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Full text of "Pennsylvania. Workmen's compensation board. Decisions of the Pennsylvania Workmen's compensation board .."

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I 



HARVARD LAW LIBRARY 



^^0**i<.*^AAt^^ 1 Vj$TW-'^JtAAyi,<lJZ"j*"^\^ v * A! " 



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R «o,«d FEB 2 4 1923 



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VOLUME VI 



DECISIONS 



Pennsylvania. Workmen's Compensation 

FOR THE YEAR 1921 



IB80ED BT THE 

WORKMEN'S COMPENSATION BUREAU 

OF THE DEPARTMENT OF LABOR AND INDUSTRY 

Harrisbnrg, Pa. 



THE WORKMEN'S COMPENSATION BOARD 



HARBY A. KACKEY, 



LEE SOLOMON, B 



r^ 



^ 



HARRISBURG. PA.: 
J. L. U KTJHN. PRINTER TO THE COMMONWEAWH, 

1022 

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FEB 2 4 1923 



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CONTENTS. 



Workmen's Compensation Districts, . 

Table of Uases 

Table of Abbreviations, 

Decisions of the Board, 

Iuder. 



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WORKMEN'S COMPENSATION DISTRICTS. 



District No. 1. Philadelphia, Bucks, Chester, Delaware and Mont- 
gomery Counties. Referees: Warren C. Graham, 
Charles W. Hosier, Manhattan "Building, 4th and 
Walnut Streets, Philadelphia. 

District No. 2. Berks, Schuylkill, Lehigh, Carbon and Northampton 
Counties Referee: Thomas C. Seidel, Ulmer Build- 
ing, 207 North Center Street, Pottsville. 

District No. 3. Lackawanna, Wayne, Susquehanna, Pike, Monroe 
and Wyoming Counties. Referee: George W. Bee- 
mer, Union National Bank Building, Lackawanna 
and Washington Avenues, Scran ton. 

District No. 4. Lebanon, Dauphin, Lancaster, York, Adams, Frank- 
lin, Cumberland, Juniata and Perry Counties. 
Referee: Chester W. Cuiumings, WooHorth Build- 
ing, Grant and Queen Streets, Lancaster. 

District No. 5. Sullivan, Bradford, Potter, Tioga, Lycoming, Union, 
Snyder, Miillin, Clinton, Centre and Cameron. 
Counties. Referee: W. W. Champion, First Na- 
tional Bank Building, 21 West Third Street, Wil- 
li amsport. 

District No. li. Huntingdon, Bedford, Somerset, Blair, Fulton and 
Cambria Counties. Referee: Jacob Snyder, Com- 
merce Buildiug, 1434-3(1 Eleventh Avenue, Altoona. 

District No. 7. Erie, Warren, Mercer, Crawford, McKean, Elk, 
Forest and Venango Counties. Referee: G. Scott 
Smith. Kane Trust & Savings Co. Building, 87 Main 
Street, Kane. 

District No. 3. Allegheny, Fayette, Westmoreland, Greene, Butler, 
Lawrence. Washington and Beaver Counties. 
Referees: L. E. Christley, Harry B. Henderson, 
Fulton Building, 107 Sixth Street, Pittsburgh. 

District No. 1). Luzerne, Montour, Columbia and Northumberland 
Counties. Referee, Asa E. Lewis, Hollenback Coal 
Exchange Building, Market and River Streets, 
Wilkes- Rarre. 

District No. 10. Jefferson, Clearfield. Indiana, Armstrong and 
Clarion Counties. Referee: Gus M. Gleason, Mc- 
Donald Building, 243 West Long Avenue, DuBois. 



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■ DlgilizeliDv GoOgle 



This volume contains the official reports of cases 
decided by the Workmen's Compensation Board of 
Pennsylvania from January 1, 1021, to December 
31, 1921, inclusive. 



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TABLE OP CASES REPORTED fN THIS VOLUME. 



Adams v. Pittsburgh Plate Glass Co 377 

Adams Express Co. — Kemmcrting v . . 245 

Aetna Foundry — Michaeles v. 400 

Alehoff v. Philadelphia & Reading Coal & Iron Co 172 

Alden Coal Co.— Shad v. 42 

Allegheny By-Producta Co. — Bomman v 307 

Allegheny Garbage Co.— Rudar v 361 

Allen t. State Workmen's Insurance Fund, 304 

Allen town Packing Box Co.— Broadbent v 400 

Almonte v. Congoleum Co 397 

American Bridge Co. — Rick v 372 

American Car & Foundry Co. — I'enkowsky v SKI 

American Chain Co. — I'avis v. .'108 

American International Shipbuilding Corporation — Cnrlin v ;|IH 

American International Shipbuilding Corporation — Churovich v. 390 

American International Shipbuilding Coiroration — Crutchley v., 304 

American International Shipbuilding Corporation — Evans v '!!K 

American International Shipbuilding Corporation — Hall v !Hf 

American International Shipbuilding Corporation— Hoch man v., 3Sf 

American International Shipbuilding Corporation — McCormick v 3M 

American International Shipbuilding Co rpo ratio n— McFanl v. DC 

American International Shipbuilding Corporation — Weissinger v. 39f 

American International Shipbuilding Corporation — Yetter v. 301 

American Railway Express Co. — Cawley v. 394 

American Railway Express Ce. — Kerwin v., 304 

American Railway Express Co.— Madole v. 398 

American Reduction Co. — Speaker v 18t 

American Sheet e\ Tin Plate Co.— Reed v 306 

American Stores Co. — Cair v. 390 

American Stores Co. — Morton v 308 

Amnion v. Diamond Coal & Coke Co. 128 

Anacardo v. Walker Foundry Co., 344 

Anderson v. Jones & Laughlin Steel Co 39E 

Andorci Nurseries — Picuinas v. 30E 

Angello v. Philadelphia A Reading Coal & Iron Co 15" 

Anschau v. Nazareth Brick Co 32t 

Arasham v. Buck Ridge Coal Co 304 

Artinik v. Cambria Steel Co. 26( 

Atlantic Fruit Co.— Pooley v., 391 

Atlantic Refining Co.— Battaglia v SOI 

Atlantic Refining Co. — Manning v., 73 

Atlas Powder Co.— Farley v.. 8M 

Attman v. Roydhouse-Arey Co., 39E 



Itacha v. Barnes & Tucker 306 

Itachman. Rudert' & Co.— Stnjmatos v ("nOOT? 8 



10 

Bair v. Stale? Bros .*. 

Baizley, John, Iruii Works — Nnpoliello v , 

Baker v. Fetter, 

Baker v. Mellon-Stuart Co 

Baidoff, et al. v. State Workmen's Insurance Fund, . . 

Baldwin Locomotive Works — Berry v 

Baldwin Locomotive Works— DileH v 

Baldwin Locomotive Works — Harris v 

Baldwin Locomotive Works — Martin v 

Baldwin Locomotive Works — Morgan v. 

Baldwin Locomotive Works — Nell v 

Backs v. Fink Co 

Barber Asphalt Paving Co.— Costa v., 

Barber Painting Co. — Murphy v., 

Barclay v. Jones & Luughlin Steel Co., 

Baruea & Tucker — Bachn v., 

Barrett — Borer v 

Barrett Co. — Boss v 

Barrett Co. — Honiara v 

Barron-v. Lehigh Valley R. It. Co 

Barton — Finbelstein v 

Barton v. State Workmen's Insurance Fund, 

Bass v. Barrett Co., 

Bastia v. Delaware, Lackwanna & Western- R. R. Co.. 

Battcglia v. Atlantic Refining Co. 

Bntson v. Young Men's Christian Association, 

Baumgardner v. State Workmen's Insurance Fund 

Realty v. Turner Construction Co 

Beebormon v. Jacob Reekerman 4 Souk 

Beckerman, Jacob & Sons — Beckermun v 

Bcgliomini v. Pittsburgh & Eastern Coul Co 

Bell v. H. C. Frick Coke Co. 

Bell Hotel Corp.— Clark v 

Betlomo v. Idtmar Coal Co. 

Bells Mill Coal Co.— Palmer v 

Belmont Iron Works — Redmond v., 

Bender v. Delaware River Steel Co 

Bender v. Miller. 

Bennett v. Philadelphia & Rending Ry. Co., 

Benson v. Jones & Languid Steel Co., 

Berardiui v. Mellon-Stuart Co., 

Berriman v. ixirain Steel <.'t>„ 

Berry v. Baldwin Locomotive Works 

Uerwind-Wliite ("oal 'Mining Co. — Drjmissin v 

Best v. Ilempfiehl Foundry 

Bethlehem Foundry & Machine Co.— Mullen v., 

Bethlehem Steel Co. — Bycrs v 

Bethlehem Steel Co. — Gonsales v., 

Bet onto v, Mastcn Coal Co., 

Billingsley v. Lehigh Structural Steel Co., 

Blrdsboro Steel Foundry & Mnrh'ne Co.— Cnauccio v., 

Black v. Blaek Drilling Co. 

Black Drilling Co.— Black v., 

Blackwell v. Lehigh Valley R, R. Co., 



11 

Bolin v. Semet-Solvay Co 

Bolton v. Corning Glass Works 

Bom man v. Allegheny By-Products Co 

Bond v. Lakeside Forge Co., 

Borer v. Barrett, 

Borough of Hanover — Swartz V 

Bough v. Crown Auto Painting Co., 

Boyce v. Wm. Cramp & Sons Ship & Engine Building C 

Boyle v. McDcrmott Bros., 

Bradenrille Coal & Coke Co. — Hare v. 

Bradenville Coal & Coke Co.— Siko v., 

Bradford Brick & Tile Co.— Piscttelli v 

Breneman — Grossman v., 

Breuneman v. Walton, 

Brick v. David Lupton Sons Co., 

Bricker, et al.— Ruth v 

Brondbent v. Allen town Pocking Iloi Co 

Bromonto v. Philadelphia & Reading Ry. Co 

Brooker, L. Needles, 1 Co. — Portnoy v., 

Brown v. Pennsylvania R. R. Co 

Bryant v. Murphy, Cook & Co., 

Bryn Mawr Ice Manufacturing & Cold Storage Co. — Coi 

Buck Ridge Coal Co.— Arasham v., 

Buck Ridge Coal Co.— Ozoga v 

Buck Run Coal Co. — Holob v 

Buck Run Coal Co. — Nany v 

Buck Ron Coal Co.— Wenrich v 

Burlcl, Edw. C, Manufacturing Co. — Koenig, 

Budd Wheel Corporation— Thies v 

Budgnskey v. Union R. R. Co., 

Buffalo, Rochester & Pittsburgh Ry. Co.— Nicholson v., . 

Burgoyne v. Pittsburgh Coal Co., 

Burton v. McLaughlin Contracting Co. 

Butronavage v. Locust Mountain Cool Co., 

Byers v. Bethlehem Steel Co. 

Bye™, A ,M., Co.— Marks v. 

Byeriy v. Turner Construction Co 

Byron, W. D., & Sons, Inc. — Mulnix v., 



Cabaret v. Poland Coal Co 78 

Calderwood v. City of Altoono 204 

Caldibclli v. State Workmen's Insurance Fund 72 

Callihan v. Montgomery * 32 

Cambria Steel Co.— Artinik v 266 

Cambria Steel Co.— Chnhulsky v., 399 

Cambridge Cool Co. — I'eriimbo v 398 

Cajapenella v. Tibbj-Brawmr Glass Co 304 

Cardan v. Hrrniiton Bolt & Not Co 174 

fo'lhi v. American Intcrnntiiuuil Shipbuilding Ooi[Kir:ilion 394 

Carlin v. Coxe Bros. & Co 185 

Carnegie Steel Co.— Riley v., 108 

Carnegie Steal Co. — Shannon v., 266 

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Pt 

Carnegie Steel Oo. — Sojko v. 

Carnegie Steel Co. — Stephens v 

Carnegie Steel Co.— Wesley v 

Carr v. American Stores Co 

Carroll v. Thompson : 

Oartwright v. W, S. George Pottery Co I 

Casey, John F., (!o. — Charsikirkos v., ; 

Casuecio v. Birdsboro Steel Foundry & Machine C ' 

Cawley v. American Railway Express Co ; 

Central Cod Co. — Patinga v., .■ 

Central News Co.— Getty v 4 

Chahnlsky v. Cambria Steel Co J 

Choppers v. Merchant Shipbuilding Corporation, f 

Charsikirkos v. John F. Casey Co :■ 

Chase v. Sergeant Class Co ? 

Cheely v. Westmoreland Coal Co " 

Chester v. Vesta Coal Co 1 

Ckupek v. Delaware & Hu<lson R. R. Co.. ■ . 3 

Cburovich v. American Interactional Shipbuilding Corporation 3 

Cirigliana v. Pennsylvania R. R. Co 3 

City of Altoona — Calderwood v 2 

Clare Manufacturing Co.— Pvipp v ) 

Clark v. Bell Hotel Corporation 3 

Clarke v. Clearfield Opera House Co., S 

Clearfield Opera House Co.— Clarke v J 

Clement v. Proctor & Schwartz. Inc., 9 

Clinton Iron & Steel Co.— Slater v 2> 

Clydesdale Bricft & Stone Co.— H&ynes et &1. v a 

Clydesdale Brick & Stone Co.— Morocco, et nl. v 1( 

Coal Run Mining Co. — Lorenzo v. 2" 

Oohfl — Peaaley v. ft 

CoUins v. Hale & Kilbnrn,. X. 

Colonial Life Insurance Co. — Riser v 3! 

Columbia Textile Co.— Petroski v .1! 

Connellsvi.il e Central Coke Co.— Ford et nl. v. 1 

Conner — Miller v 3! 

