170 A. 428 | Pa. Super. Ct. | 1933
Argued December 12, 1933. The statement of question involved submitted by the appellant is, "where an employe suffered a permanent injury but, after a short period of total disability, returned to the same job and received the same wages as before the accident, is he entitled to recover workmen's compensation for partial disability while he continues in that employment and at that wage?" The court answered in the affirmative.
Bonomo, the plaintiff, was employed by Bazley as a common laborer. He suffered a fracture of the right leg on March 26, 1930. Compensation was paid pursuant to an agreement up to and including May 19, 1931. At that time he returned to work for the same employer. On June 26, 1931, a petition was filed by the employer to terminate or suspend the compensation agreement, claimant having refused to give a final receipt.
The claimant has a shortening of his right leg of about an inch or an inch and a half and the limb is somewhat stiff at the knee. Since the claimant returned to work, with the exception of two weeks, he has received precisely the same wages that he received before he was injured. There is no doubt, and the appellant so admits, that the claimant is suffering from a condition which may at some future time reflect a loss of earning power, but the appellant claims that as long as the claimant receives the same wages as he did before the injury, he is entitled to nothing.
The Workmen's Compensation Board allowed compensation upon the theory that there was no evidence that claimant is actuallyearning the wages he is getting, inferring from the testimony, that the employer had favored this employe in the matter of wages, and that the workman is not able to do the same kind of work that he did at the time of his accident and that he would not be able to earn as much if he had to go *405 out in the open labor market. This statement of the board is substantiated by the testimony of the doctor who said that the man was unable to go out into the open labor market and do ordinary labor, but would have to perform such labor as did not require his full physical power to do it.
On appeal, the court sustained the view taken by the board. Referring to the testimony, Judge PALMER states in his opinion: "All of the testimony clearly established, indeed it was not contradicted, that the physical ability of the claimant had diminished as a result of the injury. It was positively asserted that the claimant had `a permanent partial disability.'" Judge PALMER refers to certain cases which we think definitely decide the question before us.
In Piper v. Adams Express Co.,
"The question was fully considered in the case last cited where it was said (pages 128, 129): ` The learned counsel for the appellant seemed to think, in view of the fact that the plaintiff's weekly wage was the same after as before the accident, the earning capacity of the plaintiff had not been diminished by reason of the injury, and hence, he was not entitled to recover damages in this case. That is not the standard by which the plaintiff's future earning capacity should be tested; it is whether the power or capacity to earn has been diminished as a result of the injury: Leonhardt v. Green,
This court in Johnson, Appellant, v. Jeddo Highland Coal Co.,
The judgment is affirmed. *407