21 A.2d 450 | Pa. Super. Ct. | 1941
Argued April 17, 1941.
On June 11, 1935, claimant, in the course of his employment as a loader, sustained severe injuries when caught between two pit cars in defendant's mine. His right leg was crushed and amputation was necessary. A compensation agreement was entered into which recites the cause of the accident but does not describe the nature or extent of the injuries except to refer to the amputation of the leg between the knee and the ankle. By the agreement defendant assumed liability for compensation under section 306(c) of the Compensation Act,
This appeal raises two questions: (1) Is there sufficient substantial evidence of disability amounting to the loss of the use of the leg, separate and distinct from the disability attributable to the loss of the foot, and (2) was claimant's petition for review filed in time?
1. Claimant testified that his back was injured in the accident and two qualified medical witnesses testified that, though there were no external marks on the back, there was evidence of injury which accounted for severe pain across the small of the back and radiating through the back of the right thigh, extending downward from the level of the hip. Though the medical testimony as a whole is conflicting, there is competent testimony of claimant's physicians who examined him which meets the standards of Elonisv. Lytle Coal Co.,
The referee's findings in general are open to the criticism that in the main they are no more than a review of the medical testimony. But following a recital of this testimony the referee found "After a careful review of the testimony taken in the case, and an observation of the claimant by your Referee, we believe and find as a fact that the claimant, as a result of his accidental injury of June 11, 1935, suffers the industrial loss of the use of his right leg." This conclusion is one of fact and must be so construed. Cartin v. Standard Tin Plate Co.,
2. Under the facts in this case the petition for review was in time. In the testimony it definitely and clearly appears that the loss of the use of the leg, as found by the referee, resulted directly from the permanent injury; that the causal connection was complete and that the additional disability was separate and distinct from that which normally follows from the loss of the foot. Lente v. Luci, supra. If these facts had been known at the time of the agreement, claimant would be concluded by it. The agreement was entered into one week after the injury. It is reasonable to assume that both *69
claimant and defendant then believed that there would be a recovery from injuries to parts of the body other than the crushed lower leg and that they would not become permanent. There is no testimony to the contrary. Therefore while defendant is not charged with improper conduct in any respect in procuring the agreement, from the testimony it is clear that the agreement was executed upon mutual mistake of fact existing at the time it was made. Zupicick v. P. R.C. I. Co.,
Since there is sufficient evidence of the additional specific loss and that the existing agreement was entered into upon mistake of fact, claimant is entitled to compensation for an additional period of 65 weeks.
The judgment is affirmed. *70