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SCOTT v. C. E. POWELL COAL COMPANY. (12/01/60)

December 1, 1960

SCOTT, APPELLANT,
v.
C. E. POWELL COAL COMPANY.



Appeal, No. 199, March T., 1960, from order of Court of Common Pleas of Cambria County, Dec. T., 1958, No. 350, in case of Sherman George Scott, Jr. v. C. E. Powell Coal Company. Order affirmed.

COUNSEL

Fremont J. McKenrick, with him McKenrick and McKenrick, for appellant.

Robert W. Smith, Jr., with him Smith, Best and Horn, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Cohen

[ 402 Pa. Page 74]

OPINION BY MR. JUSTICE COHEN.

This is an appeal from the order of the Court of Common Pleas of Cambria County sustaining appellee's preliminary objections and dismissing appellant's complaint.

On October 4, 1956, Sherman George Scott, Jr., the plaintiff-appellant, who was employed as a laborer by the C. E. Powell Coal Company, defendant-appellee, was struck on the back of his head by a rock after he had set off a blast of dynamite in appellee's open pit mine. As a result, appellant's skull was fractured and his senses of taste and smell were destroyed. Appellant received workmen's compensation payments for eight weeks of total disability until he was able to return to work.

The complaint in trespass claims damages for appellant's resultant permanent loss of the senses of taste and smell, but does not include any claim for medical expenses or loss of earnings. Appellee filed preliminary objections asserting that appellant's exclusive remedy for his accidental injury was to proceed under the provisions of the Workmen's Compensation Act of June 2, 1915, P.L. 736, Article III, Section 301a, as amended, 77 PS ยง 431. The court below sustained the objections and dismissed the complaint. This appeal followed.

In his statement of the question involved, appellant asks us to determine whether an employee who, while in the course of his employment suffers an accident resulting in the permanent loss of the senses of taste and smell, and for which loss no compensation is payable under the Workmen's Compensation Act, can recover from his employer for said loss in an action of trespass based on his employer's negligence? This statement of the question involved is patently incorrect, for it requires us to assume that under the Workmen's

[ 402 Pa. Page 75]

Compensation Act no compensation is payable for the resultant permanent loss of the senses of taste and smell. The permanent loss of the senses of taste and smell resulting from an accident while in the course of employment would be a permanent partial disability and compensable under Section 306(b) of the Workmen's Compensation Act.

Prior to the amendment of the Act in 1939, a resulting permanent partial disability such as appellant's loss would have been compensated under the Workmen's Compensation Act as a loss of "earning power." From 1915 to 1939 "earning power" was determined not only by taking into account the actual amount of wages an employee received following an injury, but also by considering the other elements affecting his earning power. These include the character and extent of his physical injury or disability; his productivity or efficiency in the same employment as compared to what it was immediately prior to the injury; and his ability to earn wages in any kind of employment for which he was fitted. The earnings of a claimant after an accident, as compared with his former earnings, were but evidence of a change of earning power and were not conclusive of the ...


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