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LASICK v. CONSUMERS MINING COMPANY ET AL. (12/28/56)

December 28, 1956

LASICK
v.
CONSUMERS MINING COMPANY ET AL., APPELLANTS.



Appeal, No. 129, April T., 1956, from judgment of County Court of Allegheny County, 1955, No. A-1293, in case of Frank P. Lasick v. Consumers Mining Company et al. Judgment affirmed.

COUNSEL

Karl E. Weise, with him Hirsch & Weise, for appellants.

Samuel Krimsly, with him Anthony J. Martin, for appellee.

Before Rhodes, P.j., Hirt, Gunther, and Carr, JJ. (wright, Woodside, and Ervin, JJ., absent).

Author: Rhodes

[ 182 Pa. Super. Page 415]

OPINION BY RHODES, P.J.

This is an appeal by defendants from the judgment entered in favor of claimant in a workmen's compensation case.

Claimant was injured in the course of his employment on May 8, 1951. An open agreement was entered into under which claimant was paid compensation at the rate of $25 per week from May 15, 1951, to October 15, 1951. He returned to work although partially disabled on October 16, 1951; no final receipt was executed.

Defendants, on May 28, 1952, filed a petition to terminate compensation; and a hearing was held before a referee. It was there stipulated by the parties that claimant had returned to his regular employment on October 16, 1951, without loss of earnings; that the agreement be suspended as of that date; and that claimant has had a residual partial disability not reflected in his earnings since that time. The referee entered an order suspending compensation payments as of October 16, 1951.

On October 14, 1953, claimant filed a petition to reinstate compensation payments as disability, resulting from the accident of May 8, 1951, was then reflected from October 9, 1953, in a change of earnings. At the hearing before the referee which followed the presentation of claimant's petition, defendants moved to dismiss his petition for the reason that it had not been filed within one year of the last payment of compensation which was made on October 15, 1951 (Act of June 21, 1939, P.L. 520, § 413, 77 PS § 772). The referee refused to dismiss the petition, and made an award based upon a stipulation entered by the parties to the effect that at the time of the suspension claimant's disability was 10 per cent as the result of the accident,

[ 182 Pa. Super. Page 416]

    and that upon the entry of an award compensation be reinstated as of March 1, 1954, on the basis of claimant's wages at the time of the accident which would make the compensation rate $6.01 per week, within the limitations of the Act. The Workmen's Compensation Board affirmed the findings of fact, conclusions of law, and order of the referee; and on appeal by defendants to the County Court of Allegheny County the order of award was affirmed and judgment was entered in favor of claimant. Defendant employer and its insurance carrier thereupon appealed.

The question involved is whether claimant's petition, having been filed within the 300-week period, but more than a year after the last payment of compensation was barred by § 413*fn1 of the Act of June 21, 1939, P.L. 520, 77 PS § 772, revising and re-enacting The Workmen's Compensation Act of 1915. We are of the opinion ...


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