Bausch v. Fidler

121 A. 507, 277 Pa. 573, 1923 Pa. LEXIS 459
CourtSupreme Court of Pennsylvania
DecidedMay 23, 1923
DocketAppeal, No. 246
StatusPublished
Cited by32 cases

This text of 121 A. 507 (Bausch v. Fidler) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bausch v. Fidler, 121 A. 507, 277 Pa. 573, 1923 Pa. LEXIS 459 (Pa. 1923).

Opinion

Opinion by

Mr. Justice Kephart,

Claimant fell from the roof of a church which he was painting. His left arm and right leg were broken, and right wrist injured. The compensation agreement did not specify under which class he was to be paid, and defendant ceased paying 175 weeks after the accident. On claimant’s petition to amend the agreement so that its terms might provide for definite losses, the board and court below affirmed the referee in awarding compensation under section 306, paragraph (c), for 215 weeks for the permanent loss of the left arm, 215 weeks for the permanent loss of the leg, and, in addition, under paragraph (b), for the partial loss of earning power due to the fractured wrist of the other arm. This award, except the latter part, cannot be very well disputed on the facts.

At first, the extent of claimant’s injuries was not known. When it appeared he was to have a permanently paralyzed arm, and a permanently stiff leg, with no hope of their recovery or of alleviating that condition, he was entitled to an order for their loss in combined weeks, [576]*576under paragraph (c). The act specifically permits compensation for the combined number of weeks (section 306, paragraph c): “For the loss of any two or more of such members.......fifty per centum of wages during the aggregate of the period specified for each.” This part of the award is in direct accord with Sharcheck v. Beaver Run Coal Co., 275 Pa. 225, 227: “When the injury happened it could be well regarded as one of...... total disability......with a possibility either of improving and entirely healing, or, as it did, of lapsing into a different condition, i. e. permanent, causing the loss of the use of a foot,......and while compensation was being made under section 306 (a). Claimant [when the extent of loss was determined] was then entitled to an award for the loss of the use of a foot......[page 228]. So, if the injury or wound becomes permanent, causing the loss of the use of a member named in 306 (c),...... for all disability to such member, resulting from such permanent injury, compensation shall be ‘exclusively’ as provided in 306 (c)......,” and this just covered the 150 week period for which compensation was to be, and has been, paid.

As held in Lente v. Luci, 275 Pa. 217, under section 306 (c), the term “all disability” includes both total and partial disability, caused by the permanent injury to the members mentioned, or resulting from or related to the permanent injury. It' embraces not only all incapacity to labor, directly or indirectly arising from such permanent injury, whether total-or partial, but, likewise, cases of no incapacity at all. The compensation includes payments while the claimant is undergoing treatment. Payment for the loss of such members, or treatment’ charges, cannot be made under section 306, paragraphs (a) and (b), either for partial or total disability. But section 306 (c) does not include defections to other parts of the physical structure, distinct from the permanently injured member, though directly caused thereby. Compensation may be made for an injury to, de[577]*577struction or affection of, other organs or parts of the body, produced by the permanent injury, causing a disability separate, apart and distinct from that mentioned in paragraph (c). This may be under paragraph (a) or (b): Lenti v. Luci, supra.

When the status of the two major injuries was definitely determined under the term “all disability,” the compensation related back to the first payment; what had been previously paid, awaiting the ascertainment of claimant’s final status, would be deducted from the award under paragraph (c), leaving due, in this case, payments for 255 weeks, at the rate fixed. Where injuries are under process of recovery, the resulting disability for compensation purposes may be partial, total or be compensable under 306 (c); where a temporary injury lapses into a permanent one, causing total loss of the member, the final award comprehends all compensation as a direct result of the injury, including the time under treatment: Lente v. Luci, supra.

The referee ordered, in addition, compensation for “permanent partial disability” to the right wrist. This he computed at 175 weeks for total disability under 306 (a) — he was not under treatment all this time — and 125 weeks for partial disability under 306 (b). The act makes no provision for such a determination under the facts as found in the court below. At the hearing claimant had complete use of the right arm to the wrist, and from it to the tips of the fingers, — there was a slight stiffness at the wrist. But, in fixing compensation for this, the results of his two major injuries — and the compensation claimant was receiving therefor — were entirely ignored, though the use of the arm and leg was absolutely gone; the referee treated the case as if, while undergoing treatment, and up to the time payment ceased, the loss was due entirely to the fractured wrist. To so hold places a value on it higher than the law sanctions for the amputation of the arm below the elbow.

[578]*578There is nothing to show claimant’s total temporary disability while under treatment resulted from any other cause than the two major injuries; the compensation allowed claimant for them under 306 (c) was all the law permitted him to receive from the time the initial settlement was made, to continue during the period stipulated in the award. The act does not' contemplate payments for separate compensable injuries to be made concurrently.

We may assume claimant was entitled to some compensation for disability from an injured wrist. It must, under the express language of section 306, stand on its own foundation; claimant is not entitled to be paid for this partial loss under 306 (b), as that inability (to use his wrist) may be aided, influenced and affected by loss of the leg and left arm. A just determination for the loss of earning power due to the fractured wrist cannot be made without taking into consideration these elements of total disability paid for under 306 (c) during the period covered by such payments. Claimant may in the future be entitled to some compensation for this partial disability, but, when ascertained, it must be separate and distinct from the disability now being paid for in the permanent loss of the leg and arm. In fixing the number of weeks and per cent, the depleted earning power from the injury to the wrist must not include that which comes from other permanent losses. The time must be based on the probability of the partial disability continuing beyond the time now being compensated under 306 (c).

The pay for partial disability under 306 (b) expressly excludes conditions coming within “the cases mentioned in clause (c),” and the reduction of earning power due to incapacities mentioned in 306 (b) must be in addition to that coming from loss under 306 (c). Had claimant been entirely sound, except for the fractured wrist, he would have been entitled to receive exactly the compensation allowed for this partially disabled wrist, or [579]*579fifty per cent of the difference between tbe wages before injury ($17 per week) and those received after ($10). Tbe latter was determined as earning power including all injuries; but, as we have stated, claimant is now being compensated for “all disability” for tbe loss of two members, and it was error to make such an award for disability from tbe injury to tbe wrist.

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Cite This Page — Counsel Stack

Bluebook (online)
121 A. 507, 277 Pa. 573, 1923 Pa. LEXIS 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bausch-v-fidler-pa-1923.