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COHEN v. DOUBLEDAY & COMPANY (11/11/59)

November 11, 1959

COHEN, APPELLANT,
v.
DOUBLEDAY & COMPANY, INC.



Appeal, No. 412, Oct. T., 1959, from order of Court of Common Pleas of Montgomery County, April T., 1958, No. 171, in case of Joseph J. Cohen v. Doubleday & Company, Inc. et al. Order affirmed.

COUNSEL

Maurice S. Strauss, for appellant.

Frank R. Ambler, for appellee.

Before Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., and Hirt, J., absent).

Author: Woodside

[ 191 Pa. Super. Page 108]

OPINION BY WOODSIDE, J.

The only question in this workmen's compensation case is whether the claimant was entitled to payments for total or partial disability while he was receiving commissions for services rendered to his employer during a period from approximately May 1953 to September 1956. The referee found he was partially disabled during this period and allowed him $21.25 per week compensation. The board found he was totally disabled and allowed $30 per week compensation. The Court of Common Pleas of Montgomery County reversed the board and remitted the record.

The claimant, Joseph J. Cohen, was employed by Doubleday & Company, Inc. to sell books on commission, and received average weekly wages of $281.85. On June 23, 1952, while operating his automobile in the course of his employment, the claimant suffered a fractured skull in a head-on collision.

[ 191 Pa. Super. Page 109]

Under an agreement, the claimant was paid compensation for total disability to February 23, 1953. The defendant filed a petition to terminate as of February 24, 1953. The claimant filed an answer denying that he had recovered, and alleging that he suffered permanent partial disability. Because of a third party settlement the hearing on this petition was postponed, and no further compensation was paid by the insurance carrier pending exhaustion of the third party settlement credits. On November 15, 1956, the claimant filed a petition for review of the agreement alleging permanent total disability since the accident and exhaustion of the third party settlement credits.

The defendant presented no evidence at the hearing. It was established from the claimant's medical testimony, that he suffered a permanent brain injury which caused "a defect in reasoning and a very superficial insight into his predicament, social economics and his own mental state." It was clear from his own testimony, and that of his wife, that his memory and thinking processes were seriously deficient.

When asked about the claimant's ability to work, his physician testified, "If he was assigned to a sitting - or to a certain job which would just require repetitive movements - he can write; he can add numbers. He can complete an act which is directed or directive, by telling him to do something; but there is no assurance that he would remain on that assignment for the eight hours... He is not reliable."

In May of 1953, the claimant returned to his employment. Because of his mental condition he was unable to perform the work alone and his wife accompanied him wherever he went, and materially assisted him in selling the books. Although he required assistance, he was employed and did ...


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