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Workmen's Compensation Board

Kovach v. Vinton Colliery Co.

Claimant petitioned the Board to set aside a final receipt and reinstate his compensation agreement. The Referee. had terminated the agreement for total disability, with certain stipulations to be performed on the part of defendant. The claimant then filed a petition alleging his inability to perform any kind of work, and further, the lack on the part of defendant to supply him with light work as decreed in the original order. To this petition the defendant pleads the statute of limitations. It was held that the statute of limitations did not apply to this case, and it is further ordered that the order made on the final receipt be not considered as terminating the liability of the defendant, but simply extinguishing the obligation of the employer up until the date of the execution of the same. Compensation is awarded to claimant on the grounds of total disability, with leave to defendant, upon refusal of claimant to submit to an operation which would cure the defect, to petition the. Board for a revision of the order.

Petition by Claimant for Review.

F. J. Hartman, of Ebensburg, Pa., Attorney for Claimant. Frank P. Martin, of Pittsburgh, Pa., Attorney for Defendant. Opinion by MacKey, Chairman.

This is a petition of the claimant, Aaron Kovach, asking the Board to set aside a paper designated as a final receipt, and to re-instate his compensation agreement for the reason that he is still suffering disability because of an injury sustained in the course of his employment for the defendant.

On February 8, 1917, the claimant and the defendant executed a compensation agreement to cover an accident on November 21, 1916, in which it was stated that the accident consisted of a fracture of the left tibia. This agreement provided for compensation for fifteen weeks. Subsequently, however, the said agreement was continued during disability.

On May 7, 1918, upon petition and hearing held, Referee Snyder made the following order:

"Under the foregoing findings your Referee terminates compensation payments under Agreement No. 64193, as of date of hearing, April 9, 1918, with the understanding that Aaron Kovach be given light work by defendant, and that he shall be paid for partial disability after this date if such exists."

Kovach v. Vinton Colliery Co.

On February 1, 1919, the claimant filed a petition for modification of this order on the ground that his disability had increased and at that time he was a patient at the Memorial Hospital at Johnstown, and was about to undergo an operation, all of which was alleged to be due to the accident.

On May 23, 1919, the Referee disposed of this petition in the following language:

"Before holding a hearing in the above case the claimant executed a final receipt under date of May 6, 1919, which is hereto attached."

The said receipt is part of the record, and acknowledges total payment in the sum of $711.67.

On January 26, 1920, the claimant filed the petition which is now under consideration, alleging that the original agreement of April 9, 1918, ought not to remain terminated because the petitioner had not been able to do any kind of work since that time, and further stating that "I (Kovach) have not been able to work since compensation was terminated and cannot work now. The employer has not given me light work. I was unable to perform the labor offered by employer."

The defendant in its answer does not deny the allegations of the petition but raises the contention that inasmuch as Referee Snyder had terminated the compensation agreement on April 19, 1918, and "that no attempt has been made by the claimant to bring this matter to the attention of your Honorable Board previous to the date of this petition, therefore the Statute of Limitations has run and the petition will not lie."

In respect to this suggestoin on the part of the defendant. we must say that its answer cannot prevail. These pleadings do not raise the question of the Statute of Limitations which we have discussed in Hewitt v. Ballard Knitting Company, in an opinion handed down by the Chairman on February 11, 1920. It will be noticed, that while the order of Referee Snyder was to terminate the provisions of the agreement for total disability, yet he postponed the final consideration of the whole agreement until the claimant could have the opportunity of demonstrating his partial disability. In other words the order of the Referee was a suspensory one. The last payment of compensation by the defendant was in May 1919, and therefore from any aspect of the case, the statute of Limitations could not prevail under Section

VOL. XXXVI-No. 17

Kovach v. Vinton Colliery Co.

315 of the Pennsylvania Workmen's Compensation Act of 1915. The agreement is still alive and the fact that the Referee relieved the defendant at that time of paying total disability, leaving the question of partial disability open to be demonstrated by tangible proof, does not preclude the consideration of the whole agreement in case the proof demonstrates a complete recurrence of total disability due to the original accident. As was said in the case of Hewitt v. Ballard Knitting Company, supra, a compensation agreement when executed between claimant and employer, contemplates a life of 500 weeks. But this agreement is so completely within the revisionary power of the Board that it can be modified from time to time either in the interest of the employer or the employe, as the facts of each particular case justify the modification.

