Opinion
September 17, 1959.
November 11, 1959.
Workmen's Compensation — Disability — Total or partial — Ability to handle only specially created job — Substantial earnings in job created by employer — Inconsistent allegations — Receipt of retirement pay — Application by board of law to facts — Judicial review — Order remitting record — Appealability.
1. In a workmen's compensation case, in which it appeared that claimant, employed to sell books on commission, was accidentally injured and suffered a permanent brain injury, as a result of which his memory and thinking processes became seriously deficient; that about eleven months later claimant returned to his employment, but because of his mental condition he was unable to perform the work alone and his wife accompanied him and materially assisted in selling the books; that for a period of approximately three and one-half years claimant received substantial commissions from his employer; that the board concluded that claimant could hold only a special job, that defendant had failed to meet the burden to show that such a job was within reach, and that claimant was totally disabled during all of the time since the accident; and that the court below reversed the board and remitted the record for the entry of an order of partial disability; it was Held that (a) the board erred in ignoring the fact that claimant had a job, created by his employer, in which claimant rendered services which were of value to his employer and for which he was paid by his employer; and (b) the order of the court below should be affirmed.
2. Where an injured person can handle only a specially created job, one light of effort and responsibility, the burden is on the defendant-employer to show that such a job is in fact within reach; if proof of that fact is not presented, the claimant is then entitled to a finding of total disability.
3. It was Held that the court below properly concluded that, under § 204 of the Workmen's Compensation Act, as amended by the Act of June 21, 1939, P.L. 520, claimant was not ineligible for benefits because he was receiving a substantial annual sum under a retirement policy.
4. Where it appeared that defendant filed a petition to terminate the agreement providing compensation for total disability, to which claimant filed an answer denying that he had recovered and alleging that he suffered permanent partial disability; that because of a third party settlement the hearing on this petition was postponed, and no further compensation was paid pending application of the settlement credits; and that more than three years later claimant filed a petition for review of the agreement, alleging permanent total disability since the accident and exhaustion of the settlement credits; it was Held that claimant's allegation of partial disability in his answer to the determination petition, although it was a matter for serious consideration by the board in determining the facts, did not, of itself, preclude the board's finding the disability to be total as alleged by claimant in his petition filed subsequent to the answer.
5. Where the board errs in applying the law to facts about which there is no serious dispute, it is the duty of the court to set aside the order of the board and properly apply the law to the facts.
6. Ordinarily, when the court below orders the record to be remitted to the board for additional testimony, the order is not appealable, but under circumstances such as in this case, where the court below set aside the award of total disability during the period in dispute and directed the entry of an order of partial disability, the order may be appealed.
Before GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ. (RHODES, P.J., and HIRT, J., absent).
Appeal, No. 412, Oct. T., 1959, from order of Court of Common Pleas of Montgomery County, April T., 1958, No. 171, in case of Joseph J. Cohen v. Doubleday Company, Inc. et al. Order affirmed.
Appeal by employer from award by Workmen's Compensation Board.
Order entered sustaining appeal in part, and remitting record to board, opinion by FORREST, J. Claimant appealed.
Maurice S. Strauss, for appellant.
Frank R. Ambler, for appellee.
Argued September 17, 1959.
The only question in this workmen's compensation case is whether the claimant was entitled to payments for total or partial disability while he was receiving commissions for services rendered to his employer during a period from approximately May 1953 to September 1956. The referee found he was partially disabled during this period and allowed him $21.25 per week compensation. The board found he was totally disabled and allowed $30 per week compensation. The Court of Common Pleas of Montgomery County reversed the board and remitted the record.
The claimant, Joseph J. Cohen, was employed by Doubleday Company, Inc. to sell books on commission, and received average weekly wages of $281.85. On June 23, 1952, while operating his automobile in the course of his employment, the claimant suffered a fractured skull in a head-on collision.
Under an agreement, the claimant was paid compensation for total disability to February 23, 1953. The defendant filed a petition to terminate as of February 24, 1953. The claimant filed an answer denying that he had recovered, and alleging that he suffered permanent partial disability. Because of a third party settlement the hearing on this petition was postponed, and no further compensation was paid by the insurance carrier pending exhaustion of the third party settlement credits. On November 15, 1956, the claimant filed a petition for review of the agreement alleging permanent total disability since the accident and exhaustion of the third party settlement credits.
The defendant presented no evidence at the hearing. It was established from the claimant's medical testimony, that he suffered a permanent brain injury which caused "a defect in reasoning and a very superficial insight into his predicament, social economics and his own mental state." It was clear from his own testimony, and that of his wife, that his memory and thinking processes were seriously deficient.
When asked about the claimant's ability to work, his physician testified, "If he was assigned to a sitting — or to a certain job which would just require repeatative movements — he can write; he can add numbers. He can complete an act which is directed or directive, by telling him to do something; but there is no assurance that he would remain on that assignment for the eight hours . . . He is not reliable."
In May of 1953, the claimant returned to his employment. Because of his mental condition he was unable to perform the work alone and his wife accompanied him wherever he went, and materially assisted him in selling the books. Although he required assistance, he was employed and did perform a service. He, and not his wife, was the employe, and he received the commissions. The exact amount of commissions paid him is not clearly set forth in the record, but it is alleged to have been $28,000 from 1953 to 1957. These were commissions, not for services previously rendered, but for services rendered subsequent to the accident.
