71 A.2d 839 | Pa. Super. Ct. | 1949
Argued November 15, 1949. In October 1939 claimant sustained serious injuries to both legs from accident in the course of his employment with the defendant. An open agreement was then entered into providing compensation for total disability. On December 7, 1945 the defendant petitioned for termination of the agreement alleging that claimant is no longer disabled, in the sense contemplated by the Workmen's Compensation Law. In this proceeding the Board affirmed the Referee's findings of fact, conclusions of law, and the order dismissing the petition; on appeal, the lower court entered judgment against the defendant on the compensation agreement.
Claimant's physical condition has further deteriorated especially during the past two years. His injuries are permanent; they are disabling and there is no hope for improvement. He still has two running sinuses in the injured members which require dressing. He must use crutches at all times to get about and is obliged to lie down for frequent rest periods during each day. Conceding all this, the appellants contend that claimant conducts a retail grocery and meat business at a profit and they seek a termination of the agreement on that ground.
Since the defendant sought to change the status created by the compensation agreement, the burden was on it to show that claimant no longer suffers loss of earning power. Brown v.Union Collieries Co.,
The business showed a profit of about $150 per month during 1945. For the year 1946 the net income of the business was $3,134.41. But the finding to this effect was qualified thus, on ample testimony: "This amount, however, represents the combined earnings of the claimant, his wife, and four daughters; and it can be said also that in this figure is an amount that should constitute a fair return on the capital investment in the business. What that amount is or should be, the record fails to disclose. Nor does the record break down the 1946 figure so as to show what the claimant's share of the earnings might be". The general rule is that profits derived from a business are not to be considered as earnings and cannot be accepted as a measure of loss of earning power unless they are almost entirely the direct result of personal management and endeavor. Offensend v. Atlantic Ref. Co.,
Earley v. Phila. Reading C. I. Co.,
The defendant has not shown that the services which the present claimant renders in the grocery store have value and has wholly failed to sustain the burden of proof necessary to justify a modification of the agreement in this case.
Judgment affirmed.