Wills v. Stineman Coal & Coke Co. , 170 Pa. Super. 446 ( 1952 )

170 Pa. Super. 446 (1952)

Wills, Appellant,
v.
Stineman Coal & Coke Co.

Superior Court of Pennsylvania.

Argued November 14, 1951. March 18, 1952.

Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.

George Jerko, with him Llewellyn E. Lloyd, for appellant.

Francis A. Dunn, for appellee.

OPINION BY RENO, J., March 18, 1952:

On December 15, 1942, appellant's right leg was crushed in a coal mine accident. An open compensation agreement was executed on December 28, 1942, under which payments for total disability were made for 179 weeks at $18 a week. On June 4, 1946, the employer petitioned for a modification and the referee modified the agreement to provide payments for 55% partial disability as of May 27, 1946. Payments at the rate of $11.79 were made for the remainder of the 300 week period which ended on September 20, 1948, when appellant signed the final receipt. He received a total of $4648.59.

A sinus condition developed at the site of the fracture of the right tibia and on September 7, 1949, he was hospitalized for treatment. On October 14, 1949, the right leg was amputated 6½ inches distal to the knee joint. By December 12, 1949, the stump was completely healed and appellant was discharged from the hospital. Appellant's injury was confined to the right leg area and no other organs or parts of his body were affected. On January 9, 1950, almost 16 months after the last payment of compensation, he petitioned for an order to set aside his final receipt and for reinstatement of compensation, claiming that the amputation entitled him to additional payments as for a total disability from September 7, 1949 to December 12, 1949. The compensation authorities, affirmed by the court below, denied his claim, and this appeal followed. The judgment will be affirmed.

The Workmen's Compensation Act, § 306, as amended by the Act of June 21, 1939, P.L. 520, § 1, 77 P.S. § 511, et seq., which was in force when the accident occurred, provides compensation for (a) total disability for a maximum period of 500 weeks, (b) partial disability for not more than 300 weeks, and (c) permanent injuries to certain parts of the body. For the loss of a foot the compensation under (3) is 66-2/3% of wages for 150 weeks, and amputation between the knee and ankle is equivalent to the loss of a foot. For the permanent injuries classified in clause (3) the compensation therein provided is exclusive and covers "all disabilities" resulting therefrom; and the compensation provided in (a), (b) and (c) "run concurrently." See Moran v. Glen Alden Coal Co., 154 Pa. Super. 608, 36 A.2d 845.

Had the leg been amputated immediately or shortly after the accident or during the 300 or 500 week period thereafter ensuing, appellant's claim would have been limited to the compensation provided by § 306(c). Sharcheck v. Beaver Run Coal Co., 275 Pa. 225, 119 A. 135; Croll v. Miller, 133 Pa. Super. 448, 2 A.2d 527; Flood v. Logan Iron & Steel Co., 136 Pa. Super. 101, 5 A.2d 621; Maher v. New Castle Grocery Co., 138 Pa. Super. 310, 10 A.2d 837; Hayden v. Stony Spring Coal Co., 157 Pa. Super. 423, 43 A.2d 384; Demin v. Yellow Cab Co., 166 Pa. Super. 199, 70 A.2d 417. He would have been entitled to compensation for 150 weeks at $18 per week or a total of $2700 instead of $4648.59 which he actually received.

Amputation of the leg after appellant had received compensation under clauses (a) and (b) does not entitle him to further or additional compensation. The Act provides and the cases hold that § 306(c) provides the exclusive and sole compensation for all disabilities arising from the loss of a member. "Where an employee has lost the use of a leg as the result of a compensable accident, he is not entitled to additional compensation for total disability under section 306(a) . . . unless the injury extended beyond the leg": Hayden v. Stony Spring Coal Co., supra, p. 424. Moreover, compensation payments under (a), (b) and (c) run concurrently, and where an employe has been fully compensated under (a) or (b) he cannot claim additional compensation under (c). Olinsky v. L.V. Coal Co., 93 Pa. Super. 221; Rocco v. Penna. Coal Co., 93 Pa. Super. 224. That is to say, where an employe sustains an injury resulting in either total or partial disability for which he is compensated and in the same accident suffers the loss of a member, compensable under § 306(c), the amount payable for the latter will not be added to the compensation paid for total or partial disability.

In the court below appellant relied upon Lente v. Luci, 275 Pa. 217, 119 A. 132, but his injury did not extend beyond the leg area and that case is not applicable to this factual situation. Here he relied upon Hopshock v. Hackmeister, Inc., 140 Pa. Super. 384, 14 A.2d 374, and Bauman v. Spokas, 146 Pa. Super. 530, 23 A.2d 211. The first case is not controlling because there was no loss of the use of the affected member, and the second rules that permanent loss of the function of a member is a permanent injury within the meaning of § 306(a).

Finally, under any theory, appellant cannot recover. His petition for reinstatement was filed too late. In it he averred: "I am now totally disabled." This may be accepted as the equivalent of an averment of increased or recurrent disability, and in this Court appellant's counsel based his case upon the ground that total disability had recurred. But a petition for reinstatement because of recurrent disability must be filed within one year after the last payment of compensation. Act, supra, § 413, 77 P.S. § 772. Bucher v. Kapp Bros., 110 Pa. Super. 65, 167 A. 652; Roberts v. John Wanamaker, 151 Pa. Super. 297, 30 A.2d 189; Mouhat v. Board of Public Education, 159 Pa. Super. 423, 48 A.2d 20. For that reason alone appellant's case must fail.

Judgment affirmed.