Appeal from the judgment of the Court of Common Pleas of Erie County, No. 1002-A-1970, in the case of Nicholas DeAngelis v. Raymond J. Scott and Statesman Insurance Company. Appeal transferred February 26, 1971, to the Commonwealth Court of Pennsylvania from the Pennsylvania Superior Court.
John A. Spaeder, with him Marsh, Spaeder, Baur, Spaeder & Schaaf, for appellants.
Richard H. Scobell, for appellee.
Judges Crumlish, Jr., Manderino and Rogers, sitting as a panel of three. Opinion by Judge Rogers.
The appellee, Nicholas DeAngelis, and the appellants, Raymond J. Scott and Statesman Insurance Company, respectively employe, employer, and insurer of the employer, entered into the written agreement for compensation provided for by Article IV, Section 407 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, Article IV, Section 407, as amended, 77 P.S. 731. Therein the parties agreed that the appellee while in the employ of the appellant Scott sustained disabling injuries and that he should be paid compensation and medical and hospital expenses. Some months later the employer filed a petition to terminate the agreement on the ground that appellee's disability had terminated. Appellee duly filed an answer denying termination of disability. While hearings on this petition were being conducted, the employer filed a petition to set aside the agreement averring that appellee's injury was incurred at some unspecified time or place other than in the course of employment and that the agreement for compensation was entered into by the appellants in reliance upon unspecified misrepresentations by the appellee. No answer to this petition was filed.
At the hearings on the two petitions, appellee testified that he slipped while carrying lumber; that being in pain on the following day he sought medical assistance; that he was operated on for the removal of discs; that he continued to suffer pain: and that as a result of his injury and its effect he had been able to work only sporadically and part time as a substitute taxicab driver, earning during the year prior to the last hearing an average of about $11.00 per week. It was further shown that the appellee is unable to read or write, has no trade, and has no capacity for other than the hard labor he was engaged in prior to the accident.
The referee concluded that the appellee was disabled to the extent of 15 per cent and awarded compensation of $8.92 per week. On appeal the Workmen's Compensation Board agreed that appellee was partially disabled but concluded that his loss of earning power should be measured by the difference between his actual earnings before and after the accident and awarded him the statutory maximum of $37.50 per week.
The Court of Common Pleas of Erie County after a careful review of the record and by an able opinion of President Judge Carney affirmed the Board. On this appeal, the employer and his carrier raise the same issues advanced below.
They first contend that the compensation agreement should be set aside because, no answer having been filed to their petition, appellee must be deemed to have admitted that the accident occurred at a time and place other than in the course of his employment. They claim support in Section 416 of the Act, 77 P.S. 821, which reads:
"Within twenty days after a copy of any petition has been served upon any adverse party, he may file with the secretary of the board if the petition has been directed to be heard by the board, or with the referee if the petition has been assigned to a referee, an answer in the form prescribed by the board.
"Every fact alleged in a claim petition not specifically denied by an answer so filed by an adverse party shall be deemed to be admitted by him. But the failure of any adverse party or of all of them to deny a fact so alleged shall not preclude the board or referee before whom the petition is heard ...