from (Putt v. Laher Ice Cream Co., 105 Pa.Super. 536, 539; 161 A. 622; Roeschen v. Dietrich, 107 Pa.Super. 298, 303, 163 A. 63) is limited in its application to the period included up to the date of the award. The law contemplates changes in awards thereafter corresponding to changes in the condition of disability of the claimant, and the award has no conclusive effect beyond the date of its entry. Of course, the burden is on the one averring a change to prove it": Kilgore v. State Workmen's Ins., 127 Pa.Super. 213, 219, 193 A. 294. There has been an appeal here and the parties are not concluded in any respect. Also, see McGee v. Y. & O. Coal Co., 121 Pa.Super. 85, 93, 182 A. 773. The statute does not contemplate that the court of common pleas in entering judgment shall liquidate the amount due on that date.

This is sufficient to show that the court should not have liquidated the amount due on November 15, 1939, as it did in fact do. If the court below in entering judgment had followed the procedure outlined in Graham v. Hillman Coal & Coke Co., 122 Pa.Super. 579, 586, 186 A. 400, and stopped there, this reason could not have been assigned, but there are further difficulties encountered when we examine the statute and consider the action of the board.

Section 413 of the Workmen's Compensation Act (77 PS § 772) provides that the board or referee appointed by the board may, within certain limitations, "modify, reinstate suspend, or terminate an original or supplemental agreement or an award .... upon proof that the disability of an injured employe has increased, decreased,...