After hearing the evidence, the referee concluded that the claimant was partially, but not totally, disabled during the period he was receiving these substantial commissions from his employer.
The board, however, concluded that his disability was total during all of the time since the accident. It stated that "the work performed during this period was done under [the wife's] guidance and direction." It reasoned that the claimant could handle only a special job, light of effort and responsibility, and that the burden was upon the defendant to show that such a job was within reach, and that the defendant failed to meet this burden.
The board is the final fact finding body, and neither the court below nor we can set aside its findings of fact unless there was a capricious disregard of competent evidence. Paulin v. Williams Co., Inc., 122 Pa. Super. 462, 466, 186 A. 415 (1936); Walker v. Aluminum Company of America, 185 Pa. Super. 355, 359, 138 A.2d 197 (1958). If, however, the board errs in applying the law to facts about which there is no serious dispute, it is the duty of the court to set aside the order of the board and properly apply the law to the facts. Lee v. McMinn Industries, Inc., 167 Pa. Super. 501, 508, 76 A.2d 493 (1950); Dydo Unemployment Compensation Case, 189 Pa. Super. 286, 290, 291, 150 A.2d 591 (1959).
The rule of law applicable to this case is clear and well established. It was recognized by the board, but not properly applied to the undisputed facts. The rule was stated by this Court as early as 1932 in Consona v. R.E. Coulborn Co., 104 Pa. Super. 170, 172, 173, 158 A. 300. The Supreme Court stated it recently and most colorfully in an opinion by Justice MUSMANNO, in the following language: "Where the injured person can handle only a specially-created job, one light of effort and responsibility but laden with rest and comfort (employment plums that do not often dangle from the tree of everyday economics) the burden is on the defendant-employer to show that such a job is in fact within reach. If proof of that fact is not presented, the claimant then is entitled to a finding of total disability." Unora v. Glen Alden Coal Co., 377 Pa. 7, 13, 104 A.2d 104 (1954). See also Cunningham v. Guerrina, 188 Pa. Super. 288, 291, 146 A. 318 (1958), and Naughton v. Kettl, 154 Pa. Super. 318, 321, 35 A.2d 527 (1944).
Here the employer created a job specially tailored for the claimant, and for such services as he was able to perform, paid him wages far in excess of the maximum workmen's compensation for which the employer would have been liable.
The job was "in fact within reach." The claimant had the job. The defendant gave it to him. The board erred in ignoring this fact, and the court below properly reversed.
The evidence does not show that the wages were wholly unearned. Within his limited capacities, the claimant rendered services which were of value to his employer and for which he was paid by his employer. See Hughes v. H. Kellogg Sons, 139 Pa. Super. 580, 583, 13 A.2d 98 (1940).
In distinguishing between two classes of disability this Court said: "The first includes persons who have sustained accidental injuries, but are capable of steadily performing certain types of light work. It is presumed that such work is available, and that one can procure it. In those circumstances a claimant is entitled to compensation for partial disability. The second class embraces those who are not able uninterruptedly to do even light work owing to their physical limitations due to accidental injuries. If suitable work is available for such a person it is incumbent upon the defendant to show that fact, otherwise a claimant is entitled to total disability." Earley v. Phila. Reading C. I. Co., 144 Pa. Super. 301, 305, 19 A.2d 615 (1941).
The court below found that the claimant was totally disabled from June 23, 1952 to May 1953, partially disabled from May 1953 to September 1956 and totally disabled thereafter, and should receive workmen's compensation accordingly. The record does not show how much was paid to the claimant in wages by his employer between May, 1953 and September 1956. As Judge FORREST said, "This will be material in the event that the claimant was only partially disabled. If so, it will be necessary to determine to what extent the partial disability affected his earning power. The record should be remitted for the purpose of determining the quantum of the disability, as to which the amount of the employer's payments during the period of partial disability may be relevant."
The court below properly disposed of another contention of the appellee in the following language: "The employer contends that the claimant should be denied the benefits of the Act because he `retired' as of January, 1957 and is being paid $8,000 per year under a retirement policy. This contention is unmeritorious. The Workmen's Compensation Act of June 2, 1915, sec. 204, as last amended by the Act of June 21, 1939, P.L. 520, sec. 1, 77 PS 71, provides: `The receipt of benefits from any association, society, or fund shall not bar . . . the recovery of compensation . . .'"
The appellee moved to quash this appeal on the ground the order of the court below was interlocutory. Ordinarily, when the court below orders the record to be remitted to the board for additional testimony, the order is not appealable, but under the circumstances of this case, where the court below set aside the award of total disability during the period in dispute and directed the entry of an order of partial disability, we are of the opinion that the order may be appealed to this Court. See Leftwrich v. Colonial Alum. Sm. Corp., 184 Pa. Super. 622, 629, 136 A.2d 182 (1957).
The appellee contends that the claimant's allegation of partial disability in his answer to the termination petition estops and precludes him from subsequently claiming continuous total disability since the accident. Although this allegation by the claimant was a matter for serious consideration by the board in determining the facts, it did not, of itself, preclude the board's finding the disability to be total as alleged by the claimant in his petition filed subsequent to the answer. Thatcher v. Weinstein, 154 Pa. Super. 368, 373, 35 A.2d 549 (1944).
Order affirmed.