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CRAIN v. SMALL TUBE PRODUCTS (03/19/63)

March 19, 1963

CRAIN, APPELLANT,
v.
SMALL TUBE PRODUCTS, INC.



Appeal, No. 387, Oct. T., 1962, from order of Court of Common Pleas of Blair County, June T., 1961, No. 133, in case of Robert S. Crain v. Small Tube Products. Inc. et al. Order affirmed.

COUNSEL

Richard S. Oyler, with him Harry B. Hogemyer, for appellant.

Robert C. Haberstroh, for appellees.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, and Montgomery, JJ. (flood, J., absent).

Author: Montgomery

[ 200 Pa. Super. Page 427]

OPINION BY MONTGOMERY, J.

As a result of an injury to his back occurring on October 30, 1958, in the course of his employment, appellant-claimant and his employer, Small Tube Products, Inc. (appellee), entered into an open agreement

[ 200 Pa. Super. Page 428]

    for compensation on the basis of total disability. On March 17, 1959, a supplemental agreement was executed by them suspending payments for the reason that claimant had returned to work for the same employer at wages equal to or in excess of those earned at the time of the accident, "although he still suffered 20% partial disability."

On March 17, 1960, claimant petitioned the board for reinstatement of payments for the 20% disability acknowledged in the supplemental agreement, and for a recalculation of his wages for the reason that he had "concurrent employment known to Small Tube which was not taken into consideration in determining my average weekly wage." The recalculation subject is not before us on this appeal.

The only matter now before us is the refusal of the board to reinstate payments on account of the 20% disability. Referee Diehl, who heard the petition, concluded payments should be reinstated. However, on appeal by the employer, the board disallowed the reinstatement and the lower court affirmed the action of the board.

The order of the board was based on a finding "That although claimant's employment with defendant terminated on October 6, 1959, he failed to prove that his dismissal was due to any disability resulting from his accident of October 30, 1958."

The following provision found in section 413 of The Pennsylvania Workmen's Compensation Act, as amended by the Act of February 28, 1956, P.L. 1120, ยง 1, 77 P.S. 772(PP), is applicable to the present situation, "And provided further, That where compensation has been suspended because the employe's earnings are equal to or in excess of his wages prior to the accident that payments under the agreement or award may be ...


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