Congoleum Co. — Almonte v., 31 

Connors v. Bryn Mawr Ice Manufacturing & Cold Storage Co., JH 

Connors v. Heppenstall Forge & Knife Co 3J 

Cook— Swift v., 3£ 

Ooplan v. Puritan Chemical Co., 3t 

Corning Glass Works— Bolton v. 3t 

Costa v. Barber Asphalt Paving Co 20 

Costclla v. State Workmen's Insurance Fund 4C 

Counseller v. Wm. Cramp & Sons Ship & Engine Building Co M 

Coxe Bros. & Co.— Cnrlin v 16 

Cramer & Roller — Richman et al. v. M 

Cramp, Wm. & Sons Ship & Engine Building Co.— Boyce v 40 

Cramp, Wm. * Sons, Ship A Engine Building Co. — Counseller v 3!) 

Cramp, Wm. & Sons, Ship & Engine Building Co.— Fillip v 83 

Cramp, Wm. & Sons. Ship & Engine Building Co.— Hanlon v n 

Cramp, Wm. & Sons, Ship & Engine Building Co.— Kowatxki v 38 

Crane v. Presbytery of Lackawanna 30 

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Page. 



Crawford v. New York & Pennsylvania Co, 807 

Creasy v. Phoenii Utility Co 120 

Cripiien v. Porter 394 

Critclilow v. Steen, 19(1 

Cross Keys Restaurant— Roddy v., 398 

Urossloy v. State Workmen's Insurance Fund. 395 

Crown Auto Painting Co. — Bough v 115 

Crutchley v. American International S-i'i-liuitUiuj Corporate. 394 

Cummings — West V 175 

Currnn v. Drueding Eros. Co., ' 396 

Curtis Publishing Co.— Farran v 369 

Curtis Publishing Co.— Owens v 84 

1> 

Daniels v. Pittsburgh Coal Co., 400 

Darkwater Coal Co.— Motley v., 400 

Davenport v. Keystone Wcgon Works, 63 

Davis v. Pennsylvania R. R. Co 340 

Davis Automatic Cradle Co.— IIeuder>dn.t v 400 

Day & Zimmerman — Varga v., 75 

I>cUart v. Liberty Rag Co. -. 394 

Delaware & Hudson R. R. Co.— Clmpek v. 395 

Delaware, Lackawanna & Western R. R. Co. — Bastia v., 334 

Delaware, Lackawanna & Western R. R. Co. — Gibbons v 132 

Delaware, Lackawanna & Western U. R. Co. — Keegnn v 70 

Delaware, Lackawanna & Western R. R. Co. — Keteski v 396 

I>elaware, Lackawanna & Western R. R. Co.— Lavinski v, 144 

Delaware, Lackawanna & Western R. It. Co.— Lubanski v • 146 

Delaware, Lackawr.nna & Western R. R. Co.— Pyriek v., 390 

Delaware, Lackawanna &, Western R. R. Co. — Saydock v., 254 

Delaware, Lackawanna. 4 Western R. R. Co. — Scanlon v., 48 

Delaware, Lackawanna & Western R. R. Co. — Vendryohowicz v. 103 

Delaware River Steel Co. — Bender v 394 

Dellapenna v. Tlillman Coal & Coke Co., 394 

Deloksovich v. Pittsburgh Coal Co 397 

DeLong & Fox v 394 

1 ii'Isn v. Pennsylvania Coal & Coke Corporation 292 

Demuaio v. Berwind-Wbite Coal Mining Co., 281 

1 >epietrantonio v. Kelly & Jones Co., 193 

Detrick v. Philip Morton Co. 394 

Dcwitt v. W. H. Hughes Coal Co 394 

Deviiie v. Standard Construction Co., 397 

I >iamond v. Friends Institute for Feeble-Minded, 396 

Diamond v. Yorkshire Worsted Co., 122 

Diamond Cod & Coke Co. — Ammon v 129 

Dickson v. Lehigh Valley Coal Co 128 

Diehm v. Philadelphia & Reading Ry. Co., 396 

Dilez v. Baldwin Locomotive Works, 242 

Dill & Collins— Zonfin v., 399 

Diskln v. Hudson Coal Co., 397 

DoJierty v. Railway Steel Spring Co 100 

Dolter v. Fredericb, 396 

Donaldson — Peal v., _, 401 

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Page. 

Donnelly v. Mc Arthur Broa. Co., 894 

Donahue v. Fletcher Works, 350 

Drake v. Northwestern Mining & Kxolimige Co., 118 

. Dravo Contracting Co. — Snyder v 140 

Drueding Broa. Co. — Curran v 396 

Drueding Bros. Co.— McCloughtou v 200 

Drugn v. Mather CollericK Co., 394 

Dull v. Rohn Bros. 182 

Dunlap v. Rochester & Pittsburgh Co«l & Iron Co 397 

Duqueano Light Co. — Lnngin v 398 

Durain v. State Workmen's Iusiirauif Fund 394 

Durcot v. Knickerbocker Coal Co 127 



Earley v. Pennsylvania Coal Co. 

Eastern Coal Dock Co.— Whelen v. 

Euston Brass & Machine Co. — Seas v 

Ebcrl v. A. C. & WUlicm Han, 

Edds v. Kinney, 

Eiehleny, John, Jr., Co. — Kenny v., 

Eichleiiy, John, Jr., Co. — Turner v 

Elk Tanning Co. — Snyder v., 

Ellsworth Collieries Co. — Yorkers v., 

Ellnood Lumber Co. — Stimiison v 

Empire Iron & Steel Co. — L<ibenap«rgor v., 

Englemann v. Pennsylvania R. R. Co 

Equitable Coke Co. — Pobloskie v 

Equitable Illuminating Gas Light Co. — Lukowski v, 

Erb v. Philadelphia * Reading Ry. Co. 

Erie Specialty Co.— Purdy et al. v 

Etna-Connellsville Coka Co.— Friedrich et al. v 

Evans v. American International Shipbuilding Corporation. . 

Everett v. Hudson Coal Co., 

l£wd v. Mnrphy, Conk & Co 

Excelsior Laundry Co. — Thomiison v., 



Fabian v. H. C. Frick Coke Co. £ 

Falat v. Ueclu Coal & Coke Co. 3f 

Farley v. Atlas Powder Co., 3) 

Farran v. Curtis Publishing Co St 

Fay v. Pennsylvania R. R. Co & 

Felin, John J., & Co.— Kube v., 31 

Felty v. Hockcnsmith Wheel & Mine Car Co ~. 3i 

Feraliski v. Pennsylvania R. R. Co, '. 

Ferdisko v. W. F. Trimble & Sons Co., 31 

Fetrow v. Harrisburg (ins Co., 3! 

Fetter— Baler v 3t 

FUipiele v. State Workmen's Insurance Fund 35 

Fillip v. Wm. Cramp & Sons Ship & Engine Building Co SI 

Fink Co. — Banks v 2£ 

Finkelstein v. Barton 4f 

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1*> 

Pegi-. 

Fisher — Mollenkopf v., 401 

Fletcher Works— Donobue v. 358 

Floyd v. Hazel Coal Co., 01 

. Ford et al. v. Connellsville Central Coke Co 94 

Forgin v. Pennsylvania Coal Co 60 

Etonian v. State Workmen's Insurance Fund 401 

Fossett— French v. 307 

Foulk v. Treverton Colliery Co., 324 

Foundation Co.— Lutz v. 47 

Fox v. DeLong & Fox 304 

Fratikowaki v. W. B. McClenn Manfacturing Co 304 

Fravel, et al. v. J. Edward Home & Co., 304 

Frederich— Dolter v 390 

Freeman v. State Workmen's Insurance Fund 304 

Freihofer Baking Co.— Holt* v., 390 

French v. Focsett 307 

Prick, H. C, Coke Co.— Bell v. 394 

Frick, H. C, Coke Co.— Fabian v., 57 

Friedrleh et al. v. Etna— Connellaville Coke Co 1«4 

friends Institute for Feeble-Mi nrleil- -Diamond v 306 

Frommer v. Wanamaker 400 

Proncak v. Imperial Woolen Co 390 

Fuitz et al. v. Truscon Steel Co., 394 



Gallagher v. Mellatton Foundry Co 

Garvin v. Oliver Iron & Steel Co 

Ueery v. Standard Refractories Co 

Gelgood v. Gelgood BroH., 

Gelgood Broa. — Gelgood v., 

General Electric Co. — Johnson v., 

Genoa v. Lehigh Portland Cement Co., 

George, W. S. Pottery Co.— Cnrtwright v 

Getty v. Central News Co., 

Gibbons v. Delaware, Lackawanna & Western It. li. ' 

Gibbons v. Gibbons, 

Gibbons — Gibbons, v. 4 

Giffert v. Stale Workmen's Insurance Fund 

Gilmore v. Murphy 

Giordano v. Westinghousc Electric & Manufacturing < 

Glassmire — Schultz v., 

GonsaJes v. Bethlehem Steel Co 

Gramm v. Zion Reformed Chunch, 

Granger v. Philadelphia Rapid Transit Co 

Grobnakie v. Sbipman Coal Co., 

Grossman v. Breneman 

Guthrie v. Thompson- Ster re !t Co 

Gryger v. Merwin Manufacturing Co. 



Ho/felfinger Wall Paper Co— SchultK v 
Hahn v. Lehigh Valley R. R. Co., 
Hale & Kilburn— Ctllins v. 



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16 

Haley T. Pennsylvania It. 11. Co., 

Hall v. American Interactional Shipbuilding Corporation, . . . 

Hammer — Serlick v 

Handlon — Smiley v ■ 

Hanlon v. Wm. Cramp & Sons Ship & Engine Building Co., . 

Banna v. W. L. & R. B. Matthews, 

Harbison-Walker Refractories Co. — Snyder v 

Hare v. Bradenville Coal 4 Coke Co., 

Haling v. Roydhouse-Arey Co., 

Harrington v. H. 0. Wilbnr A Sons, Inc. 

Harris v. Baldwin Locomotive Works, 

Harrisburg Gee Co. — Fetrow v., 

Harrisburg Pipe & Pipe Bending Co.— rWonderly v 

Harrison v. Mercer Iron & Coal Co., 

Han, A. a & William— Eberi y. 

Haxton v. O'Brien Bros. A Rees., 

Hayes Wall Paper Co, — Ugino v 

Haynes et si. v. Clydesdale Brick & Stone Co 

Hazel Atlas Glass Co.— Koboski v 

Hazel Coal Co*— Floyd v 

Heda Cosl & Coke Co.— Feiat v. 

Hempfield Foundry — Best v. 

Hendershet v. Davis Automatic Cradle Co., 

Heppenstall Forge ft Knife Co. — Connors v., 

Heppeustall Forge & Knife Co. — Laker v., 

Hertsberg — Redeman v., 

Hassler Laundry Co. — James v. 

Heyl & Patterson— Lahm v., 

Hill man Coal & Coke Co. — Dellapenna v., 

Biwiller v. Pittsburgh Plcte Glass Co, 

Hochman v. American International Shipbuilding Corpora! io 

Bockensmith Wheel & Mine Car Co.— Felty v 

Hokolo v. Pennsylvania Smelting Co 

Holob t. Buck Bun Coal Co 

Bolts v. Freihofer Baking Co 

Home-Crest Mills Corporation — Pcarsall v. 

Home Life Insurance Co. — Philbin v 

Hoopes & Townsend — Shudo v. 

Hoopes & Townsend — Tinkleman v. 

Home, J. Edward & Co. — Fravel, et aL v. 

Hotel Henry Co.— McCarthy v. 

Bore, et al. v. D. L. Ward Peper Co 

Hudson Coal Co.— Diakin v., 

Hudson Coal Co.— Everett v 

Hudson Coal Co.— Kollar v 

Hudson Coal Co.— Lloyd v., 

Hudson Coal Co.— O'Boyle v 

Hudson Coal Co.— Osika, v 

Hudson Coal Co.— Petsego v. 

Hudson Coal Co. — Sartoni v., 

Huey v. Solsson, 

Hughes v. Pressed Steel Car Co., 

Hughes W. H. Coal Co.— Devett v. 



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Page. 

Hunter v. Win. Sell.-™ * Co 396 

Hyde— Van Luven v 308 



luamar Coal Co.— IMlotuo 

Imperial Woolen Ci>. — Kroncck v., 
Independent Pier Co.— Osborne > 

Ingeraoll-Rand Co.— King v 

Ironside v. N. B. Slack ft Son, . 
Irwin ft Lebighton — Mnrttild v., 
Ivory v. Pen nock 



Jacob)- — Strempnunsky v 

James v. Hesalar Laundry Co., 

Jersey Cereal Food Co. — Solomon v., 

Jesulcs v. VestB Coal Co., 

Jewell v. Phoenix Iron Works 

Jorst v. State Workmen's Insurance Fund, 

Johnson v. General Electric Co., 

Jtlinson v. Shoemaker Coal Mining Co 

Johnston v. Pennsylvania R. R. Co 

Jones & Laughlin Steel Co. — Anderson v., . . 

Jones & Laughlin Steel Co. — Barclay v 

Jones & Laughlin Steel Co. — Benson v 

Jones ft Laughlin Steel Co. — McCoy v., 

Jones ft Laufihlin Steel Co. — Stringer v., . . . 

