Summary
In Hickey v. Cudahy Packing Co. et al., 153 Pa. Super. 45, 33 A.2d 285, claimant suffered an injury on January 17, 1938.
Summary of this case from Schrecengost v. Heilman Trucking Co.Opinion
April 12, 1943.
July 16, 1943.
Workmen's compensation — Limitation of time for filing petition — Qualification — Acts of June 4, 1937, P.L. 1552 and June 21, 1939, P.L. 520 — Payments to claimant — Compensation or wages — Credits on judgment.
1. Where, at the time an accident occurred, the amendment of June 4, 1937, P.L. 1552, to section 315 of the Workmen's Compensation Act, was in effect, providing that a claim for compensation had to be filed within two years after the accident, subject to the qualification that where payments of compensation had been made such limitation should not take effect until the expiration of two years from the time of making of the last payment; but a claim petition was not filed until after the effective date of the Act of June 21, 1939, P.L. 520, which reduced the period of limitation of the Act of 1937, as well as of the qualification, to one year; it was Held that the act of 1939 was applicable.
2. Payments for services rendered, received as wages, do not toll the limitation of the Act.
3. Where it appeared that, following claimant's collapse, and with knowledge that his serious disability was attributable to an accident in the course of his employment, claimant's employer continued to pay claimant the amount of his regular weekly wages, although he rendered no services to his employer, it was Held that there was evidence to sustain a finding of the board that the payments were received as compensation and not as wages.
4. The reference in section 315, qualifying the limitation and extending the time within which it takes effect, includes voluntary or informal compensation apart from that payable under the Act.
5. Payments of compensation informally made are properly credited to the defendant in a judgment on an award.
Before KELLER, P.J., BALDRIGE, STADTFELD, RHODES, HIRT, KENWORTHEY and RENO, JJ.
Appeal, No. 90, April T., 1943, from judgment of C.P. Mercer Co., June T., 1942, No. 40, in case of Benjamin J. Hickey v. Cudahy Packing Company and The Travelers Insurance Company. Judgment affirmed.
Appeal by defendants from award of Workmen's Compensation Board.
Decision of board affirmed and judgment entered for claimant, opinion by ROWLEY, P.J. Defendants appealed.
T.A. Sampson, of Stranahan, Sampson, for appellants.
Nathan Routman, for appellee.
Argued April 12, 1943.
Claimant suffered a compensable injury in the course of his employment on January 17, 1938. He did not file his claim petition however until March 7, 1940, more than 25 months after the accident. The Board awarded compensation and the lower court affirmed. The question is whether claimant's petition came too late under § 315 of the Compensation Act. By the amendment of June 4, 1937, P.L. 1552, 77 PS 602, in effect at the time of the accident, a claim for compensation was forever barred by the failure to file a petition within two years after the accident, subject to the following qualification: "Where, however, payments of compensation have been made in any case . . . . . . said limitations shall not take effect until the expiration of two years from the time of the making of the last payment. . . . . ." Section 315 of the act relates to procedure only (Senaca v. Yale Towne Mfg. Ca., 142 Pa. Super. 470, 16 A.2d 754) and the period of limitation of the 1937 act, as well as of the qualification, was reduced to one year by the amendment of June 21, 1939, P.L. 520. The 1939 amendment is applicable and if claimant was paid compensation within one year of the date of filing his petition he is within the exception to the general limitation of the act.
Claimant in carrying a quarter of beef tripped over a box, and wrenched his back. The resulting injury was not immediately disabling. He resumed his employment following the accident and, with a loss of but 12 days, worked steadily until July 5, 1939. During this period claimant at times suffered severe pain in his back and he could not perform all of his former duties. In stooping over to pick up a ham on July 5, 1939, he "doubled up and couldn't straighten up any more." After his collapse he was removed to a hospital and later to the Cleveland Clinic. A tuberculous condition was found in the spine at the seat of the injury. The medical testimony is that the injury devitalized the tissues and laid the foundation for the development of the disease. A causal connection between the accident and the resulting disability was conclusively established by the testimony. Following an operation for fixation of the spine, claimant was totally disabled until January 6, 1941, when he returned to work. He was awarded compensation for total disability for the period July 5, 1939 to January 6, 1941.
From the date of the accident until July 5, 1939, claimant received his regular wages of $40 per week. The payments were for services rendered and because they were received as wages they did not toll the limitation of the act. Chase v. Emery Manufacturing Co., 271 Pa. 265, 113 A. 840. But following claimant's collapse on that date and with knowledge that his serious disability was attributable to the accident, defendant continued to pay claimant $40 per week until September 11, 1939, although he was totally disabled and performed no services during the period. It is defendant's contention that these gratuitous payments were made under a fixed policy of the company to continue disabled employees on the payroll for a limited time. What prompted the payments is unimportant. Though equal to his former wages they were not paid to him as wages, for he earned nothing during the period. They were intended to compensate him for loss of earning power and were as much workmen's compensation as if paid as such by agreement. There is ample evidence to support the finding of the board that the payments were received as compensation and not as wages. The finding is conclusive of the question. Somerton v. The Bell Tele. Co. of Pa., 111 Pa. Super. 264, 169 A. 579.
The payment of informal compensation for the period ending September 11, 1939 extended the limitation of the Act to one year from that date and claimant's petition filed on March 7, 1940, was in time. The reference in § 315 qualifying the limitation and extending the time within which it takes effect includes voluntary or informal compensation apart from that payable under the act. Tinsman v. Jones Laughlin S. Corp., 118 Pa. Super. 516, 180 A. 175. Thus in Hunter v. Mailey Fid. Cas. Co., 91 Pa. Super. 350, the time for filing a claim was extended by payments equal to wages to a disabled claimant while he was in the hospital, and in Somerton v. The Bell Tele. Co. of Pa., supra, by payments made to an injured employee from a special fund created for the purpose. See also Cotton v. John Wood Mfg. Co., 126 Pa. Super. 528, 191 A. 189. Elkins v. Cambria Library Assn., 82 Pa. Super. 144, relied upon by defendant, is not applicable. In that case the claimant received her regular monthly salary but she was working and rendering service during the period relied on to extend the time for filing her petition. The payments in that case were wages earned and not compensation for disability.
The judgment entered on the award properly credits the defendant with payments of compensation informally made by the defendant. Long v. Philadelphia, 150 Pa. Super. 631, 29 A.2d 243.
Judgment affirmed.