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April 13, 1951


Appeal, No. 53, April T., 1951, from order of County Court of Allegheny County, 1950, No. A 916, in case of Mario Conti v. Butler Consolidated Coal Company, Defendant, and Eureka Casualty Company, Insurance Carrier.


Paul Kern Hirsch, with him Karl E. Weise and Hirsch & Weise, for appellants.

Clair V. Duff, with him Robert A. Doyle and Duff, Stockdale & Doyle, for appellee.

Before Rhodes, P. J., Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Hirt

Opinion BY HIRT, J., July 19, 1951:

[169 Pa. Super. 276 Page 277]

Claimant, following an injury from accident in the course of his employment, entered into an open agreement with the defendant providing compensation for total disability. On March 16, 1949, about eight months later, defendant petitioned for a termination of the agreement averring that claimant's disability from the accident had ended. After hearing, the referee on appropriate findings ordered the termination of all compensation as of September 14, 1948. From that order claimant appealed and subsequently petitioned the Board for a rehearing. After argument the Board denied claimant's petition for a rehearing and affirmed the findings of fact, conclusions of law and order of the Referee. There was ample competent medical evidence to support the finding of the Referee, affirmed by the Board, to this effect: "that the disability of the Claimant as a result of the accidental injury of July 20, 1948 ceased and terminated on September 1948 on which date he was able to return to his regular employment without any loss of earnings." The above finding therefore was conclusive. Holliday v. McGraw & Co. et al., 157 Pa. Superior Ct. 447, 43 A.2d 610.

[169 Pa. Super. 276 Page 278]

Conceding this, the lower court nevertheless remanded the proceeding to the Board for reconsideraton of claimant's application for a rehearing on the sole ground that the record does not, by specific additional findings, indicate the reasons for the Board's dismissal of claimant's petition. In this order there is clear error as a review of the undisputed facts will demonstrate.

Claimant was struck by falling coal. The resulting injuries were described in the compensation agreement as "bruised right shoulder and laceration of shin of right leg." He was treated by a competent physician who, according to his testimony before the Referee, discharged him on September 13, 1948 as able to resume his regular employment in defendant's mine. At that time claimant still complained of some pain in his shoulder but in the opinion of the above medical witness it was not "a disabling pain" affecting his earning power. Beginning with September 14, 1948 claimant worked steadily in defendant's mine every day that the mine was in operation until September 1949 when a stike closed the mine for a time. During the period claimant worked a number of full weeks. Since the settlement of the strike the mine has been in operation about three days each week and claimant has worked every day that work was available.

The court was wrong in remanding this case to the Board for recondsideration of claimant's petition for a rehearing. The findings of fact are explicit and the lower court properly found that they were sustained by competent evidence and that "the employer had successfully carried the burden of proving that claimant's disability from accident had ended." The Board might have stated its reasons for refusing a rehearing but it was not obliged to do so since it is obvious that the order rests upon claimant's previous failure to prove that he was still disabled after having been afforded

[169 Pa. Super. 276 Page 279]

    every reasonable opportunity to do so. His answer to the petition for termination filed on March 31, 1949, alleged that he still suffered partial disability from the accident. The first hearing on the petition was set for September 17, 1949 and in the meantime he had almost six months in which to prepare his defense. Nevertheless on the day of the hearing he produced no witnesses and at his request the hearing was continued to October 6, 1949 and again to November 10, 1949. It was conceded at the argument that claimant was represented by competent counsel at the October hearing and that his counsel then withdrew from the case because medical witnesses were not then available to substantiate claimant's defense. Testimony was taken at the November hearing, attended by claimant without counsel, and the referee on November 15 1949 ordered a termination of compensation payments. It was not until the following January ...

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