Jones & Langhlin Steel Co.— Sustch v., 

Jordan v. South Pork Coal Mining Co 

Josephite v. Pittsburgh Coal Co., 

Judge v. VanTive 



Karmanis v. Lucius Engineering Co., 307 

Kasko v. Kcn*bey it Mnttison Co 396 

Kasperaviob v. Lehigh Valley Coal Co 400 

Keiiley v. U. S. Aluminum Co., 87 

Keasbey & Mattison Co.— Kasko v 396 

Keegan v. Delcwaro, Lackawanna & Western K. I(. Co 70 

Kelly v. Watson Coal Co 88 

Kelly & Junes Co. — Depict run to mo v., 193 

K»ramerling v. Adams Express Co. 245 

Kenny v. John Eichleay Jr. Co., .■ 123 

Keppennan, Jos. & Sons — Leeso v., 401 

Kerestan v. Vesta Coal Co IBS 

Kerwin v. ^ mericau Railway Express Co., 394 

Keteski v. Delaware, Lackawanna 4 Western R. R. Co 396 

Keystone State Construction Co.— Vannon v ., 400 

Keystone Trap Rock Co.— She! ton v 400 

Keystone Wagon Works— Davenport v 63 

Kindall v. Pennsylvania R. R. Co., 896 

King v. Ingcrsoll-Raud Co. , 401 

King v. Levin 400 

2 Domed t* Google 



IS 

Pace. 

King v. Rainry-Wood Coke Co 307 

Kingston Con! Co.— Napierkoakle ct nl. v., 351 

Kingston Coal Co.— Koliestrevn v., Xili 

Kinney— Etlds v ' 1511 

Kinsell v. United Iron & Steel Co 396 

- Kiskiminetas Springs School— Roslosnik v., 305 

Kistler, Leah & Co.— Smith v 305 

Knickerbocker Coal Co. — Dureot v. 127 

KoboskI v. Hazel Atlaa Glass Co 400 

Kocnig v. Bdw. G. Bndd Manufacturing Co '. 300 

Kohn— Sulxbnch v. 360 

Koliestreva v. Kingston Coal Co., 352 

Kollar v. Hudson Coul Co 401 

Kopchak v. Lincoln Gas Coal Co., 93 

Koscrclnif.k v. Tlios. Wolstcnliolmc & Hous 399 

Kosnovich v. Lehigh Valley Coal <"o 397 

Kovalski v. Mt. Pleasant Connellsville Coke Co. 397 

Kowulski v. Win. Cramp & Sons Ship & Engine Building Co 399 

Kric v. State Workmen's Insurance Fund, 306 

Kube v. John J. Fclin & Co. 394 

Kwctkauskie v. Lehigh Valley Coal Co 304 



Lnhm v. Hcyl 4 Patterson ', 

Laker v. Heppenstall Forge & Knife Co 

Lakeside Forge Co. — Bond v '■ 

Langin v. Duquesne Light Co '. 

LimtLski v. Delaware, Lackawanna & Western R. R. Co., ' 

Leatuy v. Norristown Service Oarage, • 

leaner v. Pennsylvania R. R. Co. .' 

Lerse v. Jos. Keppcrman & Sons < 

Lehigh Cou1 & Navigation Co. — Watson v ; 

Lehigh Portland Cement Co. — Genoa v. J 

Lehigh Silk Dyeing Co.— Knppa v., i 

Lehigh Structural Steel Co.— Killingsley v., ! 

Lehigh Valley Coal Co. — Dickson v ] 

Lehigh Valley Cod Co.— Kasperavieh v < 

Ijehigh Volley Coal Co. — Kosnovieli v ■* 

Lehigh Valley Coal Co. — Kwetkauskie v s - J 

Lehigh Valley Coal Co.— O'Shnte v. : 

Lehigh Valley Coal Co.— PangratE v., "■ . ; 

Lehigh Valley Coal Co. — Penlocb v. 

Lehigh Valley Coal Co.— Silvest.ri v : 

Lehigh Valley Coal Co.— Walukenis v ^ 

Lehigh Valley E. R. Co.— Barron v 1 

Lehigh Vnlley R. R. Co.— Blackwell v '. 

Lehigh Valley R. R. Co.— Hahn v I 

Lehigh Valley R. R, Co.— Lumley v E 

Lehigh Valley R. R. Co.— O'Donnell v E 

Lehigb Valley R. R. Co.— Reap v. I 

Lehigh ft Wilkes-Barre Coal Co.— Shoto v i 

Lehigh & Wilkee-Barre Coal Co.— UrbinovitHi v ( 

Leibensperger v. Plinpire Iron & Steel Co -1 

zeaov Google 



II) 

Page. 

Lenox Coal Co. — Pnterno v., 395 

Lente v. Luoci 394 

Lcsfco v. Pittsburgh & Lake. Eri<; H. It. Co 390 

Lever Oswalt Co.— Boacb v 3!)5 

Levin— King v 400 

Levin v. Philadelphia ft Heading Ey. Co 396 

Liberato et al v. Bnyer & Herr 338 

Liberty Coal Miniug Co.— Prist.i v 400 

Liberty Rap; Co.— Kcllnrt v., 394 

Lincoln Ges Coal Co. — Kopchnk v., 93 

Lmdley Coal Co.— Oliver v 397 

Lindsay Chaplet & Mfg. Co.— Powell v 136 

Lindway v. Pennsylvania Co., 398 

Lipscomb v. U. S. Aluminum Co., 400 

Lloyd v. Hudson Coal Co., 390 

Lockhart v. Geo. Pawling Construction Co 398 

Locust Mountain Con] Co. — Butronavagc v., 397 

Locust Mountain Coal Co. — Sheppurd v 335 

Logan v. Pot Ridge Coal Co., 209 

Logan Coal Co.— Zcchtillo v .". 400 

Lokus v. YV. R. McTurk Coal Co 201 

Lomax v. Mullen, 394 

Lorain Steel Co. — Berrimnn v., 65 

Lorenzo v. Coal Run Mining Co 279 

Liibaneki v. Delaware, Lackawanna ft Western R. It. Co. 146 

Lucci — Lente v., 394 

Lucius Engineering Co.— Knramaivis v *. 397' 

Lukowski v. Equitable Illuminating Gas Liglit Co 399 

Lnmley v. Lehigh Valley R. R. Co 31)8 

Lnpton, Dcvid, Sons Co.— Brick v 181 

Lntz v. Foundation Co., 47 

Lyle v. State Workman's Insurance Fund 394 



Maen fee— Malloy v. 394 

MacCall v. Powell, Clouds ft Co 281 

Madole v. American Railway Express Co 398 

Maguire v. Mid vale Steel ft Ordnance Co. 399 

Malloy v. Macafee 394 

Manning v. Atlantic Refining Co., 71 

Marcello v. Arthur McMulicn Co 394 

SJurcoski v. Valley Smokeless Coal Co., 398 

Margnrctty v. State Workmen's Insurance Fund, 397 

Marks v. A. M. Byers Co., , 397 

Marshall v. Pennsylvania Salt Manufacturing Co., 137 

Marks v. U. S. Metallic Packing Co. 395 

Martin v. Baldwin Locomotive Works, . i 397 

Marttild v. Irwin ft Leighton 399 

Mostcn Cor.l Co.— Betontc v., 394 

Uasulewick v. Newton Coal Co 396 

Mather CoUeries Co.— Druga v 394 

Matthews, W. L. 4 R. B.— Hanna v., 313 

Matuskedski v. Philadelphia Ceiling & Stevedoring Co ... 89(7 



20 

Pate. 

May v. State Workmen's Insurance Fund, 308 

Mayor, S. P., Brick Co.— Norcross v 176 

Maxwell— Stevens v 400 

Meek— Wolf v >. 54 

Mellon -Stuart Co. — Buker v., ::;>7 

Mellon-Stuart Co.— Berardinl v 384 

Mendeko v. Pittsburgh Coal Co., 54 

Meogrossi v. Wm. Steele & Sons Co 368 

Mercer Iron & Coal Co. — Harrison v 396 

Merchant Shipbuilding Corporation- Chnppers v 395 

Merchant Shipbuilding Corporation — Rabo v 390 

Mcrwjn Manufacturing Co.— Gryger v 397 

Micliaelcs v. Aetna Founilry 400 

Midvnle Steel & Ordnance Co.— Maguirc \- , 390 

Milioanwicz v. H. H. McCloskey, J r., Inc 340 

Miller— Bender v., 397 

Miller— v. Conner, 395 

Miller— v. Philadelphia & Reading Coal & Iron Co 395 

Millaon— Pajnk v 395 

Mockua v. State Workmen's Insurance Flint) 398 

Mohawk Mining Co.— Ziiils v 142 

Mollenkopf v. Fisher 401 

Monizes v. Barrett Co., 400 

Monoghiin v. Thompson-Connellsvillc- Coal & Coke Co 396 

Montgomery- — Callihnn v., 32 

Moore v. Philadelphia Rapid Transit Co 396 

■Moore v. Philadelphia 4 Rending Goal & Iron Co 282 

Moore v. State Workmen's Insurance Fund 107 

Moreni v. Turner Construction Co 396 

Moreen v. Baldwin Locomotive Works, 341 

Morgan v. Roiforil Knitting Co., 397 

Morgan v. Philadelphia & Reading Coal & Iron Co 74 

Morocco, ct al. v. Clydesdale Brick & Stone Co 398 

Morrellvillc Coal Mining Co.— Prokokovich v., 396 

Morton v. American Stores Co 398 

Morton Philip Co., Detrick v . . 394 

Morton Philip Co. — Simon ton v., 395 

Motley v. Dnrkwater Coal Co 400 

Motta v. Scruuton Coal Co 396 

ML Pleasant Coniiellsville Coke Co.— Kovalski v 387 

Mullen v. Bethlehem Foundry & Machine Co 400 

Mullen— Lomax v 394 

Mullen v. Pennsylvania R. R. Co., 399 

Mullin v. Eeppller Coal Co 395 

Mulnix v. W. D. Byron & Sons, Inc 995 

Murdoch v. Slate Workmen's Insurance Fund, 399 

Murphy v. Carber Pointing Co 400 

Murphy — Gilmore v. 400 

Murphy, Cook & Co.— Bryant v 397 

Murphy, Cook & Co.— Ewd 391 

McArtluir Bros. Co. — Donnelly v., 394 

McCurthy v. Hotel Henry Co 345 

MeClean,.W. B., Mfg. Co.— Frankowski v 394 



„Xi:-yGOO^IC 



21 

Page. 

McCloskey, H. H. Jr., Inc.— Milioanwicz v., 349 

McCloskey v. State Workmen's Insurance Fund 400 

MeCloughton v. Breeding Bros. Co. 200 

McCormick v. American International Shipbuilding Corporation, 308 

McCoy v. Jones & Langhlin Steel Co., 212 

McDennott Broa.— Boyle v., 400 

McFaul t. American Internr.tional Shipbuilding Corporation 90 

McGuirk v. Sun Shipbuilding Co 216 

McHatton Foundry Co.— Gallagher v 303 

McKcuha Brass & Manufacturing Co.— Scott v 808 

McLaughlin Contracting Co. — Burton v., 305 

McMeekin v. Standard Steel Bearing Co 308 

McMuUen, Arthur, Co.— Marcetlo v :W4 

McQuillan v. National Analine & Chctnienl ( 'o 308 

McTurk, W. R., Coal Co.— Lokus v 201 



Napierkoskie et al. v. Kingston Coal Co., 

Napoliello v. JohD Baizley Iron Works, 

Nony v. Buck Run Coal Co. 

National Analine & Chemical Co. — McQuillan v 

Notional Car Wheel Co.— Siaberla v 

National Mining Co. — Weir v., 

Nazareth Brick Co. — Anschau v. 

Neff v. Baldwin Locomotive Works 

Newcomb v. Scranton Coal Co 

Newton Coal Co. — Mcsulewick v 

New York ft Pennsylvania Co. — Crawford v 

New York & Pennsylvania Co.— Rogers v 

Nicholson v. Buffalo, Rochester & Pittsburgh lly. Co., 
Niedelcoff v. Stone & Webster Engineering Co., . . . . 

Niles-Bement Pond Co. — Pronnegg v., 

Noonan v. Philadelphia & Rending Coal & Iron Co., . . 

Norcross v. S. P. Mayer Brick Co. 

Norman v. Oliver Iron ft Steel Co 

Norristown Service Garage — Leamy v 

Northwestern Mining & Exchange Co, — Brakr v 

Nowaski v. Pennsylvania Rubber Co 



O'Boyte v. Hudson Coal Co 

O'Brien Bros. ft Rees — Haston v 

Ocepek v. Westmoreland Coal Co 

O'Donnell v. Lehigh Valley R. R. Co 

Odzwiez .v. Susquehanna Collieries Co., 

Oliver v. Lindley Coal Co. 

Oliver Iron & Steel Co. — Garvin, 

Oliver Iron ft Steel Co.— Norman " 

O'Neill v. Philadelphia Rapid Trunait Co 

Onofrey v. Silsqnchaniia Collieries Co 

Oravac Ann v. Pittsburgh High Voltage Insulator Co 

Oravuc Joseph et al. v. Pittsburgh High Voltage Insulator t 
Ordofoski v. Philadelphia ft Reading Coal & Iron Co 



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?2 

Osborne v. Independent Pier Co.. 

O'Shnte v. Lehigh Valley Coal Co 

Osikn, v. Hudson Coal Co., 

Owens v. Curtis Publishing Co 

Ozoga v. Buck Bulge Coal Co., 

P 

Palmer v. Rells Mill Coal Co 

Pun-grabs v. Lehigh Valley Coal Co 

Paris! v. Snare & Tries! Co., 

1'iiteruii v. Lenox Coul Co 

PiilinRC v. Central Coal Co 

Pattison v. PnttltKHi National liauk 

Pattison National Rank — Pattison v. 

