24 A.2d 151 | Pa. Super. Ct. | 1941
Argued October 24, 1941. The principal question involved in this workmen's compensation case is whether the claimant's application to set aside a final receipt of compensation paid under a supplemental agreement, and to reinstate the original agreement of compensation for total disability was filed too late.
On November 1, 1926 claimant sustained an accidental injury in the course of his employment with the defendant as a pressman, which totally disabled him. An open agreement of compensation for total disability at $12 per week from November 12, 1926 was entered into on November 24, 1926, and numbered 2078741. In the agreement, which was prepared by the employer or its insurance carrier, the accident and resulting disability were described as follows: "Tightening bolt, wrench slipped, and he fell against heater. A chip off head of left Humerus. Left." As a matter of fact, as the undisputed testimony at the hearing revealed — the defendant offered none — the injury was *362 not confined to the humerus, which is the upper bone of the arm, but the left shoulder was also injured.
On May 31, 1929 the employer and its insurance carrier filed a petition with the Workmen's Compensation Board, setting forth that total disability under the injury had ceased "as of July 22d [1928], on which date injured resumed employment and has been working ever since." The petition further set forth that the claimant still had a partial disability which reflected a loss in earnings, but that he refused to execute a final receipt to terminate total disability or to execute a supplemental agreement for partial disability; and asked the board to modify said agreement. In his answer to this petition the claimant admitted that total disability from the original injury had ceased, but averred that his injured arm had not healed to such an extent as to make it a useful member and probably never would. It does not appear when the employer or its insurance carrier ceased making payments for total disability under the agreement; but the record shows that following a hearing on the petition and answer, the parties entered into a supplemental agreement on August 30, 1929, under the terms of which the claimant was to receive compensation for total disability, $12 per week, until July 23, 1928; then, for partial disability at the rate of $2.41 a week from July 24, 1928 until October 25, 1928; then, for total disability at $12 a week from October 26, 1928 to February 19, 1929, and then, partial disability at the rate of $3.82 from February 20, 1929.
On October 2, 1930, the parties entered into another agreement of compensation, likewise prepared by the employer or its insurance carrier, which was almost identical with the original agreement, except that following the description of the accident and injury above-recited appeared the addition, "(Loss of use of left arm)"; and that paragraph 7 on the back of the agreement provided for payment of compensation at the *363
rate of $12 per week, payable weekly "beginning from November 11, 1926 for 215 weeks", followed by the clause, "For . . . . . . weeks as provided in Section 306a, if the incapacity is total or for . . . . . . weeks as provided in Section 306b if the incapacity is partial, until this agreement has been terminated by final receipt or supplemental agreement approved by the Workmen's Compensation Board or by the order of such Board." (SeePriorello v. State Workmen's Ins. Fund,
Although not so designated, it was a supplemental agreement to agreement 2078741 and was filed to the same number.
On December 23, 1930 — less than three months thereafter — the employee signed a final settlement receipt showing the receipt of $15.43 the final payment of compensation for 215 weeks. At the time of signing this final receipt the employee claimant was totally disabled, having his left arm in a brace or frame and carried in an airplane splint, placed at a right angleto his body, following an operation at the Methodist Episcopal Hospital on April 4, 1930, six months before the supplemental agreement of October 2, 1930 was entered into and nearly nine months before the final receipt was signed.
Of course, if the claimant's injury had been confined to his left arm and amounted to the permanent loss of the use of the arm, it made no difference whether he was disabled, totally or partially, or was fully able to work when he signed the agreement of October 2, 1930: Lente v. Luci,
Our case differs from Kitchen v. Miller Bros. Co.,
In the present case, however, the original compensation agreement which was entered into was not under section 306 (c) for the permanent loss of a member, but was under section 306 (a) for total disability, and might extend for 500 weeks (or until June 25, 1936) if total disability lasted that long. This case is more nearly like Gardner v. Pressed Steel Car Co., supra, where an open agreement of compensation for total disability because of injury to an eye, was entered into on July 16, 1929, providing for payment of $15 per week from June 3, 1929. After payments had been made for 13 weeks the injury to the eye had developed into the permanent loss of the use of the eye, and on September 19 a supplemental agreement was executed providing for compensation for 125 weeks for the loss of the eye under section 306 (c), which would expire October 28, 1931. The board commuted the payments on March 14, 1930, on which day claimant executed a final receipt. On June 7, 1932, nearly two years and three months after the commuted payment and over seven months after the expiration of the 125 weeks period, the claimant filed a petition asking for a review of the compensation agreements, based upon the fact that when he signed the supplemental agreement he was suffering from dementia praecox which was aggravated to such an extent by the accidental injury that it totally disabled him from working in any gainful employment. We sustained an additional award, saying, through Judge CUNNINGHAM:
"It should be borne in mind that the original agreement *366 into which the employer entered with its employee had a potential life of 500 weeks under 306 (a). When it became apparent that he had lost the use of his eye, it was proper enough to enter into a contract to pay him for 125 weeks under 306 (c) for that permanent injury, but that did not end the employer's liability in the event of the development of a disability separate and distinct from that covered by the supplemental contract.
"We are not here dealing with a mere mistaken belief that a disability, compensable under 306 (a) or 306 (b) and covered by an original agreement, had terminated, as is frequently the case, but with a complete lack of knowledge by both parties of the extent of the injuries inflicted by the accident.
