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GAYER v. QUAKER HAIR GOODS COMPANY (04/11/72)

decided: April 11, 1972.

GAYER
v.
QUAKER HAIR GOODS COMPANY, ET AL.



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of In The Matter of Israel Gayer v. Quaker Hair Goods Company and Liberty Mutual Insurance Co., No. 412, May Term, 1971.

COUNSEL

Sheldon L. Albert, with him John R. Padova and Solo, Bergman, Trommer, Padova & Albert, for appellant.

Roger B. Wood, with him Joseph R. Thompson, for appellees.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 5 Pa. Commw. Page 135]

On June 2, 1965, claimant, Israel Gayer, president, board member and owner of 42% of the stock of the defendant, Quaker Hair Goods Company (Quaker), a family corporation, fell while in the course of his employment. He sustained a serious injury to his ankle resulting in ankylosis of the same. It is not disputed that he sustained a permanent partial disability. The issue here is whether that disability resulted in a loss of earning power.

A compensation agreement, dated July 1, 1965, was entered into by the parties and approved by the Bureau of Workmen's Compensation on October 22, 1965. This agreement indicates that Israel Gayer (Gayer) was receiving a salary of $40,000 a year at the time of the accident. It also contained the following statement: "Disability began 6/3/65 instead of 6/2/65 as stated on accident report. It is admitted by the parties to this agreement that the claimant is receiving full wages during the period of disability and the compensation rate as shown is included in the payment of his weekly wage. Claimant suffered no injury other than stated above."

This language is deemed to have as its purpose the expression of accord by the parties that compensation be suspended because claimant's injuries were not reflected, as of July 1, 1965, in a loss of earnings. Thereafter, on July 5, 1966, claimant petitioned for modification, alleging that "[t]he inadequate healing process and residual difficulty existing in claimant's right leg has resulted in a permanent partial disability impairing his earning capacity."

After a series of hearings, the Workmen's Compensation Referee made an award of compensation benefits

[ 5 Pa. Commw. Page 136]

    to Gayer. Quaker appealed to the Workmen's Compensation Board (Board) which reversed the Referee and sustained the appeal. Gayer then appealed to the Court of Common Pleas of Philadelphia County which sustained the decision of the Board. Gayer has now appealed to this Court from the decision of the court below.

Our scope of review, since the decision of the Board was against the appellant-claimant, is whether the Board's findings of fact are consistent with each other and with its conclusions of law and order and can be sustained without a capricious disregard of the evidence. Frombach v. United States Steel Corp., 2 Pa. Commonwealth Ct. 556, 279 A.2d 779 (1971); Bednar v. Westinghouse Electric Corporation, 194 Pa. Superior Ct. 10, 166 A.2d 305 (1960).

Here our review centers on whether the Board's third finding of fact can be sustained without a capricious disregard of the evidence. The Board found as a fact the following: "3. Any loss of earnings sustained by ...


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