Pnvis v. American Chain Co., 

Pawling, George, Construction Co. — Loekhart v., 

Pajnk v. Millson, 

I'tal v. Donaldson 

l'eale, Peacock & Kerr — Rouch v. 

Pearsall v. Home-Crest Mills Co q mi rat ion. .... 

Pcoaley v. Cohn, 

Penkowsky v. American Car & Foundry Co 

Ptnlock v. Lehigh Volley Coal Co 

Penn Contracting Co. — Yeckley v 

Peon Redaction Co.— Scbaffel v., 

Pen nock — Ivory v., 

Pennsylvania Central Coal Co.— Earley v. 

Pennsylvania Central Coal Co. — Smith v., .... 

Pennsylvania Co. — Lindway v., 

. Pennsylvania Cotl Co.— Forgin v. 

Pennsylvania Coal Co.— Polick v., 

Pennsylvania Coal Co. — Rondatz v., 

Pennsylvania Coal & Coke Corporation — Delxo i 
Pennsylvania Coal & Coke Corporation— Sat el la i 

Pennsylvania R. R. Co.— Drown v., 

Pennsylvania R. R. Co.— Cirigliana v 

Pennsylvania R. R. Co. — Davis v. 

Pennsylvania R. R. Co. — Englemaun v 

Pennsylvania R. R. Co.— Fay v 

Pennsylvania R. R. Co.— Feraliski v., 

Pennsylvania R. R. Co.— Haley v. 

Pennsylvcnia R. R. Co. — Johnston v 

Pennsylvania R. R. Co.— Kindall v 

Pennsylvania R. R. Co. — Lcaper v 

Pennsylvania R. R. Co.— Mullen v 

Pennsylvania R. R. Co.— Terrain in v 

Pennsylvania R. R. Co.— Wynndt 

Pennsylvania Kuhber Co. — Nowuski \- 

Pennsylvania Ruliher Co. -KujyiiiTo v 

Pennsylvania Salt Manufacturing Co. — Marshal 
Pennsylvania Smelting Co. — Hokolo v., 

I"- r I*. I .mil. I. Ii*. i '•■ill i '.. 

Peatitiick v. West End Coal Co 



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23 

IVInwki v. Columbia Textile Co. 

Prtsogo v. Hudson Conl Co 

Philadelphia Ceiling ft Stevedoring Co. — Matuskedski v., 

Philadelphia Rapid Truncit Co. — Granger v 

Philadelphia Rapid Tmnslt Co. — Moore v., 

Philadelphia Rapid Transit Co.— O'Neill v 

Philadelphia & Reading Conl ft Iron Co.— Alctwff v., .. 
Philadelphia ft Reading Coal ft Iron Co. — Angello v., . 

Philadelphia ft Reading Coul ft Iron Co.— Miller v., 

Philadelphia ft Reading Coal ft Iron Co.— Moore v 

Philadelphia ft Rending Coal ft Iron Co. — Morgan v., . . 
l'hilndelpliia ft Reading Coal & Iron Co.— Nuomm v.. . . 
Philadelphia & Reading Conl & Iron Co.— Ordofoski v., . . 
Philadelphia & Reading Coal & Iron Co. — Pothering v., 
Philadelphia ft Reading Coal & Iron Co.— Richards v., . . 
Philadelphia ft Reading Coal & Iron Co. — Samoskie v., 
Philadelphia ft Reading Coal & Iron Co. — -Samis v., .. 
Philadelphia & Reading Coat ft Iron Co.— Sennwnitis v., 
Philadelphia & Reading Conl ft Iron Co.— Silinsky v., . . 

Philadelphia ft Reading CoeI ft Iron Co.— Stitzcr v. 

Philadelphia & Reading Coal ft Iron Co.— Sweeney v., . . 
Philadelphia ft Reading Coal ft Iron Co.— Wall tune v., . 
Philadelphia ft Reeding Coal ft Iron Co. — Washleskie v. 
Philadelphia ft Reading Coal & Iron Co. — Ynnches v., 

Philadelphia ft Reading Ry. Co.— Bennett v 

Philadelphia & Reading Ry. Co.— Kronuinio v., 

Philadelphia ft Reading Ry. Co. — Piehm v 

Philadelphia 4 Reading Ry. Co. — Erb v 

Philedelphia ft Reading Ry. Co; — Levin v 

Pliilbin v. Home Life Insurance Co 

Phoenix Iron Works— Jewell v 

Phoenix Utility Co.— Creasy v 

Piazza v. Pittsburgh Coal Co 

Picciani v. Pittsburgh Steel Co., 

Picuinas v. Andora Nurseries, 

Pioneer Brush Washing Machine Co. — Shrope v., 

Piacatelli v. Bradford Brick ft Tile Co., 

Pittsburgh Coal Co. — Burgoync v 

Pittsburgh Coal Co.— Daniels v 

Pittsburgh Coal On.— I Delokwtvfcli v 

Pittsburgh Coal Co. — Josephite v 

Pittsburgh Coal Co.— Mendeko v 

Pittsburgh Coal Co.— Piazza v 

Pittsburgh Coal Co.— Tomeherk v 

Pittsburgh Coal Co, — Tomori v 

Pittsburgh Coal Co.— Williams v 

Pittsburgh & Eastern Cod Co.- llejrlinmini v 

Pittsburg Gazette Times — Wnngh v. 

Pittsburgh High Voltage Insulator (V— Anna Oravue v., 
Pittsburgh High Voltage lnsultiior Co.— Joseph Oruruc e 

Pittsburgh ft Lake Erie R. R. Co.- -Lcskn v 

Pittsburgh Plate Class Co. — Adams v., 

Pittsburgh Plate Class Co.— IJiwiller v 



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Pittsburgh Plate Glaus Co.— Streightif v 

Pittsburgh Steel Co — Piecieni v 

Pobloskie \. Equitable Coke Co. 

Poland Coal Co. — Cabaret v 

Polick v. Pennsylvania Coal C«., 

Pooler v. Atlantic Fruit Co., 

Porter — Crippcn v., 

Portnoy v. L. Needles Brooker Co 

Pot Ridge Coal Co.— Logan v 

Pothering v. Philadelphia ft Reading Coal & Iron Co., . 

Powell v, Lindsay Chaplet & Manufacturing Co 

Powell, Clouds ft Co.— MacCcll v 

Presbytery of Lackawanna — Crane v. 

Pressed Steel Car Co.— Hughes v. 

Prista v. liberty Cool Mining Co., 

Proctor ft Schwartz, Inc. — Clement v., 

Prokovieh v. Mprrellvillo Coal Mining Co 

Pronnegg v. Niles-Bement Pond Co., 

Punisutawney Board of Education — Smith v., 

Punxsutnwney Furnace Co.— Rotolo v 

Pupp v. Clare Manufacturing Co 

Pnrdy et el. t. Erie Specialty Co. 

Puritan Chemical Co. — Coplan v 

Pyrick v. Delaware, Lackawanna & Western R. K, Co.. 



<* 



Quaker City Rubber Co. — Washington > 
Quinn, T. H., & Co.— Stritoff v. 



Rabo v. Merchant Shipbuilding Corporation 

Railway Steel Spring Co.— Dolu'ily v 

Rain ey -Wood Coke Co.— King v 

Reap v, Lehigh Valley R. R. Co 

Rebcr v. Shcrmcn 

Red Bank Coal Co.— Zaunuzzi v. 

Redeman v. Hertzberg, 

Redmond v. Belmont Iron Works 

Reed v. American Sheet & Tin Piute Co 

Repplier Coal Co. — Mullin v.," 

Republic Iron ft Steel Co.— Stiukulu v 

Republic Iron & Steel Co. — Tntsn v 

Reynolds v. Striiuf 

Richards v. Philadelphia & Rending Coal & Iron 

Ricbman ct nl. v. Cramer & Roller, 

Rick v. American Bridge Co., 

Riley v. Carnegie Steel Co., 

Riser v. Cotonicl Life Insurance Co 

Roach v. Oswald Lever Co 

Roach v. Standard Tin Plate Co 

Rochester & Pittsburgh Coal & Iron Co. — Ihmlnp » 
Rochester & Pittsburgh C.ial * Iron Co.- Snyder v., 



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Rock v. State Workmen's Insurance Fund. . . 
Rockhill Coal k Iron Co. — Rohcr et al. v., . . 

Roddy v. Cross Keys Rest n'u rant 

Rogers v. New York & Pennsylvania Co., . , 

Roller et al. v. Rockhill Coal & Iron Co 

Rolm Bros.— Pull v 

Romr.nn v. YonghlojrhenY & Ohio Conl Co.. 

Rondatz v. Pennsylvania Cr.nl Co 

Rosloanik v. Kiskiniinclas Springs School. . 

Rotolo v. l'«n*8tifawney Fnniin'e Co 

Rouch v. I'eHlc. Peacock & Kerr 

Roxford Knitt'ng Co.— Morgan v 

Roydbouse-Arry Co. — Altmnn v. 

Roydhousc-Arey Co. — Haring v 

Royer & Herr— Liberate et al. v 

Radar v. Allegheny Garbage Co., 

Ruggiero v. Pennsylvania Rubber Co 

Rnth — Bricker, et al. v 



Sarooskie v. Philadi'l|>hia Sc Reading Coal & Iron ('«.. 
Sartiia v.- Philadelphia & Reading Coal & Iron Co.. .. 

Sartoni v. Hudson Coal Co . . 

Satella v. PennsylvGnia Coal & Coke Corporation 

Savage Arms Corporation — Yunoschik v 

Say dock t. Delaware, Idckawanna & Western R. R Co 
Scaulon v. Delaware. Lackawanna & Western It. R, Co 

Scbaffel v. Penn Reduction Co, 

Schofield, Wm. Co.—Wctson v ... 

Schulti v. Glaaamire, 

Scott v. McKenna Braes & Manufacturing Co., ...... 

Scranton Bolt & Nut Co —Cardan v. 

Scranton Coal Co.— Motto v., 

Scranton Coal Co. — Newcomb i 

Scranton Coal Co. — Straviiickas v 

Seas v. Easton Rraas it Machine Co 

Seich v. Union Coal & Coke Co 

Sellers, Wm., & Co.— Hunter v„ 

Semet-Solvay Co.— Bolin v 

Senawaltis v. Philadelphia & Rendine Coal & Iron Co 
Sen is v. Westing bouse Klcclrir ft Mnnufacr urine <'".. 

Sergeant Glass Co -Chase v., 

Serlick v. Hammer, 

Shad v. Alden Coal Co 

Shannon v. Carnegie Steel Co 

Sheehnn v. Geo. W. Smiib & Co , 

Shelton v. Keystone Trap Rock Co., . 

Sheppard v. Locust Mountain Cotl Co. 

Sherman — Reber v.. . 

Sbinfleld— Williams v 

Sbipman Coal Co. -tirobnskte v. 

Shoe v. A. H. Win, Inc 



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Shoemaker Coal Mining Co.— Johnson v 

_ Shoto v. Lehigh & Wilkes Barrc Coal Co. 

Shropc v. Pioneer Brush Washing Machine Co 

Shudo v. Hoones ft Tnnnsend 

Shulta v. Haffelfinger Wall Paper Co., 

Siko v. Itrndenvillc Coal ft Coke Co., 

Silinsky v. Philadelphia ft Reading Coal & Iron Co 

Silvestri v. Lehigh Vclley Coal Co 

Simonton v. Philip Morton 'Co., 

Slack. N. B., ft Son— Ironside v., 

Slaughter v. Sun Shipbuilding Co. 

81ator v. Clinton iron & Steel Co., 

Smiley v. Hnndlon 

Smith v. Kistler, Leah ft Co 

Smith v. Pennsylvania Central Coal Co 

Smith v. Panxsutawney Board of Education 

Smith, Geo. W., & Co.— Sheehan v 

Snare ft Trieste Co.— Paris! v 

Snare ft Trieste Co. — Sngarmau v 

Snellcnburg N. ft Co.— Tarquinta v 

Snyder v. Draw) Contracting Co 

Snyder v. Elk Tanning Co. 

Snyder v. Harbison- Walker Refractories Co 

Snyder v. Rochester ft Pittsburgh Coal ft Iron (}o 

Snyder v. Wolverine Supply & Manufacturing Co. 

Sofranscy, H., Co. — I'santak v., 

Sojko v. Carnegie Steel Co 

Solomon v. Jersey Cereal Pood Co., 

South Fork Coal Mining Co. — Jordan v 

Spafadore v. Webster. Monessen, Belle Vernon ft Fayette City Street I 

Co 

Speaker v. American Reduction Co 

Stalcy Bros. — Bair v. 

Standard Construction Co. — Dcvine v 

Standard Refractories Co. — Gecry v 

Standard Tin Plate Co. — Roaeh v 

Standard Steel Bearing Co. — McMeekin v., 

State Workmen's Insurance Fond — Allen v 

State Workmen's Insurance Fund — Bnldoff, et al. v 

State Workmen's Insurance Fund— Barton v 

State Workmen's Insurance Fund — Baumgardner v 

State Workmen's Insurance Fund— Caldibelli v * 

State Workmen's Insurance Fund— Cos tel la v., 

State Workmen's Insurance Fund — Croseley v 

State Workmen's Insurance Fund— Dnrafn v 

State Workmen's Insurance Fund— Filipielc v 

State Workmen's Insurance Fund — Forman v 

State Workmen's Insurance Fund— Freeman v 

State Workmen's Insurance Fund— Giflert v 

Stnte Workmen's Insurance Fund — Joest v. 

State Workmen's Insurance Fund — Kric v., . . -. 

