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DOUGHER v. LUMMUS COMPANY ET AL. (11/12/57)

November 12, 1957

DOUGHER
v.
LUMMUS COMPANY ET AL., APPELLANTS.



Appeal, No. 2, Feb. T., 1958, from judgment of Court of Common Pleas of Wayne County, June T., 1956, No. 28, in case of Andy P. Dougher v. The Lummus Company and Liberty Mutual Insurance Company. Judgment reversed and record remanded.

COUNSEL

George D. Sheehan, for appellants.

Milford J. Meyer, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Watkins

[ 184 Pa. Super. Page 617]

OPINION BY WATKINS, J.

This is an appeal by the appellant employer and insurance carrier, from a judgment entered in favor of appellee employee in a workmen's compensation case.

The appellee was injured in an accident on June 10, 1953, in the course of his employment as a metal chipper. His injury was described as ruptured discs. A Workmen's Compensation Agreement was executed by the parties on September 9, 1953. Under the agreement the appellee was paid $30 a week from June 21, 1953 to January 10, 1954.

A Supplemental Agreement was executed on January 13, 1954 which set forth that appellee returned to work on January 11, 1954 at a rate of pay greater than that at the time of the injury of June 10, 1953. The agreement further provided, "Compensation weekly indemnity benefits will be suspended therefore until such time as disability should recur resulting in a loss of earning power as a result of the accident of June 10, 1953."

On March 3, 1955 the appellee petitioned for reinstatement of compensation and made the following averment: "And as ground for this petition I allege that subsequent to the said January 18, 1954 my disability

[ 184 Pa. Super. Page 618]

    recurred in the following manner and to the following extent; I am unable to work and in need of medical treatment." The referee found that the disability as a result of the accident recurred, and awarded benefits. The appellants appealed to the board which found that the appellee's petition was filed too late and was barred by Section 413 of The Pennsylvania Workmen's Compensation Law. The action of the board was appealed to the Court of Common Pleas of Wayne County. The lower court reversed the board and entered judgment for the appellee in accordance with the order of the referee. Hence this appeal.

The appellants contend that since more than one year elapsed from the last payment of benefits to the time of filing the petition for reinstatement of compensation, the appellee is barred by the provisions of Section 413 of the Act of June 21, 1939, P.L. 520, 77 PS ยง 772, ...


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