Opinion
April 19, 1938.
April 29, 1938.
Workmen's compensation — Injury — Eye — Evidence — Partial disability — Practice — Appeal — Remitting record.
1. Where, on appeal by defendant from judgment entered on an award, it appeared that the evidence was insufficient to sustain a finding that the injury to plaintiff's eye amounted to the permanent loss of the use of the eye, for which compensation could be awarded under section 306(c) for the loss of an eye; and that the compensation authorities, having concluded that the injury to plaintiff's eye brought him under section 306(c), had given no attention to the question of partial disability, if any, resulting from the injury; the judgment was reversed and the record remitted to the court below to be re-committed to the board for further hearing and determination.
2. Massett v. Armerford Coal Mining Company, 82 Pa. Super. 579, held controlling.
Appeal, No. 23, April T., 1938, from judgment of C.P. Butler Co., March T., 1937, No. 19, in case of Carl Schultz v. Daugherty Refining Company and Employers' Liability Assurance Corporation.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and RHODES, JJ. Judgment reversed.
Appeal from award of Workmen's Compensation Board.
Appeal dismissed and judgment entered for claimant, opinion by WILSON, P.J. Defendant appealed.
Error assigned was judgment.
David M. Kaufman, with him Leonard H. Krieger, for appellant.
Carmen V. Marinaro, for appellee.
Argued April 19, 1938.
There is no essential difference in the facts between this case and Massett v. Armerford Coal Mining Company, 82 Pa. Super. 579. On the authority of that case the judgment must be reversed. Just as in the Massett-Armerford case the evidence here does not sustain a finding that the injury to the plaintiff's left 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.
The referee and the Board having erroneously concluded that the injury to the claimant's eye brought him under section 306(c) gave no attention to the question of partial disability, if any, resulting from the injury. It is admitted that claimant returned to work on December 16, 1935, so that he is not entitled since that date to compensation for total disability under section 306(a). If he is entitled to any further compensation it must be under section 306(b) relating to partial disability.
Following the Massett-Armerford case the record will be remitted to the Board to consider and determine that question, in the light, however, of our recent decisions. See Sayre v. Textile Machine Works, 129 Pa. Super. 520, 195 A. 786, and cases therein cited.
The judgment is reversed and the record is remitted to the court below with directions to re-commit it to the Workmen's Compensation Board for further hearing and determination in accordance with this opinion.