State Workmen's Insurance Fund— Lyle v 



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27 

State Workmen's Insurance Fond- Mnrgnrctty v.. . 

State Workmen's Insurnncr Fund-- May v 

State Workmen's Insurance Fiiml— \1 ■. "-; i- v 

State Workmen's Insurant Fund Moore v 

State Workmen'* Insurance Fund Murdoch v 

State Workmen's Insurance Fond — MeCloakey v., 

State Workman's Insurance fund — Rock v. 

Stcte Workmen's Insurance Finn! — Taylor v , 

State Workmen's Insurance Fund — Viraro v 

State Workmen's Insurance Fund — Wiuneypr v., . 

Staymatea v. Bachman, Rudert & Co 

Steele, Wm. & Sons Co.— Mcogrossi v 

Steen — Critcblow v., 

Stephens v. Cnrnegu' Steel Co. 

Sterling Coal Co.- -Zaday v 

Stewart v. Wanaiouker. 

Stevena v. Maxwell, 

Stimpson v. Ellwood Lumber Ci 

St in kola v. Republic Iron & St ■ Co, 

Stitzer v. Philadelphia & Reeding Coal & Iron Co., 
Stone & Webster Engineering Co.- Niedcleoft ^.. , 

Storch v. Whltehill 

Slravinckaa v. Scrnntnn Coal Co 

Strawbridge & Clothier— Wilmol v., ., 

Streightif v. Pittsburgh Hate Class *'•< 

Strernpnanskv v. Jacuby 

Stringer v. Junes & Lnughliu Steel Co 

Stritoff v. T. U. Quinn & Co, 

Strine v. York Manufacturing Co 

St ron it— Reynolds v 

Sugarman v. Snare & Trieste Co 

Sulzbach v. K.-i i. 

Sun Shipbuilding Co.— McCuirk v 

Sun Shipbnilding O— Slaughter i 

Susich v. Jones & Lattgblin Steel Co, 

Susqnehannc Oollierfes Co— 4)d*n'les v 

Susquehanna Collieries Co. Onofrey * , 

Susquehanna Collieries Co — Wydra v 

Swartz v. Borough of Hanover 

Sweeney v. Philadelphia & Reading foal & Iron Co.. 

Swift v. Cook 

Szuberla v. National Car Wheel Co 



Tarquinio v. N. Snelleuburg & Co., 

Taylor v. State Workmen's Insurance Fund, 

Terramln v. Pennsylvania R. R. Co 

Thies v. Budd Wheel Corporation 

Thompson — Carroll v, 

Th om pson -Conn oil svi lie Coal & Coke Co. — Monoghni 

Thompson v. Excelsior laundry Co, 

Thompson- Sterret l Co. — Guthrie V 

Tibby-Brawner Glass Co. — Compendia v 

TimM-Morris Co. — Vargason v., 



Unkleman v. Hoopes & Townsend, 

Tomcheck v. Pittsburgh Coal Co 

Tomori v. Pittsburgh Coal Co., 

Touzour v. Traylor Shipbuilding Co., . 
Trajlor Shipbuilding Co.— Tonwwr v.. . 

Trevertoo Colliery Co.— Poulk v 

Trimble, W. F., & Sons Co.— Ferdisko > 

Truscon Steel Co.— Fultz et al. v 

Turner v,- John Eichleny Jr. Co 

Turner Construction Co. — Iteatty v 

Turner Construction Co.— Byerly v 

Turner Const ruction Co. — Moreni v 

Tutse v. Republic Iron & Steel Co., . 



Ugino t. Hayes Wall Paper Co 

Union Coal & Coke Co. — Seich v., 

Union R. R. Co. — Budgasfce; v 

United Iron ft Steel Co.— Kinaell v 

United States Aluminum Co. — Kealey v., 

United States Aluminum Co. — Lipscomb v 

United States Metallic Packing Co.- — Marks v.. 
Crbinovitch v. Lehigh ft Wilkes- Carre Coal Co.. 
Usantak v. H. Sofranscy Co. 



Valley Smokeless Coal Co.— Marcoski v 

V'en Luvcn v. Hyde 

Vnnnon v. Keystone State Construction Co 

V argn v. Day & Zimmerman, , 

Vargasun v. Tindel-Morris Co., 

VnnTive — Judge v 

Wndrychowicz v. Delaware. Lackawanna ft Western R. R. i 

Vesta Coal Co. — Chester V 

Vesta Coal Co. — Jesulca v., 

Vesta Coal Co. — Ktrestan v., 

Vicnro v. State Workmen's Insurance Fund 

Volpi v. II. F. Watson Co 



Walituse v. l'hiladelphia & Reading Coal & Iron Co., 

Walker Foundry Co. — Anacardo v., 

Walton— Rrcnnemau v. 

Walokenis v. Lehigh Valley Coal Co 

\Y anr.maker — Frommer v. 

Wunnmnker— Stewart v., 

Ward, D. L. Paper Co.— Hoye et al. v 

Washington v. Quaker City Rubber Co 

Washleskie v. Philadelphia ft Reading Coal ft Iron Co., 

Watson v. Lehigh Coal ft Navigation Co 

Watson v. Win. Schofield Co 

Watson Coal Co.— Kelly v 

Watson, H. F. Co., Volpi v 



29 

Page. 

Waugh v. Pittsbu rgh Gazette 'limes, 119 

Webster, Monessen. Belle Veraon ft Fayette City Street Ry. Co.— Spafa- 

dorc v., : 386 

Weir v. National Mining Co., 399 

Weissinger v. AmerictD International Shipbuilding Corporation 399 

W enrich v. Bock Run Coal Co. 398 

Wealey y. Carnegie Steel Co., 397 

West v. Cummings 175 

West End Coal Co.— Pestiniok r. 396 

Westinghouse Electric ft Manufacturing Co. — Giordano v., 399 

Westinghonse Electric ft Manufacturing Co. — Senia v 398 

Westmoreland Coal Co.— Cheely v 397 

Westmoreland Coal Co.— Ocepek v 350 

Whelen v. Eastern Coal Dock Co., 300 

White, S. S., Dental Co.— Yonng v 92 

Whitehill— Storch v 395 

Wichert— Wooley v 126 

Wilbur, H. O., ft Sons, Inc.— Herri ngton v. 394 

Williams v. Pittsburgh Coal Co ,195 

Williams v. Shinfield 399 

Wilmot t. Strawbridge ft Clothier, 174 

Wire, A. H., Inc.— Shoe v 399 

Witmcyer v. State Workmen's Insurance Fund 67 

Wolf v. Meek, 54 

Wolstenbolme, Tbos. ft Sons— Koscreln ink v 300 

Wolverine Supply ft Manufacturing Co. — Snydor v., 189 

Wonderiy v. Harriaburg Pipe & Pipe Bending Co 390 

Wooley v. Wiehert, 126 

Worth Bros. Co.— Zippillo v 399 

Wyandt v. Pennsylvania R. R. Co 299 

Wydra v. Susqnehanna Collieries Co 396 



Yancbes v. Philadelphia ft Reading Coal ft Iron Co 

YcnoBchik v. Savage Anna Corporation, 

Yeckley v. Penn Contracting Co 

Yetter v. American International Shipbuilding Corporation, 

York Manufacturing Co. — Strine v., 

Yorkers v. Ellsworth Collieries Co., 

Yorkshire Worsted Co. — Diamond v 

Yonghiogheny ft Ohio Coal Co. — Romana v 

Young v. S. S. White Dental Co 

Young Men's Christian Association — Butson v 



ZachtUlo v. Logan Csal Co., 400 

Zaday v. Sterling Coal Co., 288 

Zcnnum v. Red Bank Coal Co 400 

Ziata v. Mohawk Mining Co., 142 

Zlon Reformed Church — Gramm v. 828 

Zippillo v. Worth Bros. Co 305 

Zonfin v. Dill ft Collins 399 

Zuppa v. Lehigh Silk Dyeing Co., CoW?Ic 



30 
TABLE OP ABBREVIATIONS. 



A. C. — Law Reports, Appealed Cases (England). 
Atl. — Atlantic Reporter. 

B. W. C. C. — Butterworth's Workmen's Compensation Cases (Great Britain and 

Ireland). 
Conn. — Connecticut Reports. 
Dept. Reports — Department Reports (Pa.) 
Dist. Rep. — Pennsylvania District Reports. 
Fed.— Federal Reporter. 
111. — Illinois Supreme Conrt Reports. 
K. B. — Law Reports, Kings Beach (England). 
L R. A. — Lawyer's Reports Annotated. 
Mass. — Massachusetts Reports of Supreme Judicial Conrt. 
Mich. Ind. Ace. Bd. — Reports of Industrial Accident Board of Michigan. 
N. E.— Northeastern Reporter. 
N. J. and N. J. L.— New Jersey Law Reports. 
N. W. — North western Reporter. 
N. Y.— New York Court ot Appeals Reports. 

N. Y. Sapp. — New York Supplement Reports, also cited as N. Y. S. 
N. C. C. A. — Negligence Compensation Cases Annotated, also cited as Neg. Comp. 

Neg. and Comp. Cases, also N. and W. C. A. and Negligence C. C. A. — Negligence 
and Compensation Cases Annotated. 

Op. Ind. Bd. of III.— Opinions of Industrial Board of Illinois. 

Op. Sol. Dept. C- & L. — Opinions of the Solicitor of the Department of Commerce. 

Pa.— Pennsylvania Supreme Court. 

Pa. W. C. Bd, Dee. Vol. 1 — Pennsylvania Workmen's Compensation Board De- 
cisions, 1916. 

Pa. W. C. Bd. Dec. Vol. 2 — Pennsylvania Workmen's Compensation Board De- 
cisions, 1017. 

Pa. W. C. Bd. Dec. Vol. 3 — Pennsylvania Workmen's Compensation Board De- 
cisions, 1918. 

Pa. W. C. Bd. Deo. Vol. i — Pennsylvania Workmen's Compensation Board De- 
cisions, 1919. 

Pa. W. O. Bd. Dec. Vol. 5— Pennsylvania Workmen's Compensation Board De- 
cisions, 1920. 

P. C. C. — Pennsylvania County Court Reports. 

Pat — Pacific Reporter. 

Q. B.— Law Reports, Queens Branch (England). 

Rep. Mass. — Ind. Ace. Bd. — Report of Mass. Industrial Ace. Bd. 

R. I. — Rhode Island SupnSne Court Reports. 

S. E. — South Eastern Reporter. 

S. W. — South Western Reporter. 

Sc. L. R- — Scottish Law Reports. 

U. S. — United States Reports Supreme Court. 

W. C. C. — Workmen's Comp. Cases published by Butterwortb & Co (London). 

Wallace — United States Supreme Court Reports. 

Wash. — Washington Reports. 

Wis. Ind. Com. — Wisconsin Industrial Commission. 



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31 
Decisions of the Board. 

Baldoff, et al. v. State Workmen's Insurance Fund. 

DependenvV — Child under sixteen preatrmed. 

The dependency of a child under sixteen years of age is conclusively presumed, 
and actual dependency need not be proved. 

Claimant not represented by counsel. 

Defendant represented by Samuel I. Spyker, Huntingdon. 

OPINION BY COMMISSIONER HOUCK— January 5, 1921. 

Peter Baldoff met with an injury while in the course of his em- 
ployment which resulted in his death, and on October 30, 1919, a 
compensation agreement was entered into between 'Mrs. Emmeline 
Baldoff and her three children, Ruth, Emmeline and Charles, and the 
University of Pittsburgh, providing for the payment of compensa- 
tion to Mrs. Baldoff and her three children. On August 24, 1920, a 
petition for review of this agreement was filed by Dorothy E. Baldoff, 
a minor child of the deceased by a former marriage. A heating was 
held on this petition and the evidence shows that Peter Baldoff was 
married to the mother of the petitioner, and that one child. Dorothy 
E. Baldorff, was born to this marriage on December 16, 1908. Peter 
Baldoff and Dorothy's mother were subsequently divorced and Doro- ' 
thy continued to live with her mother. The mother then married 
W. L. Stech and Dorothy lived with them and was supported by her 
stepfather. Dorothy now claims that she should he a party to the 
compensation agreement and should receive a share of the com- 
pensation as a surviving child of the deceased employe. 

Since Dorothy E. Baldoff is a legitimate child of Peter Baldoff, 
the deceased employe, her right to compensation is clear under the 
plain provisions of the Workmen's Compensation Act. Section 307 
of the Workmen's Compensation Act of 1915 provides that sixty 
per centum of wages shall be paid to the widow or widower, if 
there be four or more children, and that compensation shall be pay- 
able to or on account of any child while such child is tinder the 
age of sixteen, and that such compensation shall be paid to such 
child after the 300 week period until the child reaches the age of 
sixteen. The dependency of a child of a deceased workman is con- 
clusively presumed, and actual dependency need not be proved. In 
other words, it is immaterial whether the child of a deceased work- 
man, under the age of sixteen, was actually dependent upon the em- 
ploye or not. Under the Act such a child is entitled to compensa- 
tion. Strapon i>. Pittsburgh Steel Co., 2 Workmen's Compensation 
Board, 450. 

Domed cy G00gle 



S3 

Since the agreement in this case does not provide for Dorothy E. 
Baldoff, it is not correct. The Board, therefore, revokes its approval 
of Compensation Agreement No. 680171 and directs the parties to 
enter into a supplemental agreement making provision for the peti- 
tioner, Dorothy E. Baldoff. 

Gallih^n v. Montgomery. 

Employe — Distinguished from independent contractor. 

Absolute control of the employe by the employer, or the employe's abject sub- 
mission to every dictation of the employer are not the controlling tests. 

