14 A.2d 168 | Pa. Super. Ct. | 1940
Argued April 10, 1940. This appeal in a workmen's compensation case is principally concerned with a question of procedure. Claimant met with an accident on October 17, 1936, and a hearing on a claim petition was held by a referee on August 20, 1937. The referee, on September 29, 1937, awarded him compensation for total disability for *466 periods aggregating 17 2/7 weeks prior to August 1, 1937, and for total disability for an indefinite period beginning August 18, 1937. On appeal the board remanded the record to the referee with directions to him to appoint an impartial specialist and take his testimony. This was done and the referee, on November 30, 1938, made the same order as he had made in the first instance. On appeal the board again remanded the record to the referee but later reconsidered its action and directed that the referee return the record to the board. On June 29, 1939, the board affirmed the award made by the referee.
On appeal to a court of common pleas the award was affirmed and judgment was entered December 9, 1939, for the total sum of $6,500, subject to certain limitations provided in the Workmen's Compensation Act, and then the court proceeded to liquidate the amount due and payable by defendant as of November 15, 1939, saying: "The total payments now due on this award, computed to and including November 15, 1939, are as follows: [Computation] $2,172.53." On December 2, 1939, the defendant presented to the board a petition for termination, alleging that disability ceased on September 15, 1937, and that claimant had returned to work for the same employer. The objection of the defendant to the liquidation of the judgment by the court of common pleas arises from the fact that it may be compelled to pay compensation for a period after the disability is alleged to have ceased and before it has had an opportunity to establish its claim that disability had terminated. When the board returned the record to the referee it was only for the purpose of calling an impartial expert to determine whether there was a causal connection between accident and disability. No opportunity was afforded to show a change in disability.
"The rule that an award is final unless appealed from (Putt v.Laher Ice Cream Co.,
This is sufficient to show that the court should not have liquidated the amount due on November 15, 1939, as it did in fact do. If the court below in entering judgment had followed the procedure outlined in Graham v. Hillman Coal Coke Co.,
Section 413 of the Workmen's Compensation Act (
Section 306 (a) (
If the defendant permits the award to be finally affirmed, it will find itself in a position where, if it then presented a petition to terminate, it would be compelled to pay the compensation fixed by the final award to the date of the filing of the petition to terminate. This anomaly has been created by the long delay between the date, August 20, 1937, when testimony was last taken bearing on the disability of the claimant, and the date when this award could now become final.
In McGee v. Y. O. Coal Co., supra, we indicated that a final award in a compensation case was conclusive only up to and including the date on which the referee made his award. In so holding we assumed that the referee's award would be promptly made and within a time when it would be presumed that the claimant's disability had not changed from what it was when the proofs were made bearing on that question and the award would be supported by evidence.
Claimant's disability was intermittent between the date of the accident and August 18, 1937, when the referee *469 held that it became total for an indefinite future. The period between August 18 and August 20 was a short one on which to base the future degree of disability and, in fact, defendant asserts that it was terminated on September 15, 1937. It also appears that the cause of disability was a sinus infection. This would seem to be a further reason for an additional investigation of the claimant's status since the referee's first award. Justice can only be done by remitting the record to the board for the taking of further testimony and making additional findings of fact to the end that the condition of claimant as to disability since September 15, 1937, may be determined. To deny this relief would be contrary to the spirit of the statute which contemplates that compensation shall be changed when disability changes and fixes the date for the change as the one upon which it is shown that the disability of the injured employee has ceased or changed.
The judgment of the court below is reversed and it is directed that that court return the record to the board for the purpose only of taking additional testimony as to claimant's disability after September 15, 1937, and determining what, if any, change in the disability of claimant has occurred since that date.