27 A.2d 782 | Pa. Super. Ct. | 1942
Argued April 16, 1942.
The previous appeal in this case was disposed of in an opinion reported in
In its original opinion of July 14, 1938, the board concluded that: "It appearing to the Board that the claimant, Frank Artac, signed the final receipt under a mistake of fact and because of improper conduct on the part of the defendant, he is entitled to have the same set aside and Compensation Agreement No. 3,018,396 reinstated." It accordingly ordered the final receipt "be set aside and that the agreement be reinstated to provide for the payment of compensation as for partial disability." It also found claimant "suffered a fifty per cent partial physical disability which continued at the time of the hearing," that it would continue for an indefinite period in the future, but that claimant had failed to show the disability had caused a loss of earning power. It suspended payments of compensation until claimant could demonstrate a lack of earning capacity.
Defendant took no appeal from the order setting aside the final receipt. Claimant appealed on the ground that once having set aside the final receipt and having found that claimant still suffered some disability, the board was without power to suspend the payments. We sustained this contention and held that the burden of proving the extent of the loss of earning power was on defendant, not claimant. We said (p. 504):
"Upon the setting aside of final receipt on the ground of having been improperly obtained, and upon the reinstatement of the compensation agreement, the burden rested upon the defendant employer to prove that claimant's disability had temporarily ceased and that he no longer suffered a loss of earning power. The burden did not rest upon the claimant to show that he had not been restored to his full earning power. See Carson *452 v. Real Estate-Land T. T. Co.,
Strictly speaking, when a petition to set aside a final receipt is filed under Section 434 (Act of June 2, 1915, P.L. 736, as amended,
We think it apparent that the order setting aside the *453
final receipt was appealable (Keasbey's Trust Estate,
Upon the return of the record to the compensation authorities, no further testimony was taken. The board made new findings of fact, one of which was "That the claimant as a result of the accident of September 9, 1933, suffered from a fifty per cent partial disability which disability has been reflected in a fifty per cent loss of earning power beginning with September 24, 1934." It made an appropriate order for the payment of compensation.
The contention is there was no evidence to sustain the finding.
We shall first dispose of the contention that the amendment of 1939 (Act of June 21, 1939, P.L. 520, Section 1,
Prior to the accident, claimant earned $18.59 per week as a coal loader. After he returned, he was unable to perform this work because of his disability. Instead he worked at cleaning the road in the mine, at shot firing and other lighter forms of work. Yet he received $24.20 per week. But between the time of the accident and his return to work, the wages of coal miners had materially increased. It was shown that if he had been able to return to his original job as a loader, he would have earned double his original salary, or approximately $37 per week. This court has frequently said, in the absence of a statutory provision such as we now have in the Act of 1939, supra, proof that an injured workman earned more following his accident is not conclusive. See Weinstock v. United Cigar Stores Co. et al.,
Judgment is affirmed.