The relationship between employer and employe is to be defined by reference 
to the Act of 1915, rather than by adoption of dictionary definitions. 

Claimant represented by J. M. Ualbiaith, Butler. 
Defendant represented by C. E Graham Jr., Pittsburgh, and Jainea 
E. Marshall, Butler. 

OPINION BY MACKEY— Chairman— January 5, 1921. 

Oscar F. Callihan, the husband of the claimant, was killed on 
July 22, 11)20, under the following circumstances: 

The deceased was the owner and operator of a machine shop in 
tbe borough of Chicora. This shop was thoroughly equipped with 
necessary machinery, and it was admitted by the witnesses and 
found as a fact by the Referee that the deceased was a skillful 
mechanic, that he was employed not only by the present defendant, 
but by others because of his ability and skill in repairing machinery. 
Tbe defendant operated an oil and gas lease on a farm in Donegal 
township, not very far from the town in which is located the shop 
of the deceased. 

On July 22, 1920, Arthur Montgomery, the defendant's son, being 
in charge of the said lease, visited the decedent's machine shop and 
took the deceased in an automobile out to the operation in order 
that he might make some necessary repairs to tbe machinery. The 
evidence shows that at the time of the visit of the defendant' a .son 
there were some negotiations in regard to the amount of money that 
these repairs were to cost. The deceased was offered $30 if he would 
go out and make the repairs, but he refused to undertake the work 
under this arrangement, stipulating that he would work for $1.25 per 
hour, and would charge oaly for the number of hours required to do 
the work. This offer was accepted and the work was done under 
this contract. 

At this point certain findings of fact of the Referee which we adopt, 
are very pertinent and relevant: — 

"The deceased was transported from Chicora to the 
said lease by the said Arthur Montgomery where he 
made some repairs but in order to complete the repairs 



be was required to take a cylinder to his shop which was 
to be re-bored, and rings and rod put in. The said 
Arthur Montgomery left the deceased for a moment 
to get a drink of water before starting with him in the 
machine, the deceased for some reason which was not 
disclosed in the testimony entered the pump house on 
said premises and in some manner was caught in a belt 
and injured to such an extent that he died a few min- 
utes later." 
The Heferee also found that 

"The deceased was a skilled mechanic and the defend- 
ant did not undertake to direct him as to the manner in 
which to do the work, he had, however, the authority 
to discharge him at any time that he found his work was 
not satisfactory." 
In regard to the supervision of the work, the testimony of the man 
who had charge of the lease and who retained the services of the 
deceased in part is as follows: — 

"Q. Did you stand over the work and tell him how 
to do it? Was he under your control or was he to do 
the work in his own way? 

A. He wasn't under my control. He was to do the 
work the best way he could. 

Q. You didn't attempt to tell him how to do the 
work, did you ? 

A. No. 

Q. That was entirely in his control? 

A. Yes, sir. 

Q. So while he was there he was not under your 
direction except as to what was to be done? 

A. That was all. 

Q. As to the manner of doing it you didn't attempt 
to say in which way it was to be done? 

.A. No. 

Q. As I understand you directed him as to what you 
wanted done but vou didn't tell him how he should do 
it? 

A. I never told him how to do anything. 

Q. You directed what was to be done? 

A. Yes, sir. 

Q. You had no control over Mr. Callihan as to 
whether he quit and went home at any time? 

A. No. 

Q. So far as you were concerned he could quit any 
time and go home? 

A. Yes, sir. 

Q. He was entirely under his own control as to when 
he went and when he came? 

A. Yes, sir. 
Under these facts the defendant urges that the deceased was not 
an employe as contemplated by the Workmen's Compensation 
Act of Pennsylvania, but that he came under the exempted class for 



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34 

the reason that the deceased was an independent contractor, and in 
support of this proposition advanced the following: 

1. Because he was a skilled mechanic and machinist and was 
employed because of his special skill in this line. 

2. Because the testimony on this matter in the case shows con- 
clusively that the deceased did the work absolutely in his own way 
without even a suggestion from the defendant. 

3. Because the decedent was an individual business man running 
his own place of business in the borough of Chicora, having there a 
well equipped machine and automobile repair shop. 

4. Because the uncontradicted testimony shows that he had a 
right to begin work or quit at his own option, or he had a right to 
do the work according to his own ideas and in his own way, even to 
the extent of taking the machinery out and tailing it to his shop. 

5. Because the testimony shows that the deceased was considered 
as a contractor by the defendant for the reason that he made him an 
offer of so much to do other work on the machinery, and that the 
decedent, while at the well where he met his death, made the proposi- 
tion that he would take the contract of doing the work at $1.25 per 
hour, and would have to take the cylinder back to his shop where the 
work would be done. 

6. Because the testimony shows that Callihan worked for others 
the same as he did for Montgomery, and that he had not been at 
Montgomery's place since the previous winter to do any work, but 
that he had made repairs for him in his shop in the meantime. 

7. Because the testimony shows that the defendant was not a 
skilled mechanic and had no knowledge that would enable him to 
direct the deceased in his work. 

8. Because it appears that the deceased was hired as a mechanic 
only and that the defendant had no authority or right to place him 
at any other work about the oil lease or well. 

9. Because the testimony all shows that the deceased assumed 
entire control of the work that was being done and that the defendant 
did not offer any interference or advice as to how the work should be 
done, and that the deceased was in no way directly interfered with or 
advised. 

In support of these reasons the defendant has urged the consider- 
ation of several decisions as to what constitutes an independent 
contractor as follows: 

Iu Ardesco Oil Co. v. Gileon, 63 Pa., page 146 it is said: 

"It may be considered as now settled that, if a person 
employs others, not as servants, but as mechanics, or 
contractors in an indejrendent business, and they are of 
good character, if there was no want of due care in 
choosing them, he insures no liability for injuries result- 
ing to others from their negligence or want of skill: 



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35 

Painter v. The Mayor of Pittsburgh, ID Wright 213. If 
I employ a well known and reputable machinist to con- 
struct a steam-engine and it blows up from bad materials 
or unskilful work, I am not responsible for any injury 
which may result, whether to my own servant or to a 
third person. The rule is different if the machine is made 
according to my own plan, or if I interfere and give 
directions as to the manner of its construction. The 
machinist then becomes my servant, and respondeat 
superior is the rule." 
Of like import are the other cases quoted by the defendant, such 

as Hannah v. Gresh & Sons, 16 Montgomery, 182 and Harrison v. 

Collins 86 Pa. 153, where it is said: 

"Jt is not the extent of the work to be done that deter- 
mines whether the employment is an independent one; 
nor is it the fact that wages were to be paid instead of a 
lump sum for the contract.* * That the plumbers were 
paid the .ordinary prices for materials and the usual 
wages for work done instead of a stipulated sum for the 
entire contract did not take away their independent 
employment." 
See also Enerson v. Fay, 94 Virginia, page 60, where it is said: 
"Where a person is employed to perform a certain 
kind of work, which requires the exercise of skill and 
judgment as a mechanic, the execution of which is, 
because of his superior skill, left to his discretion with- 
out restriction upon the means to he employed in doing 
the work and employs his own labor, which is subject 
.alone to his own control and direction, the work being 
executed either according to his own ideas or in accord- 
ance with plans furnished him by the person for whom 
the work is done, such a person is not a servant under 
the control of a master, but an independent contractor ; 
and hence it was held that one employed to do the wood- 
work on certain dry kilns was an independent con- 
tractor, by a per diem, and the further circumstances 
that the employer was to furnish the material." 

It must be remembered, however, that the question to be deter- 
mined in all these cases was the responsibility of the defendant for 
damages because of the alleged negligence of an employe. The 
question in each case was whether the doctrine of respondeat superior 
should prevail. 

The inquiry in those cases was as to the defendant's responsibility 
to a third person, and very frequently such cases do not furnish 
controlling precedents in the determination of compensation claims 
where we are not relegated to those precedents nor compelled to 
use the dictionaries for definitions, but will always find our terms 
defined and relationships determined in Legislative enactments. 



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36 

This was the error of the lower court in Wise v. Borough of 
Cambridge Springs, 1 Mackey 255 who quoted NorriBtown v. Fitz- 
patrick 94 Pa. 121, where that court had said: 

"Police officers can in no sense be regarded as servants 
or agents of the city." 
The court was further misled by Miller v. Hastings Borough, 25 
8. C, 569 where the Superior Court had said: 

"Police officers are not agents or servants of the 
borough, and, therefore, the borough is not liable for 
their omissions or commissions, malfeasance or non- 
malfeasance." 
Using these cases as authority for the determination of the relation- 
ship between a municipality and a police officer, the lower court 
held that a policeman was not a servant or an employe, and there- 
fore could not maintain a claim for compensation because of injury 
suffered in the course of his employment. 

Of this decision we later said in McDonald v. Hanover Township, 
3 Workmen's Compensation Board Decisions, 168, also 4 Dept 
Reports, 1400: 

"In other words, our Act has expressly provided com- 
pensation for any one who performs services for a valu- 
able consideration for a municipal corporation, while, 
the cases that exclude a police officer from the benefits 
of a compensation act have interpreted laws that 
expressly exclude a public official. The cases therein 
cited, Norristown v. Fitzpatrick, 94 Pa. 121 and Miller 
i*. Hastings Borough, 25 Superior 5C9, simply establish 
the fact that as between a municipality and a third 
person, police officers cannot be regarded as servants 
or agent* of a city or a borough to the extent of holding 
such municipalities liable for the negligent acts of such 
policemen." 

The question was finally settled, however in McCarl v. Borough ol 
Houston, 263 Pa. 1, the Supreme Court said; 

"Moreover, if the ordinary meaning of the word 
'servant' is to be applied, then 'municipal corporations, 
the Commonwealth and all governmental agencies 
created by it' would be without the act, for none of 
those engaged in such service are called servants, or 
-popularly considered) as such. They are a3l called 
officers or employes. Yet Section 103, above quoted, 
included all those public bodies. Hence as we must so 
coustrue the act as to give effect to all of the words, 
we must assume that the word 'servant' is not to be 
given the meaning suggested by appellant.* * The error 
into which appellant falls is in overlooking the fact 
that wc are now dealing with a statutory definition of 
the terms used, and that we cannot import into them 
a dictionary definition thereof, especiallv as we would 

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37 

thereby exclude from the statutory definition those who 
are thereby expressly included within it. The statute 
does not define the word 'employer 1 by the word 'master', 
nor the word 'employe' by the word 'servant', and send 
us to the dictionary to find what 'master' and 'servant' 
mean. It says that the word employer as used in the 
act is synonymous with master, and includes, inter alia, 
municipal corporations, in this case the Borough of 
. Houston; and that employe as used in the Act is syn- 
onymous with servant, 'and includes all natural persons 
who perform services for another for a valuable 
consideration', in this case the policeman, James 
McCarl. Hence, under the definitions of the act, the 
Borough and James McCarl Vere employer and employe; 
and as he met his death by an accident, in the course 
of Ms employment, his widow and children are entitled 
to compensation, under the act." 

Inasmuch as Section 104 of the Act provides 

"The term 'employe' as used in this act is declared 
to be synonymous with servant, and includes all natural 
persons who perform services for another for a valuable 
consideration, exclusive of persons whose employment 
is casual in character and not in the regular course of 
the business of the employer, and exclusive of persons 
to whom articles or materials are given out to be made 
up, cleaned, washed, altered, ornamented, finished, or 
repaired, or adapted for sale, in the worker's own home, 
or on other premises not under the control or manage- 
ment of the employer." 

we will be compelled to look beyond the cases used by the defend- 
ant, and just discussed, to establish his immunity from compensa- 
tion liability. These cases stand exactly in the same relationship 
to the interpretation of our compensation law as did the cases 
advanced 10 exclude a policeman from compensation. Both groups 
of cases are dealing with the doctrine of respondeat superior, and 
have in mind the ultimate relationship of a third party, who has 
been injured because of the alleged negligence of a servant of the de- 
fendant. Here we have a statutory definition of "servant" and his 
rights to compensation are likewise statutory. The defendant urges 
Equi v. Koelle-Speth & Co., 1 Mackey 71. It seems to us that the 
court in this opinion did exactly what Justice Simpson said we 
should not do, for as soon as the court found that the Act provides 
that "employer" and " master" are synonymous and that "employe" 
and "servant" are likewise synonymous, he repaired immediately to 
dictionaries for the meaning of these words. The Supreme Court 
says we must find their definition in the Act itself. Had the Court 
referred to the Act, he would have found that a servant under its 
terms, is one who performs work for another for a valuable consider- 



atlon. The Court, however, found that Eqni was not employed be- 
cause of his personal qualities, that he need not have been upon the 
premises himself, and "moreover, even had he been bound by this con- 
tract to render services in person, it was not enough to constitute him 
a servant of the defendants that they have at least general control, 
direction and supervision of his work. The control of the results of 
work is a very different thing from the right to direct the manner in 
which the work shall be done." The Court again went to Bouvier's 
Law Dictionary for his definition of an independent contractor, 
If there is any real value in this case, it does not control the one 
under consideration. • 

The deceased was selected because of his jwrsonal qualifications but 
he rejected a lump sum contract, and insisted upon an engagement 
at so much per hour. The fact that the employer had no such ex- 
pert knowledge of machinery that he could stand over the workman 
and direct him how to use a wrench or a file or a screw driver, did 
not destroy his commanding position as master. Skilled mechanics 
are brought into every establishment because their peculiar knowledge 
is far beyond that of any member of the firm or corporation conduct- 
ing the business. If the doctrine should prevail, where the owner 
employs a man to do work, and relying upon that employe's skill and 
fidelity allows him to complete the work in his own manner without 
the annoyance of constant supervision, that the workmen thus 
becomes an iudei>endent contractor, a compensation law will 
benefit a very insignificant number of our workmen. Such a doctrine 
would exclude from the right of compensation every so called con- 
tract coal miner in both the great anthracite and bituminous coal 
fields. They are assigned a particular breast in the mine, employ 
their own helpers, and are paid according to the quantity of coal 
mined. While they are under the general direction and control of the 
owners, no one stands constantly over them or directs them how 
the detailed work is to he performed. 

