Opinion
April 15, 1935.
July 18, 1935.
Workmen's compensation — Practice — Petition to modify award for partial disability — Petition not filed within statutory period for compensation — Questions of fact — Acts of June 2, 1915, P.L. 736 and April 13, 1927, P.L. 186 — Earning power — Loss of wages.
1. Under Section 306 (b) of the Workmen's Compensation Act of June 2, 1915, P.L. 736, amended by the Act of April 13, 1927, P.L. 186, compensation for partial disability shall not be paid beyond 300 weeks.
2. Whether the disability of a claimant has increased, or his earning capacity is less as a result of his physical condition, are questions of fact for the consideration and determination of the compensation authorities.
3. Order of common pleas, sustaining order of compensation authorities dismissing petition of claimant to modify award, attempted to be brought within the second paragraph of Section 413, on ground that subsequent to award for partial disability his earnings had decreased, affirmed on appeal, where it appeared that although claimant had filed his petition within one year after the date of the last payment of compensation to him, the 300 week period for partial disability had expired, and the evidence supported the finding of the compensation authorities that no increase in disability had been proved.
4. The true test of the extent of partial disability is earning power rather than earnings or wages.
5. The mere proof of a difference in wages received by the claimant after the award, is not conclusive on the question of loss of earning power.
Appeal, No. 132, April T., 1935, by plaintiff, from decree of C.P., Beaver Co., March T., 1933, No. 158, in case of James Sneed v. State Workmen's Insurance Fund et al.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and
RHODES, JJ. Affirmed.
Appeal from order of Workmen's Compensation Board dismissing petition to modify award.
The facts are stated in the opinion of the Superior Court.
Order of board sustained, opinion by READER, P.J. Claimant appealed.
Error assigned, among others, was order of court of common pleas.
M.J. Kraus, for appellant, filed no brief.
Ralph H. Behney, with him Charles J. Margiotti, Attorney General, and A.L. Edwards, Deputy Attorney General, for appellees.
Argued April 15, 1935.
The claimant in this compensation case was injured on June 29, 1926, while employed as a coal cutter by the Marwood Coal Company. His average weekly wages were $50. A compensation agreement, dated August 19, 1926, was entered into, providing for the payment of total disability at the rate of $12 per week. The claimant's physical condition having improved sufficiently for him to do light work, a supplemental agreement was entered into for partial disability at the rate of $12 per week, which was approved by the board on February 24, 1927. On February 2, 1928, defendant filed a petition to modify the agreement, averring claimant's disability had resulted in the loss of the use of his leg and asking that payments be authorized under section 306 (c) of the Workmen's Compensation Act. On March 20, 1928, the referee dismissed the petition to thus modify, holding that the claimant had not lost the industrial use of his right foot or leg; but he made an award granting the claimant compensation for partial disability at the rate of $5.70 weekly from December 18, 1927. Upon appeal, this award was affirmed by the compensation board and no further action was taken by claimant. Payments were made to the end of the 300-week period, which expired April 9, 1932.
On July 16, 1932, claimant filed a petition to modify the award, averring that subsequent to the award by the referee for partial disability his earnings had decreased, so that the difference between the average weekly wages before the accident and after the award was greater than was shown before the referee, and justified an increase in the amount of compensation awarded him. The referee and the board dismissed the petition for the reason that the claimant, with a partial disability, is not entitled to compensation beyond the 300-week period. On appeal, the order of the compensation authorities was sustained by the common pleas court. From that decree this appeal was taken.
Under section 306 (b) of the Workmen's Compensation Act of June 2, 1915, P.L. 736, finally amended by the Act of April 13, 1927, P.L. 186 ( 77 P. S. § 512), compensation for partial disability shall not be paid beyond 300 weeks. The claimant attempts to bring himself within the second paragraph of Section 413 ( 77 P. S. § 772), which provides, in substance, that any original or supplemental agreement or an award, upon petition filed by either party, may be modified, upon proof that the disability of an injured employee has increased, decreased or recurred, if application is made within one year after date of the last payment. The claimant moved within one year but he failed to prove an increase in disability, and his motion was too late because the 300-week period for partial disability had expired.
The claimant and his physician testified that claimant's condition has improved somewhat since March, 1928, and the referee therefore properly found that the claimant had failed to establish that his disability had increased, or that his earning capacity was less as a result of his physical condition. Those questions of fact were for the consideration and determination of the compensation authorities: Byerly v. Pawnee C. Co. et al., 105 Pa. Super. 506, 161 A. 460. The mere proof of a difference in wages received by the claimant after the award is not conclusive on the question of loss of earning power. The true test of the extent of partial disability is earning power rather than earnings or wages: Bonomo v. State Workmen's Ins. Fund, 111 Pa. Super. 402, 170 A. 428. The claimant's remedy, if dissatisfied with the award, was to appeal therefrom to the court of common pleas within the statutory period: Roeschen v. Dietrich et al., 107 Pa. Super. 298, 163 A. 63. This he failed to do, although he knew, according to his own testimony at the hearing before the referee, that his earnings in the ordinary course of events would decline.
The compensation authorities having found upon sufficient evidence that there was no mistake either of fact or of law that would justify further compensation, and that the claimant's disability had not increased, and that he had been paid for the full period of 300 weeks in accordance with the award, we find no reason for disturbing the conclusion reached by the learned court below.
Decree is affirmed at appellant's costs.