53 A.2d 903 | Pa. Super. Ct. | 1947
Argued April 22, 1947. Claimant, in the course of his employment in defendant's mine, was struck by a fall of rock on November 3, 1938. He suffered a fracture of the sixth cervical vertebra and other injuries in the upper dorsal region, with accompanying nerve irritation and consequent continuing discomfort. An open agreement was entered into providing for compensation for total disability. Claimant returned to work in the mine eleven months later. On April 22, 1940, after his disability had become partial, compensation was reduced accordingly by modification of the agreement. Alleging that claimant's disability had entirely ceased, defendant, in the proceeding with which we are concerned, petitioned for an order terminating compensation as of January 1, 1944. At the hearing on this petition, the referee found that claimant still had 30 per cent physical disability from his injury. But there was no denial that he had been performing hard labor in defendant's mine for at least two years as a "roadman", at higher wages than he had earned prior to his injury as a "timberman". From the testimony the referee found that claimant "since January 1, 1944 had an earning power equal to or greater than that which he had at the time of his injury." On these findings *171 the referee concluded that, though the facts did not justify termination, yet defendant was entitled to a suspension of compensation payments as of January 1, 1944. An order was entered accordingly. The board adopted the referee's findings of fact and conclusions of law, and the order was affirmed both by the board and the lower court. The order must also be affirmed in this appeal.
Two questions are raised: Whether defendant has met the burden of proof that the claimant no longer suffered a loss of earning power, and, if so, whether there is authority in the Workmen's Compensation Law for suspension of compensation payments on that ground. Since claimant was injured in 1938, his rights are determined by the amendment of June 4, 1937, P.L. 1552. The changes in the Workmen's Compensation Law effected by that act were substantive in character and not procedural merely. Artac v.Union Collieries Co.,
The 1937 amendment, in section 306(b),
In the absence of a statutory provision, as in the amending Act of June 21, 1939, P.L. 520,
There are cases in which, because of unusual circumstances, we have affirmed judgments for compensation where wages received by the claimant were equal to or in excess of his earnings before his injury, e.g., Weinstock v. United Cigar Stores Co.,
These principles, construing the Workmen's Compensation Law, mean nothing unless they can be given effect. In our view it is unimportant that the second paragraph of section 413 of the 1937 act may not be invoked as authority for the present order(Stanella v. Scranton Coal Co.,
Order affirmed. *174