In this case there seemed to be a termination of total disability on May 7, 1918. The injured workman was not entirely recovered; there was a partial disability. In the Referee's judg ment at that time there was a certain amount of earning capacity in the injured man, and for the benefit of the employer, he terminated total disability, and left the question of partial disability open until the facts could demonstrate the proper rule by which the Board could fix the same. This order meant that there must be an exercise of good faith both upon the part of the employer and employe. It became the duty of the employe to make an honest effort to earn something, and it became the moral duty of the employer to give him that opportunity. Had both performed their duties in this respect, it would have been a simple matter of calculation, between the old wage and the new, to award compensation on that basis.

Thus the whole question was left open, and as against this status no Statute of Limitations could run.

With this understanding of the law and the pleadings we will address ourselves to findings of fact under the testimony taken in consequence of the claimant's present petition.

We find that the employer did not furnish to the injured man suitable work, but that it offered him an opportunity at heavy labor which he could not perform.

We find that the claimant has held himself out as willing to undertake light work for the purpose of reducing the obligation of the employer, evidencing his good faith. There is no ques

Kovach v. Vinton Colliery Co.

tion but that this man should be doing some light work. It is the employer who alone can furnish him such an occupation, for other employers, without the responsibility, moral or otherwise, for this man's injuries, have no interest in an employe in a crippled condition. One medical witness testified:

"I have seen him (Kovach) several times in the past year and a half or two years, and from the records I got at the hospital I found that he had an injury above his knee-broken leg and considerable contusion of the upper portion of the leg around the knee. Some time ago he was admitted to the hospital in my service, complaining of a great deal of pain in one of the toes of his foot, and it was deformed, and we amputated this toe. He has come to my office on several different occasions within the past year, complaining that it was impossible for him to work on account of the condition of his leg.

"I found on examination made at various times, and one within the past week, that he is suffering from a paralysis of the muscles of the front of his leg, which allows his foot to drop, and owing to the strong muscles of the back of his leg contracting it makes a deformity of his foot and inconveniences him a great deal in walking, and also a loss of considerable power of this leg. This deformity is permanent and will interfere with him walking or doing any kind of work where he has to move about; but the condition could be remedied so that he could get about much better and probably perform ordinary work."

Q. "You believe that an operation would restore this man, and he would have normal function of the leg?

A. "No, I can operate on him and put his leg in such shape that he will be able to do a fair day's work, and walk fairly well without use of cane after a time."

We also find that at the time of the execution of the receipt on May 8, 1919, that the above description of this medical witness indicates the condition of the man.

It is hereby ordered, therefore, that the alleged receipt, filed on May 8, 1919, be not considered as final or terminating the liability of the defendant, but merely as an acknowledgment of money received, extinguishing the obligation of the employer up to and including April 17, 1919, and that inasmuch as the evidence indicates that from that time to the date of this order, the employe, the claimant, has not been able to earn any money because

Kovach v. Vinton Colliery Co.

of his accident, the original agreement of $10 per week is reinstated.

The Board also finds that the operation suggested will not involve the life of the claimant, and that it will be reasonable for the claimant to submit himself to such operation, provided that it is furnished by the employer or insurance carrier free of cost to the claimant. And if such an offer is made and declined by the claimant, then upon application and proof, this order will be terminated until there is such a compliance on the part of the claimant.

Court of Common Pleas of Montgomery County

Johnson et al. v. Puche

Suit was brought to compel the defendant to pay the purchase money on two houses. The question raised by the defendant was whether the plaintiffs had a fee simple estate. Plaintiffs title was derived under the Will of their mother, which provided, after the death of the surviving husband, as follows: "332 Moore Street for Katie R. Shannon, and the house 330 is for John Renzo Shannon, the houses is not to be sold they are to remain in Susan E. Miles as long as they live, if they die without children they are to go to the nearest of kin." The question raised under this disposition was if plaintiffs had such a title that they could convey. The limitation after the devise to the two respective children is such that the devisees only take a life estate, subject to be vested in the nearest of kin, should they die without children, therefore, plaintiffs do not have such a title that they could convey same to defendant, and judgment must therefore be given in favor of defendant.

No. 26, February Term, 1919.

Assumpsit.

Henry I. Fox, Attorney for Plaintiff.

Freas Styer, Attorney for Defendant.

Opinion by Swartz, P. J., April 12, 1920.

The plaintiffs brought their action to recover from the defendant the purchase money for two houses and the lots of ground appurtenant thereto.

The parties in a case stated agreed upon the facts under which the issue in the suit arises.

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