George B. Stegenga, Louis R. Oppenheim, Washington, for appellee.
Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright and Woodside, JJ.
[ 176 Pa. Super. Page 129]
This is an appeal by he defendant and the insurance carrier from the order and judgment of the lower court, affirming the Workmen's Compensation Board in its order reinstating the compensation agreement and ordering the defendant and the insurance carrier to pay claimant compensation thereunder.
Claimant was injured in the course of his employment on July 10, 1942. On August 19, 1942, he entered into an open agreement which provided for payment of compensation 'at the rate of $18.00 per week, beginning 7/18/42 * * * and subject to modification or termination by Supplemental Agreement, Order of the
[ 176 Pa. Super. Page 130]
Workmen's Compensation Board or Final Receipt.' Claimant returned to work on November 19, 1942, and executed a final receipt. On September 9, 1943, claimant filed a petition to set aside the final receipt alleging mistake of fact. The referree made an order on May 16, 1944, setting aside the final receipt and suspending payment of compensation beginning November 19, 1942 until such time as claimant's disability was reflected in a loss of earnings. On June 17, 1946, claimant filed a reinstatement petition averring that since November 25, 1945, he had been totally and permanently disabled. On January 15, 1947, the parties stipulated that during the period from November 29, 1945 to March 25, 1946, the claimant was not working but was able to do so and that his disability during that period was fifty percent; it was also agreed that claimant still suffered some partial disability but had been earning more than he did at the date of the accident. On January 21, 1947, the referee entered an order which provided that payments of compensation under the workmen's compensation agreement be reinstated and modified to provide for fifty per cent partial disability at the rate of $9.80 per week from November 29, 1945 to March 25, 1946; further, beginning March 26, 1946, payments of compensation to claimant were suspended until such time as claimant's disability was reflected in loss of earnings, not to exceed, however, the limitations made and provided by the Workmen's Compensation Act. On August 22, 1949, sixteen months after the end of the three hundred week period and two years and seven months after the most recent payment of compensation, the petition out of which this case arose was filed. In it claimant asked that the award which was suspended on May 16, 1944, be reinstated. The claimant averred that on August 5, 1949, total disability recurred.
[ 176 Pa. Super. Page 131]
Based on a finding that any disability claimant suffered is not due to or associated with the accident which occurred on July 10, 1942, but is due to natural causes, the referee entered an order dismissing claimant's petition. Claimant appealed. Defendant also appealed because the referee had failed to find that claimant's petition was barred by the Statute of Limitations of the Compensation Act. The Workmen's Compensation Board sustained claimant's appeal and dismissed defendant's appeal. It also reversed the decision of the referee and reinstated payment of workmen's compensation for total disability under the original compensation agreement as of August 5, 1949. The award was based upon the board's substituted finding of fact that claimant became totally disabled on August 5, 1949. On appeal the findings and order of the board were sustained by the lower court.
Claimant, while driving a truck for his employer on July 10, 1942, was involved in an accident in which he suffered fractures of his pelvis, left hip and left leg. On November 19, 1942, he returned to work and worked steadily for defendant until August 5, 1949, except for two periods: the first, from November 29, 1945 to March 26, 1946, when the plant was on strike, and the second, from June 1949 to July 25, 1949, when he was disabled by a second and separate injury from which he recovered. Claimant was laid off on August 5, 1949. When claimant returned to work in November 1942 his first job was on he assembly bench assembling axles. Claimant received the same pay as nine other men who did the same kind of work. After six months he was transferred to the tool room. He earned as much or more than he did before he was injured. In the tool room he operated a Cincinnati grinder. He was paid the same as the other grinders. He could do this job while sitting. In the present hearing the
[ 176 Pa. Super. Page 132]
doctor testified that he was disabled for laboring work that involves long periods of standing; that there is a shortening in the left leg and a limitation of motion and wasting of muscles around the left hip; that he can do any job where he can sit and he has full use of his hands and of his right but not his left foot; that except for the weakness in the muscles from the pelvis ...