Stinger v. Rinold Bros. , 1923 Pa. Super. LEXIS 176 ( 1923 )

Opinion by

Trexler, J.,

The claimant was injured while working with his father-in-law, both being in the employ of the defendants. The father-in-law died from the injury received. The claimant was only burned about his hands, and within three weeks the burns had healed. He, however, asserts that the accident left him with shattered nerves. There is a question .whether his condition was due to the shock of his father-in-law’s death, and the realization that he “came so near being dead himself” or from the burns. The compensation board took the latter view. There is no doubt that there was violence t'o the physical structure of the plaintiffs body, and his nervousness may have naturally resulted therefrom. The inference to be drawn from the facts was for the board, and the conclusion arrived at in this case, was reasonable. See Stahl v. Watson Coal Co., 268 Pa. 452; Watson v. Lehigh Coal & N. Co., 273 Pa. 251.

The accident occurred October 11, 1920. Compensation was paid until January 19, 1921. The employer then presented a petition to terminate the agreement, notice was served upon the claimant who filed no answer, and on the 16th of February, 1921, the referee terminated the agreement upon the assumption that the facts alleged in the petition being unanswered, were true. Act of June 26, 1919, P. L. 642, section 416. On April 21,1921, the claimant filed a petition to review the agreement, alleging that the referee had terminated it by mistake, and after the taking of testimony, the agreement was reinstated. The appellant contends that the termination of the agreement by the referee being unappealed from (section 423) the matter can only be reopened upon allegation and proof of a change in the condition of the injured, citing section 413 of the above act. The commission found that1 the physical condition of the claimant was such at the time the hearing was held upon the petition to terminate the agreement, that he was unable to attend, and furthermore he was under the mistaken impression that the physician had told the defendant company of his continued disability. It would be hard if such a slip on the part of a sick man should prevent him from getting compensation for the injury still existing, but disregarding this there is good legal ground to sustain the action of the commission. The matter of compensation is not finally closed as long as the term of the agreement1, or the award has not expired. In Gairt v. Curry Coal Mining Company, 272 Pa. 494, the statement of the chairman of the compensation board is quoted with approval “The act gives; the board jurisdiction over an agreement [for the purposes of review] at any time during the life of the agreement or during the period of the time [it has] to run.’7 The Supreme Court further on in the same case states “the relevant legislation clearly contemplates that, after a compensation agreement has been filed, or an order for compensation made, persons affected may apply for review and modification during the time the agreement or order has to run: ......article IV, section 408, and particularly article IV, section 413, Act of 1919.77

The appellant1 attaches entirely too much importance to the fact that the claimant allowed an award terminating the disability to go against him owing to his inaction. Had the appellee attended the hearing fixed for the consideration of the termination of the agreement, and had he acquiesced in the finding that his disability had ceased and thereafter his ailment had reappeared, lie would not have been precluded in showing that the finding that his disability had ended was a mistake. Shall we give greater force to a finding entered by default than if it had been entered after a full hearing? All the award decided was that at the time the finding was made, the disability had apparently terminated. When it recurred, the board had a right to reinstate the claim. Section 413.

The assignments are all overruled, and the judgment is affirmed.