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Walsh v. Keystone State Con. Co.

Superior Court of Pennsylvania
Dec 18, 1934
175 A. 719 (Pa. Super. Ct. 1934)

Opinion

October 3, 1934.

December 18, 1934.

Workmen's compensation — Agreement — Termination — Finding — Absence of appeal — Second petition and finding — Act of April 13, 1927, P.L. 186 — Findings of compensation authorities — Review by appellate court.

1. Where a petition to terminate a compensation agreement upon the ground that although disability of claimant persists, it is entirely due to a cause which had existed prior to the accident, is dismissed by the referee and by the board, and no appeal is taken from the decision of the board, defendants cannot open the case so as to show that at the time of the hearing the injury alleged by claimant did not cause the disability, but defendants may later under Section 413 of the Workmen's Compensation Act of April 13, 1927, P.L. 186, file a second petition to terminate, and the referee may properly find upon sufficient evidence that at the time of the hearing upon the second petition the disability consequent to the accident has ceased.

2. It is the function of the referee and of the board to find facts, and the appellate court may not disturb such findings if they are supported by competent testimony.

Appeal No. 115, October T., 1934, by plaintiff from judgment of C.P. No. 4, Philadelphia County, September T., 1933, No. 6159, in the case of Thomas Walsh v. Keystone State Construction Company et al.

Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Affirmed.

Appeal from order of Board terminating compensation. Before BROWN, J.

The facts are stated in the opinion of the Superior Court.

Appeal dismissed and judgment entered for defendant. Plaintiff appealed.

Error assigned was dismissal of appeal.

Frank J. Eustace, Jr., for appellant.

Frank R. Ambler, for appellee.


Argued October 3, 1934.


On July 23, 1931, the appellant by reason of a fall due to the collapse of a scaffold sustained an injury to his lower left leg which caused the blood to collect beneath the skin and required incision and drainage. A compensation agreement was executed between him and his employer and its insurance carrier. On March 8, 1932, the defendant filed a petition to terminate upon the ground of recovery claiming that although some disability of the injured leg persisted, it was entirely due to varicose veins which had existed prior to the accident. This petition was dismissed and the board on appeal sustained the referee. From the board's decision no appeal was taken. On December 21, 1932, defendant filed a second petition to terminate. There was medical testimony showing that whatever disability persisted at the time of this hearing was wholly due to varicose veins. The board and the lower court joined in the action of the referee in terminating the compensation. Claimant has appealed. The argument of the appellant is that since the disability on March 8, 1932, was found to be due to the accident and not to varicose veins and there being no appeal from that decision that the matter in controversy was then decided and could not be reopened by the employer unless there is shown a change in claimant's condition. It is true that the defendants could not open the case so as to show that at the time of the former hearing the injury did not cause the disability. The board could not reverse the finding. The right to compensation on that date was settled. See Roeschen v. Dietrich et al., 107 Pa. Super. 298, 163 A. 63. That, however, did not close the door to subsequent inquiry. What was his condition December 21, 1932? Physicians were called and examined and testified. Eight (8) months had elapsed since the former examination. Section 413 of the Workmen's Compensation Act of April 13, 1927, P.L. 186, 77 PS Sec. 772 provides, inter alia, that a petition to terminate may be presented at any time. Several of the doctors testified at the last hearing that the disability consequent to the accident had ceased. This of necessity implied that there had been a change in claimant's condition. The referee adopted their conclusion. The board and the court below sustained it, and compensation was terminated. It is no answer to their last finding to say that some time before the disability due to the accident had existed. As stated, the inquiry was whether it still existed. The referee and the board are designated by law as those to whom the finding of facts is delegated, and we may not disturb such findings if they are supported by competent testimony.

There was sufficient evidence to support the conclusion reached by them.

The order of the court below dismissing claimant's appeal and entering judgment for the defendant is affirmed.


Summaries of

Walsh v. Keystone State Con. Co.

Superior Court of Pennsylvania
Dec 18, 1934
175 A. 719 (Pa. Super. Ct. 1934)
Case details for

Walsh v. Keystone State Con. Co.

Case Details

Full title:Walsh, Appellant, v. Keystone State Construction Company et al

Court:Superior Court of Pennsylvania

Date published: Dec 18, 1934

Citations

175 A. 719 (Pa. Super. Ct. 1934)
175 A. 719