Appeal, No. 65, Oct. T., 1959, from judgment of Court of Common Pleas of Franklin County, September 18, 1958, Misc. Docket Vol. T, page 127, in case of Merle R. Shoop v. Chambersburg Baking Company et al. Judgment reversed.
Edward C. First, Jr., with him McNees, Wallace & Nurick, for appellant.
Daniel W. Long, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 189 Pa. Super. Page 21]
On July 19, 1938, Merle R. Shoop, an employe of the Chambersburg Baking Company, was cleaning a
[ 189 Pa. Super. Page 22]
large dough mixer. He accidentally struck the starter switch and was pulled into the moving machinery. As a result, both of his legs were severely mangled requiring amputation at mid-thigh. On August 3, 1938 a compensation agreement was executed which provided for compensation at the rate of $12.00 per week under Section 306(a) of The Pennsylvania Workmen's Compensation Act.*fn1 Payments were made in accordance with this agreement for a period of 500 weeks. Thereafter, in accordance with the terms of the amendment which was in effect on the date of the accident,*fn2 payments were continued at the rate of $30.00 per month. On December 3, 1956, the employer presented a petition for termination on the ground that Shoop was no longer totally and permanently disabled. The Referee dismissed the petition and ordered the monthly payments continued. The decision of the Referee was affirmed by the Board. The court below sustained the employer's exceptions, and entered judgment in its favor. Shoop has appealed.
The record discloses that, following the accident, appellant worked at various times as a baby sitter, making bookracks in a welfare shop, repairing watches, and as a fire-control instrument mechanic. He subsequently moved to California and, on October 5, 1954, secured employment at the Travis Air Force Base as an instrument installer and overhauler at an average weekly wage of $85.20. In performing his duties, appellant uses artificial legs, presently requiring replacement at a cost of $850.00. He drives an automobile requiring special equipment, one item of which is power units for the brakes which cost $465.00. The employer's position, sustained by the court below, is that, since
[ 189 Pa. Super. Page 23]
appellant is now gainfully employed and earning wages exceeding those earned at the time of the accident, he is no longer totally and permanently disabled.
Appellant's right to compensation is contractual, and must be determined by the provisions of the statute which were in effect at the time the accident occurred. Cf. Mavroulias v. Mugiana, 155 Pa. Superior Ct. 573, 39 A.2d 263; Schrecengost v. Heilman Trucking Co., 174 Pa. Superior Ct. 299, 101 A.2d 417. Section 306(a) at that time provided as follows: "... Should total disability become permanent, then, in addition to the compensation provided for 500 weeks, and beginning at the expiration of the 500 weeks, the sum of thirty dollars per month shall be payable during such permanent total disability prior to death... Nothing in this clause shall require payment of compensation after disability shall cease". Section 306(c) at that time provided as follows: "... Unless the board ...