Finally we feel that the claimant in this ease is entitled to com- 
pensation, unless Smith v. State Workmen's Insurance Fund, 2C2 Pa. 
2SK controls us to the contrary. 

It is further important to observe that Section 104, dealing with 
employe, makes no mention of the exclusion of a contractor from 
such a class, but when we take up Section 105 we find this provision: 

"The term 'contractor' as used in Article II. Section 
203, and Article III, Section 302(h). shall not include a 
contractor engaged in an independent business, other 
than that of supplying laborers or assistants, in which 
he serves persons other than the employer in whose 



service the accident occurs, but shall include 



%l 



e 



contractor to whom a principal contractor has sublet 
any part of the work which such principal contractor 
has undertaken," 

In turning to Section 302- (In we lind that this clause deals with 
the rights of au employe of a contractor and in no wise deals with 
the situation of an injury to the contractor, himself. With all due 
respect to the learned court responsible for the decision in Equi p, 
Koelle-Speth & Co. I supra) it occurs to us that the Act, itself, never 
intended to raise the question of independent contractorship as 
against the individual himself who under some form of employment 
or contract entered upon the service of a defendant, and in perform- 
ing the work himself suffered an accident in the eourse of that em- 
ployment. 

We bold that fn compensation cases absolute control of the employe 
by the employer or the employe's abject submission to every dictation 
of the employer are not the controlling tests. The power of control 
may very properly be essential to holding the master liable to dam 
ages for the wrongful acts of the servant, for it would be regarded 
as unfair to penalize an employer for the conduct of another whose 
actions he has no power to control or direct, but the purposes of a 
compensation act is. not to punish the employer but to protect those 
who labor for others and who make the livelihood of themselves and 
their families from the sale of their labor. 

In Smith v. State Workmen's Insurance Fund, (mpra) the Su- 
preme Court found that a written contract had been executed be- 
tween the parties thoroughly denning the engagements of the one and 
the considerations promised by the other. The contract expressed 
its own terms in positive language. The Court adopted the finding 
of the Referee that under and by virtue of the said contract, the de- 
ceased employed divers persons or laborers who assisted him in the 
work that he had contracted to do, paying such employes, of his the 
wages that had been agreed upon." 

The finding of fact which evidently controlled the Court is: 

"That the work of transferring was solely under the 
charge and care of the said deceased, who was respon- 
sible to the defendant for all breakage that might occur 
in the transferring, and for the demurrage that might 
arise by reason of any delay in loading or unloading 
from the standard cars; and that he was paid therefor 
at the rates and in the manner set forth in the above 
mentioned contract, his time, manner of working, the 
number and control of the men being matters entirely 
within the control of the said John v - Smith," 



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40 

In this case, the Referee made very definite and conclusive find- 
ings of fact. These were affirmed by the Compensation Board. 

A careful reading of the Court's opinion will show that Mr. Jus- 
tice Stewart was moved entirely by the written contract and the find- 
ings of fact. The learned Justice neglected to do what Mr. Justice 
Simpson did in McCarl v. Borough of Houston (supra) that is. refer 
to the Act to define this relationship rather than to adopt dictionary 
definitions. 

Under the findings of fact undontedly the conclusions of law were 
irresistible but in our judgment this case does not control the present 
inquiry. 

We conclude that Callihan was an employe of the defendant and 
while his employment was casual, nevertheless, what he was doing 
was "in the regular course of business of the employer," and there- 
fore, he came under the protection of the compensation law. See 
Section 104. 

The findings of fact and conclusions of law of the Referee are 
accordingly affirmed and the appeal dismissed. 



Englemann v. Pennsylvania R. R. Co. 

Practice and procedure — Issues considered bu the Board. 
Only the issue raised by the pleadings will be considered by the Board in the 
disposition of a case. 

Appellee represented hy E, T. Adair, Pittsburgh. 
Appellant represented by H. Z. Maxwell, Philadelphia. 

OPINION BY MACKEY— Chairman— January 5, 1921. 
HEARING DE NOVO AT PITTSBURGH. 

A hearing dc novo was ordered in this case for the reason that the 
Referee, without inter-state commerce having been pleaded by the 
defendant, or suggested at the hearing, found by the testimony of 
the claimant alone that, at the time that he was injured, he was en- 
gaged in inter-state commerce because he said that the train that he 
was assisting in making up was en route for New York. 

The claimant selected the forum of the Workmen's Compensation 
Board where he is supposed to have placed himself in good faith. 
It occurs to us that it would constitute trifling with the law for a 
workman to file his claim for compensation, and then challenge the 
jurisdiction of the tribunal before which he had elected to present 
his claim. 

The defendant in this case raised no question of inter-state com- 
merce, and only placed in issue the question as to whether or not the 



41 

claimant bad suffered an accident in the course of his employment 
This was the only real issue before the Referee, and under the plead- 
ings the only one we ought to consider. While it is true the claim- 
ant testified that he was assisting in making up a train that was 
bound for New York, nevertheless the accuracy of his testimony in 
that respect might be very successfully questioned, but we take it 
that what the witness said in that respect is immaterial and irrelev- 
ant to the issue that had been raised by the pleadings. 

Under the uncontradicted testimony of the claimant, it becomes 
our duty to find that, while in the employ of the Pennsylvania it. K. 
Co. on July 15, 1918, he met with an accident by striking his knee 
against a car that he was about to assist in moving. The injury im- 
pressed him as being only slight, and he did not report it to the de- 
fendant until August 3 following. We cannot find as a fact, how- 
ever, that this was an unnatural thing for him to do, as he was try- 
ing to assist himself and the nature of the accident was not such as 
to alarm him or to even suggest to him that it was of sufficient 
seriousness to make auy formal announcement of the fact that be 
had suffered this apparently slight accident. But like the majority 
of knee injuries, it gradually and steadily developed into serious 
consequences. 

On August 3, he reported to Dr. W. B. Clark of Butler, who after 
giving the patient one treatment advised him to call upon Dr. Grear, 
who is the defendant* si surgeon. In consequense of a call upon this 
physician, the claimant was' taken to the Butler County Hospital 
where he remained for eight weeks under the care of the physician, 
from which hospital be was Bent home by the company's physician. 

We also find that he then returned to his home and remained there 
until September 16, 1919, when he became a patient of the Allegheny 
General Hospital, underwent an operation and remained there as a 
patient until July 9, 1920. 

At the present time the right knee joint is stiff. At the time of 
the incident which he describes as an accident, his average weekly 
wage was in excess of $20. per week. There is no evidence of record 
to show that the defendant suffered any disadvantage or that the 
claimant's injuries were aggravated by the reason that he did not 
report his accident until August 3. During the period from October, 
1918, until September, 1919, he was practically without the service 
of a physician, and this was possible because of the fact that the 
defendant's surgeon who had full knowledge of the case after August 
3, and who was at liberty to have visited him at any time, apparent- 
ly ceased his professional visits at his own volition. 

There is some evidence of record as to the earnings of the claim- 
ant at the -present time. The claimant admitted upon being called 
by the defendant, that he went to work on July 12, 1920, at $5.04 



42 

per day, which he alleges is lees than he would have been receiving 
now had he not been injured. This is a probability of which we can 
take no notice. At the time he was injured, his wage was $1.96 per 
day. He testified that the same class of laborer was being paid 
$6.18. We cannot assume, however, that the claimant would have 
been earning this amount for many things might have happened to 
have made it impossible for the claimant to have been thus advanced. 
We must take his wages as they were at the time of the accident. 

AWARD. 
It is hereby ordered that compensation at the rate of $10 per week 
be paid to the claimant, Robert C. Englemann, from July 29, 1918, 
until July 12, 1920, at which time the obligation of the employer to 
pay compensation is suspended until such a time as the claimant 
shall be compelled to quit work because of a recurrence of his dis- 
ability due to the injury of July 15, 1918. In the event that this 
should happen, compensation will then be revived. 



Shad v. Alden Coal Co. 

Pulmonary tuberculosis — Natural result of «ccidcti(. 
When the resistauee of nn employe is so lowered as a result of the injuring 
austaiiicd by the accident, that he contracted pulmonary tuberculosis which caused 
his death, compensation will be allowed. 

Claimant represented by Roger J. Bever, Wilkes-Barre. 
Defendant represented by H. A. Davis, Philadelphia. 

OPINION BY COMMISSIONER JARRETT— January 5, 1921. 

HEARING DB NOVO. 
Hearing de novo held before the board at Wilkes-Barre. Test- 
imony was taken and the testimony which was taken before the 
Referee was adopted to be considered as if taken before the Board. 
FINDINGS OP FACT. 

1. The deceased employe, Andrew Shad, upon whose death com- 
pensation is claimed, and the defendant were bound by the provisions 
of the Workmen's Compensation Act of 1915. 

2. The claimant is Ruth M. Shad, widow of the said Andrew Shad, 
tor herself and their children under the age of sixteen years, to-wit: 
Francis, born October 19, 1906, Griffith, born August 25, 1912, and 
Norman, born September 1, 1918. The claimant's and children's 
residence is No. 254 Roberts Street, Sheatown, Alden Station. 

3. The defendant is the Alden Coal Co., whose business is the 
mining of coal. The insurance carrier, the party liable, is the 



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43 

Employers Liability Assurance Corp., whose office is at No. 410 Wal- 
nut Street, Philadelphia. 

i. The said Andrew Shad, was employed as a coal iiiiuer by tbe 
defendant at its No. 2 shaft, located at Alden Station, oh Juue 8, 
1916, and on said date, while in the course of his employment on the 
premises aforesaid of the defendant, while helping to put up mine 
timbers in the shaft, a piece of timber fell on him, fracturing his 
shoulder blade and several ribs. 

5. The defendant paid compensation to the said Andrew Shad 
for disability due to the accident, from the 14th day after the accident 
up until October 15, 1919. 

C. The resistance of the said Andrew Shad was so lowered as a 
result of the injuries sustained by the accident that he contracted 
pulmonary tuberculosis which caused his death November 30, 191!*. 

7. The injuries sustained by the said Andrew Shad as a result 
of the accident was violence to the physical structure of his body 
as contemplated by the Act, and the pulmonary tuberculosis of which 
he died was "a natural result therefrom." 

8. The said Andrew Shad left to survive him, the claimant, Ruth 
M. Shad, his widow, and the children named above, who were at the 
time of his death wholly dependent upon him for support. 

. 9. At the time of the accident the said Andrew Shad was earning 
an average weekly wage of $10.72. 

10. The funeral expenses were in excess of flOO, no part of which 
was paid by the defendant. 

CONCLUSIONS OP LAW, 

1. Both the said Andrew Shad and the defendant were, at the 
the time of the accident, bound by the provisions of the Workmen's 
Compensation Act of 1915. 

2. The injuries suffered by the said Andrew Shad were injuries 
to the physical structure of hia body, received in an accident while 
in the course of his employment on the premises of the defendant, 
and death followed in consequence of said injuries. 

There is accordingly awarded to the claimant, Ruth M. Shad, for 
herself and her three minor children, Francis Shad, Griffth Shad 
and Norman Shad, and against The AJclen Coal Co., and its insurance 
carrier, The Employers Liability Assurance Corp,, Limited, the party 
liable, 55% of the weekly wage of the said Andrew Shad, deceased, 
to-wit, $16.72, or #9.20 per week for a period of 1 27 weeks and 4 days, 
to be computed and paid from and including December 1, 1919, 
After ihe payment of compensation for said period, then to the 
guardian of Francis. Shad, Griffith Shad and Norman Shad. 35?; 
of the said wages, to-wit, *lfi.72, or f5.85 per week up to and includ- 
ing October 19, 1922, when Francis Shad becomes sixteen years of 



44 

age; then to the guardian of Griffith Shad and Norman Shad, 25% 
of said wages, to-wit, $16.72, or $4,18 per week up to and including 
August 25, 1!>28 when Griffith Shad becomes sixteen years of age ; 
then to the guardian of Norman Shad, 15% of said wages, to-wit. 
$16.72, or $2.51 per week up to and including September 1, 1934, when 
Norman Shad becomes sixteen years of age. The compensation is to 
be paid as the deceased's wages were paid, unless commuted by tbe 
Board, as provided by the Act. 



Byerly v. Turner Construction Co. 

Costa — When allowed. 

The rules adopted by tlie Workmen's Compensation Board provide, that costs 
incurred by a party wilt not be included in an award unless the party shall serve 
a copy of the bill of costs by moil upon the adverse party or his counsel or insur- 

Appellee represented by Curtis C. Lesher, Lewisbuig. 
Appellant represented by H. A. Davis, Philadelphia. 

OPINION BY COMMISSIONER HOUCK— January 11, 1921. 

This is an appeal by the defendant from an order of the Referee 
refusing to terminate a compensation agreement. The order, as made 
by the Referee, .does justice between the parties. The Referee has 
found that the claimant has suffered the loss of the use of his left 
eye and this finding is supported by the evidence. He has also found 
that the claimant's disability, other than the injury to the left eye, 
has not terminated. There is some evidence in the record that the 
defendent offered the claimant work, but there is nothing to show 
that the employment offered was suitable to the claimant's present 
condition and nothing to show whether he would be able to perform 
it. If suitable employment is offered the claimant, it is his duty, 
of course, to accept it. When this is done the claimant's loss of 
earning power, if any, can be definitely ascertained and the com- 
pensation agreement modified accordingly. 

