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HARRIS v. NO. 1 CONTRACTING CORPORATION DELAWARE ET AL. (11/13/69)

decided: November 13, 1969.

HARRIS
v.
NO. 1 CONTRACTING CORPORATION OF DELAWARE ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas of Luzerne County, July T., 1968, No. 1630, in case of Nelson C. Harris v. No. 1 Contracting Corporation of Delaware et al.

COUNSEL

Penrose Hertzler, for appellants.

Richard A. Kane, with him R. Lowery, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J. Montgomery, J., concurs in this result.

Author: Cercone

[ 215 Pa. Super. Page 525]

This case is before us on appeal from a decision of the Common Pleas Court of Luzerne County reversing the Workmen's Compensation Board's decision to remand the case to the Referee.

On August 14, 1964 the claimant fractured his first and second ribs and fractured his seventh and eighth dorsal vertebrae by reason of a fall from a truck crane during the course of his employment. Claimant and

[ 215 Pa. Super. Page 526]

    defendant entered into a compensation agreement on September 11, 1964 under the terms of which claimant was paid compensation of $47.50 weekly, beginning August 15, 1964. Claimant returned to work on March 10, 1965 and worked until June 21, 1965. Thereafter, he again received payments under the compensation agreement of $47.50 weekly from June 22, 1965 to July 29, 1965. The defendant then filed a Petition to Terminate, alleging that the claimant was able to return to work on July 30, 1965. The Referee, however, found claimant totally disabled and ordered compensation to continue at the rate of $47.50 per week beginning July 30, 1965.

On appeal, the Board stated: "Without more, we can conclude that this claimant is a nondescript and affirm the Referee's continuance of total disability. Nevertheless because of the alleged diminution of disability, coupled with the claimant's obvious ability to do some type of work, if free of heavy exertion, we think defendant ought to be afforded an opportunity to comply with the requirements of Petrone v. Moffat Coal Company, 427 Pa. 5. If claimant is able to do any kind of work, it ought to be specified. The actual opportunity to claimant for said work will determine the extent to which he is entitled to disability benefits, if any.

" Accordingly, the Referee's determination shall be vacated, and the case remanded for additional evidence, consistent with this opinion."

The claimant then appealed to the Court of Common Pleas of Luzerne County. That court reversed the action of the Workmen's Compensation Board and entered judgment for claimant. It said that "it would be inane to return the case for further hearing to determine whether light work of a general nature was in fact available, since the ...


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