"Our conclusion, upon a review of the entire record, is that the referee and court below were justified in holding that claimant was entitled to an award of additional compensation under 306 (a), not upon all the reasons stated by them, but upon the ground that it was sufficiently shown that the final receipt was founded upon a mutual mistake of fact."
This claimant has had a long hospital experience as a result of this injury. On January 15, 1927 he was sent by defendants to the Mercy Hospital in Pittsburgh, where an operation was performed, and in September 1927 was sent back for another operation. At least one of these operations was to his shoulder, for the scar resulting from it was noticed when he was operated on at the Methodist Episcopal Hospital for reconstruction of his shoulderjoint on April 4, 1930. The examination at the Methodist Episcopal Hospital showed that his shoulder joint had been fractured by the fall, rather than the humerus, and that osteomyelitis had developed in the shoulder and apparently spread to the humerus, for the osteomyelitis in the shoulder was described as `old', and that adjective was not applied to *367 the diagnosis of osteomyelitis in the humerus. Following that operation, and while the shoulder was still discharging pus on April 19, 1930 — according to the hospital records — his shoulder and arm were put in a frame and his arm in an airplane splint, which made it impossible for him to do any work; and that was his condition when the supplemental agreement of October 2, 1930 was prepared by defendants, which said nothing about the injury to the shoulder and limited it to the loss of use of his arm. It is understandable that the claimant would not discriminate between the shoulder and the arm, but the defendants, and especially the insurance carrier, should have. The slightest examination by it of the records of the Methodist Episcopal Hospital, or inquiry there concerning the reason for claimant's airplane splint which he carried at the time, would have revealed the diseased condition of the shoulder and that his injury was not confined to the arm, even if it had resulted in the loss of its use. It is scarcely conceivable that the insurance carrier made no inquiry into or examination of those records before it prepared the supplemental agreement of October 2, 1930.
Between April 19, 1930 and August 1931, claimant continued to remain totally disabled, with his arm in the airplane splint, and that was his condition when on August 5, 1931 he was admitted to the Jefferson Hospital, where his trouble was diagnosed as osteomyelitis of the left shoulder, shown by (1) pain and inability to use left shoulder, and (2) a discharge from the shoulder.
The records of the Jefferson Hospital and the testimony of Dr. Fry show an almost constant series of operations, beginning with September 1931 and continuing until April 1934. At least twelve operations and fifteen blood transfusions were performed, some in an endeavor to save his arm, which finally had to *368
be amputated on November 8, 1933, in order to save his life; but the testimony as a whole shows that the shoulder had been involved from the beginning, or at least long before the supplemental agreement of October 2, 1930. If the insurance carrier knew of this, its action in preparing the supplemental agreement, limiting the injury to the loss of use of the arm, was improper: Johnson v. Purnell,
We need not refer to all the proceedings before the board following the claimant's application on May 17, 1934 to set aside the final receipt and reinstate the original agreement, for the rehearing granted by the board, pursuant to petition of June 26, 1937, superseded them. The use of three separate applications, simultaneously filed, may have created some confusion, but as the forms prepared by the Bureau scarcely fitted the circumstances of the case, the claimant was entitled to whatever relief, if any, was appropriate. However, it would not be under the second
paragraph of section 413, but under section 434: McGarvey v.Conemaugh Lumber Co.,
On July 29, 1938, the petition for rehearing was allowed by the board while an appeal was pending in the lower court, and the case was sent back to Referee Casey for rehearing. On July 14, 1939, the referee filed his decision, making the following findings of fact: "(1) That the disability of the claimant extends beyond the injury to his left arm. (2) That the claimant is now suffering an involvement of his left shoulder girdle up to a point near the neck, which condition is the result of the accident in this case. (3) That the claimant is totally disabled as a result of the above described condition." His conclusion of law was that claimant was entitled to compensation at $12 per week for total disability from December 26, 1930, until *370 such time as his disability should cease or change in extent within the limitation of the act. He awarded compensation in accordance with said conclusion of law.
On appeal to the board, that body ruled that the petitions were filed too late. It did not set aside the referee's findings of fact, but held them insufficient and made three additional findings: (4) That the petition should have been filed before the expiration of the 215 weeks — (that is, between October 2, 1930 and December 26, 1930). (5) That there had been no fraud, coercion or improper conduct in obtaining the supplemental agreement or final receipt, and (6) That the disability "which claimant now suffers" (that is, on May 24, 1940) did not exist at the time the final receipt was executed. It concluded as matter of law, that, by reason of the petitions not having been filed in time, it had no jurisdiction and sustained the appeal and dismissed the petitions.
The court of common pleas dismissed the claimant's appeal.
The referee misunderstood the purpose of the hearing before him. He overlooked the initial duty resting on him, viz., to find whether at the time the supplemental agreement of October 2, 1930 was entered into, the claimant was suffering from a diseased condition of the left shoulder resulting from an injury to it received in the accident on November 1, 1926, which was a factor in his total disability unquestionably existing when that agreement was signed.
While the hospital records and the testimony of Dr. Fry clearly established this, and the evidence in the record would not support an adverse finding, we are not the fact finding body and cannot add such a finding of fact to the referee's decision which is deficient without it.
We do not agree with the ruling of the board that in *371
the circumstances present in this case the application to set aside the final receipt and reinstate the original agreement of compensation was made too late, and that it was without jurisdiction to consider it: McKissick v. Penn Brook Coal Co.,
The judgment is reversed and the record is remitted to the court below with directions to send it back to the board, to hear and determine the matter in accordance with the legal principles stated in this opinion.
