Opinion
April 11, 1938.
April 25, 1938.
Workmen's compensation — Injury — Eye — Evidence — Act of June 4, 1937, P.L. 1552 — Remitting record — Question of law.
1. Where neither the eye nor the use thereof is wholly lost, the claimant is not entitled to compensation under the provision of Section 306(c) of the Workmen's Compensation Act, but is limited to compensation for disability, total or partial, if any, under paragraphs (a) and (b) of the same section.
2. Massett v. Armerford Coal Mining Company, 82 Pa. Super. 579, held controlling.
3. The Act of June 4, 1937, P.L. 1552, amending the Workmen's Compensation Act, is not applicable in a case where a judgment was entered in an appeal from an award before the passage of the Act.
4. Where, on appeal by defendant to the common pleas from an award of compensation, it appears that the evidence does not sustain a finding that the injury to claimant's eye amounts to the permanent loss of the use of the eye, for which compensation can be awarded under Section 306(c), for the loss of an eye, and it is admitted that claimant has received the total compensation to which he is entitled under paragraphs (a) and (b), in sustaining the appeal the court may enter judgment for the defendant and is not required to refer the record back to the board for further findings.
Appeal, No. 196, April T., 1937, from judgment of C.P. Erie Co., Sept. T., 1936, No. 541, in case of Francis Ward v. Bucyrus-Erie Company.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and RHODES, JJ. Judgment affirmed.
Appeal by defendant from award of Workmen's Compensation Board.
The facts are stated in the opinion of the court below by HIRT, P.J., as follows:
This is defendant's appeal from the order of the Workmen's Compensation Board, affirming the award of the Referee.
Compensation was claimed for the total industrial loss of the use of one eye, under Section 306(c) of the Compensation Act of June 26, 1919, P.L. 642. There is no dispute as to the facts and they need not be reviewed here for they are parallel in all essential respects with those of Massett v. Armerford Coal M. Co., 82 Pa. Super. 579, and on that authority the appeal in this case must be sustained. Since neither the eye nor the use thereof was wholly lost, claimant is not entitled to compensation under the provision of Section 306(c) of the Workmen's Compensation Law but is limited to compensation under the provisions of paragraphs (a) and (b) of the same section. It is admitted that he has received the total compensation to which he is entitled under paragraphs (a) and (b), and therefore in sustaining this appeal we are not obliged to refer the record back to the Board for further findings, for this reversal is founded wholly upon a question of law: Berlin v. Crawford, 86 Pa. Super. 283; Vorbnoff v. Mesta Machine Co., 286 Pa. 199.
And now, to wit, October 28, 1936, the action of the Workmen's Compensation Board, affirming the award of the Referee to the claimant for the loss of the use of his right eye, is reversed and judgment is directed to be entered in favor of the defendant.
Claimant appealed.
Error assigned was action of lower court in sustaining defendant's appeal.
Edward E. Petrillo, for appellant.
A. Grant Walker with him Gunnison Fish, Gifford Chapin, for appellee.
Argued April 11, 1938.
The judgment appealed from in this case was entered before the passage of the Act of June 4, 1937, P.L. 1552, amending the Workmen's Compensation Act. The Act of 1937 is not involved.
Nothing can profitably be added to the clear and concise opinion of President Judge HIRT, which appears in the Reporter's statement.
Judgment affirmed.