Opinion
March 16, 1938.
April 13, 1938.
Workmen's compensation — Practice — Rehearing — After-discovered evidence — Discretion of board.
In a workmen's compensation proceeding, in which it appeared that defendant's petition to terminate an agreement of compensation was dismissed by the board; that a petition by defendant for a rehearing, averring that prior to the hearing the claimant had worked at various jobs for which he was paid, was also dismissed by the board; that in its petition for a rehearing defendant had not averred that its alleged knowledge as to claimant's work was obtained after the hearing or that even by the exercise of ordinary diligence it could not have presented this evidence at the hearing, an order of the common pleas dismissing an appeal by defendant from the decision of the board, on the ground that the action of the board was not, under the circumstances, an abuse of discretion, was affirmed on appeal.
Appeal, No. 90, Oct. T., 1937, from order of C.P. Schuylkill Co., March T., 1936, No. 247, in case of Harry Schach v. Hazle Brook Coal Company.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and RHODES, JJ. Order affirmed.
Appeal by defendant from decision of Workmen's Compensation Board refusing petition for rehearing.
The facts are stated in the opinion of the lower court, PALMER, J., as follows:
The claimant in this case was injured while in the employment of the defendant on December 20, 1932, and a compensation agreement was later entered into for payment for compensation to him.
On December 18, 1934, the defendant filed a petition to terminate the agreement, alleging that the claimant had recovered from the effects of the injury and was able to resume work. The claimant denied these allegations and after a hearing was held by the Referee on July 30, 1935, he dismissed the petition of the defendant.
An appeal from this action was taken to the Workmen's Compensation Board but they on November 27, 1935, affirmed the findings of fact, conclusions of law, and order of the Referee.
No appeal was taken by the defendant from the Board's action but on December 14, 1935, the defendant filed a petition with the Workmen's Compensation Board praying for a rehearing on the termination petition and alleging that prior to the hearing "the claimant worked at various jobs for which he was paid." In answer to the petition, the claimant denied this fact. On January 13, 1936, the Board dismissed this petition.
From this action, the defendant appealed to this Court, contending that the refusal of the Board to rehear was an abuse of discretion.
The petition for rehearing did not aver that this alleged knowledge of the claimant having worked at various jobs was obtained after the hearing or that even by the exercise of ordinary diligence they could not have presented this evidence at the hearing. In other words, they do not aver that this fact was afterwards discovered.
We can not come to the conclusion, after a consideration of all the circumstances before us, that the Board abused the discretion given it by the Act of 1927, P.L. 186, Sec. 8, as the Board did not exceed the bounds of reason in refusing a rehearing.
And now, January 25, 1937, the appeal of the defendant is dismissed; the order of the Compensation Board in dismissing the petition for a rehearing is affirmed.
Defendant appealed.
Errors assigned were dismissal of exceptions to findings of Board and entry of final judgment.
P.B. Roads, for appellant.
Roger J. Dever, for appellee.
Argued March 16, 1938.
The order of the court below is affirmed on the opinion of Judge PALMER.