The Referee included in the award costs amounting to $19.86. The 
defendant contends that this was error inasmuch as the defendant 
was not served with an itemized bill of costs. The rules adopted by 
the Workmen's Compensation Hoard provide that costs incurred by 
a party will not be included in an award unless the party shall 
serve a copy of the bill of costs by mail upon the adverse party, or his 
counsel or insurance carrier. Since such a copy was not served on 
the defendant, the costs cannot be allowed in the award. 

The Referee's award is, therefore, modified by striking from it tbe 
provision that the defendant shall pay the costs amounting to $19.86. 



With this modification the Referee's findings of fact and conclusions 
of law are afnfmed, and the appeal is dismissed. 

Huey v . Soisson. 

Employe — Distinguished from independent contractor. 

A person employed to get out cool to be paid for by so much per bushel for 
the coal removed, is an employe and not an independent contractor, and there- 
fore entitled to e< mpenaation. 

Claimant represented by 'A. E. Jones, Uniontown. 

Defendant represented by S. R. Goldsmith, Connellsville. 

OPINION BY COMMISSIONER HOUCK— January 11, 1921. 

The claimant's deceased husband was engaged in taking out coal 
at a mine in Moyer, Pa., and on February 7, 1919, the wagon on which 
he was hauling coal struck a timber and jumped the track, throwing 
the deceased across the rear end of the wagon and causing a rupture 
of the bowel, which resulted in his death on March 1, 1919. The 
coal in the mine where the deceased was working was owned by 
W. P. Soisson, the defendant, and the surface of the land was owned 
by one, H. W. Detweiler. Previous to the accident the defendant 
requested Detweiler to take out the coal in this mine. Detweiler 
refused to do this but agreed to get someone to get the coal out 
for the defendant, and Detweiler secured the deceased to take out 
the coal and deliver it to the Soisson brick yard at Moyer. 

The Referee found that the deceased was an employe of the 
defendant, and that he met with an accident in the course of his 
employment which resulted in his death, and awarded compensation 
to the claimant. The defendant contends that this was error and he 
claims that the deceased was an independent contractor. A great 
deal of testimony was taken and some of it is more or less uncertain, 
but it appears from all the evidence that the deceased was engaged by 
Detweiler, for the defendant, to remove the coal owned by the defen 
ant; that the deceased and his father worked together and at times 
employed other help. They were paid so much per bushel for the 
coal removed. When they started to work the price was nine cents 
per bushel, later the defendant reduced it to eight or eight and a 
half cents per bushel, and still later to seven cents per bushel. This 
money was paid to the deceased through Detweiler, and Detweiler 
retained one cent per bushel for the privilege of hauling the coal 
over his surface land. It further appeared that the defendant 
directed where to mine the coal, and that he retained more or less 
control over the progress of the work and the manner of its perform- 
ance. The defendant furnished some of the necessary material used 

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4ii 

by the deceased and his father, and they furnished the rest. Tnew 
was no time limit in which the coal was to be removed, and the de- 
ceased and his father, after paying their bills, divided the money they 
were paid between them. 

Taking into consideration all these facts, the Board is of the 
opinion that the deceased was not an independent contractor, and 
that lie was an employe of the defendant. The fact that the defendant 
retained control over the manner of the doing of the work and the 
fact that he arbitrarily fixed the price per bushel lead, irresistibly, 
to this conclusion. The deceased, in this case, was in a position 
similar to the position of the so called contract miners in the 
anthracite mine region, and it has always been held that they are 
employes and not independent contractors. Accordingly, there is no 
error in the findiugs of fact of the Referee,, and his conclusions of 
law result logically from liis findings of fact. 

The findings of fact and conclusions of law of the Referee are, 
therefore, affirmed, and the appeal is dismissed. 



Feraliski v. Pennsylvania R. R. Co. 

Reasonable operation — Refusal to submit to. 

Refusal to submit to a reasonable oiierutivu forfeits right to compensation. 

Claimant represented by B. II. Giffcn, Pittsburgh. 

Defendant represented by II. Z. Maxwell, Philadelphia. 

OPINION BY COMMISSIONER HOUCK— January 11, 1921 

The claimant, in this case, was injured on October 2, 1919. He was 
struck on the right ami by a spring from a friction draft gear, 
causing a fracture of the right ulna about the lower third. The 
claimant was taken to Dr. N. H. Bennett who treated him and 
attempted to reduce the fracture. The bones, however, did not unite 
and the doctor advised an operation. It will require an operation 
to obtain a good uniou. The claimant refused to submit to the 
operation and on February 6, 1920, he filed a claim for compensation. 
On February 7, 1920, he returned to work for the defendant company 
at a lower wage than he received prior to the injury. A hearing on 
the claim petition was held on March 2, 1920. At that time it was 
developed that the claimant could not recover without an operation, 
and that the operation necessary is a reasonable one, would not entail 
any serious consequences and would, in all probability, be successful. 
The Referee asked the claimant whether he was willing to undergo 
the operation, and he stated that he was, and he agreed to go to the 
hospital to be operated on on March 4 The Referee than continued 



47 

the hearing until such time as the claimant would return from the 
hospital 

The re-hearing was held on June 2, 1920, and the testimony taken 
at that time shows that the claimant absolutely refused t» undergo 
the operation when the time came, and at the hearng lie persisted 
in his refusal. The Referee made an award in favor of the claimant 
on the basis of total disability up to February 7, 1920, in the total 
sum of J1C5. He also awarded him compensation for partial dis- 
ability at the rate of $6.33 per week until the disability of the claimant 
ceases or changes in extent, with the provision, however, that the 
claimant was required to accept the medical services tendered him 
by the defendant within a reasonable time. From this award the 
defendant has appealed, objecting particularly to the award for 
partial disability. 

The Board is of the opinion that the Referee erred in awarding the 
claimant compensation for partial disability. The claimant was 
given everj- opportunity to undergo a reasonable operation tendered 
to him without cost by the defendant company. He refused to under- 
go the operation and at the second hearing persisted in his refusal. 
His refusal to submit to the operation is unjustifiable and so long as 
he continues in the refusal he forfeits his right to compensation. The 
testimony showa clearly that if the claimant had submitted to the 
operation, he would be fully recovered. 

The Referee's award is, therefore, modified by striking from it the 
provision giving the claimant compensation for partial disability 
after February 7, 1920, and the claimant is awarded compensation 
up to February 7, 1920 only, or a total sum of ?165. With this 
modification the award is affirmed. Should the claimant consent to 
undergo the operation, the Board, if it sees fit, may grant him com- 
pensation for the period during which he will be incapacitated as a 
result of the operation. 



Lutz v. Foundation Co. 

Dependency — Evidence of. 

Testimony of relatives of decedent who lived with him in the United Stat' 
that they mv decedent send money to his fmnily abroad is not sufficient i 
au stain an award. 

Claimant represented by Vernon Hazzard, Monongahela. 
Defendant represented by Vinton F. Porter, Pittsburgh. 



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48 

OPINION BY COMMISSIONER HOUCK— January 11, 1921. 

In this case the widow and children of the deceased employe are 
residents of Ozecho-Slovakia and their claim for compensation was 
prosecuted by Vernon Hazzard as their attorney-in-fact. It is sought 
to prove dependency by the testimony of certain relatives of the de- 
ceased who lived with him in the United States and saw him send 
money to his family abroad. There is no testimony by the widow, 
and the evidence, as it stands, is not sufficient to sustain an award. 
It is, therefore, directed that the record be returned to Referee H. 
B. Henderson for further hearing, and it is suggested that letters 
rogatory be prepared by the claimant and cross-interrogatories pre- 
pared by the defendant to be sent to some regularly constituted au- 
thority, with power to administer oaths, at or near the residence of 
the widow. The widow, or any other witnesses the parties may 
desire to interrogate, can then be sworn and the answers to the inter- 
rogatories taken. After the interrogatories have been answered they 
should be returned to the Referee for his further consideration in 
determining the question of dependency. 



Scanlon v. Delaware, Lackawanna & "Western R. R. Co. 

Course of employment — Employe killed on way home from work. 

Where an employe was found on the trucks of the defendant, his death is com- 
pensable when the evidence shows that lie was on his way from work, was on 
the premises of the employer when struck by one of its engines, and that trans- 
portation was furnished him by the defendant. 

Interstate commerce — As a defense — Burden on defendant. 



The burden of proving the inter-state character of employment rests on the 
defender t, and such defense must be made out by positive testftnony. 

Appellee represented by M. J. Martin, Scranton. 

Appellant represented by J. H. Oliver, Scranton. 

OPINION BY COMMISSIONER JARRETT— January 11, 1921. 
HEARING DE NOVO AT SCRANTON. 

Testimony was taken and the testimony taken before the Referee 
was adopted to be considei-ed as if taken before the Board. 

James Scanlon, the deceased employe upon whose death compensa- 
tion is claimed, was in the employ of the defendant on October 8, 1919. 

The defendant is John Barton Payne, Director General of Rail- 
roads under the Proscription <Alct of 1920, operating the Delaware, 
Lackawanna & Western R. R., which is a steam railroad and engaged 



49 

The deceased was in the employ of the defendant at the time stated, 
as an air inspector in the defendant's yard known as the "Hampton 
Hamp Yard," situate in the borough of Taylor, Lackawanna county. 
His duties as an air inspector were to go over the trains made up, 
to see that all air appliances were in good order. 

The deceased worked from i o'clock P.M. to 12 mid-night on Octo- 
ber 8, 1919. On quitting work he, with other employes, left the pre- 
mises of the defendant, crossed the city of Scranton by its streets as 
it waB their usual custom, for the Scranton passenger station of the 
defendant, which is a distance of two and one-half miles from the 
Hampton Hump yard. He was last seen alive between 1 and 1:30 
A.M. the morning of October 9, 1919 at the intersection of Washing- 
ton Avenue and Lackawanna Avenue in the city of Scranton. The 
body of the deceased was found about 6 o'clock A. M. October 9, 1919 
on the west bound freight track in front of the said Scranton passen- 
ger station, a distance of one thousand feet from the inter-section of 
said streets. 

There were no eye-witnesses to the accident but at the time he met 
his death, however it happened, he was on his v,'»y home from work 
and was at a place on the most direct route from his place of work 
to the Scranton passenger station, and his death followed as a result 
of an accident by having been run over by some train of the defen- 
dant, either while he was standing on the track or walking on the 
track or in attempting to board a train of the defendant to go to his 
home. 

The deceased lived in the borough of Moscow, a distance of thirteen 
miles east of the city of Scranton' and was furnished with a pass 
on the railroad of the defendant, by the defendant, for use between 
Scranton and Moscow, which wbb for the purpose of conveying him, 
free of charge, from Moscow to Scranton and return. He usually 
left his home at Moscow about 12 or 12:30 in the daytime and traveled 
over the railroad of the defendant to Scranton, free of charge by 
virtue of the pass ; then crossed the city to his place of employment ; 
he did this daily. After his hours of employment were finished, in 
returning home he sometimes took a passenger train of the defendant 
from Scranton station, which slowed up at Moscow to allow the 
employes to get off, and sometimes would take a freight train of the 
defendant direct from the Hampton Hump yard, going east, and 
sometimes came to the Central City yards in Scranton and take a 
freight train or other train of the defendant leaving towards his home 
in Moscow, upon all of which trains the deceased was permitted to 
ride. 



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The defense in substance is as follows: 

That the deceased was a trespasser. If not a trespasser, his 
death was nut caused by accident received while in the course of Ids 
employment as eo intern plated by the Workmen's, Compensation Act 
of 11)15 and if he was in the course of his employment as provided 
by the Workmen's Compensation Act of 1915, the Workmen's Com- 
pensation Board does not have jurisdiction for the reason that the 
deceased was employed in inter-state commerce. 

We will first dispose of the inter-state commerce question. The 
burden is on the defendant to prove by substantive evidence that the 
employe was engaged in interstate commerce. I)i Donato r. Phila. 
& Reading Rwy. Co. 266 Pa. 412; 6 Dept. Reports 563; Knorr v. 
Central R. R of N. J., 268 Pa. 172; 6 Dept. Reports 1690, and Sehalzle 
v. Lehigh Valley R. R. Co., 3 Hoard Decisions 198; 4 Dept, Reports 
1694. 

The presumption therefore in all cases where an employe is injured 
on a railroad, which is engaged in inter-state and intrastate com 
merce and the parties are operating under the Workmen's Com- 
pensation Act of 1915, is that the employe is engaged in intra 
state commerce, and the Board has jurisdiction. The defendant, to 
remove that presumption, proved that on this particular night, 
to-wit, October 8, 1913, the deceased, with William Boyle, a. fellow 
employe, inspected four trains designated as trains 789, 780, 387 
and 352, and then called Mr. R. B. Arnold, who testified that he is 
the yard master at Hampton Hump yard and that he is acquainted 
with the make-up of all trains leaving said yard; lhat train 78(1 was 
the 6 o'clock train and was made up of cars for Utica, in the State 
of New York; that train 387 was the 7:30 train and made up of 
cars for Buffalo, in the State of New York ; that train 352 was the 
8:30 train known as the Syracuse train, made up of cars, all of which 
were billed to points in the State of New York. He had no record 
of train 789 but on cross-examination, when asked about this train, 
testified that he "would say" that all work done by the deceased on 
the night of October 8 would be on inter state "stuff" and gave as his 
reason that intra-state trains are all local and are not made up 
until the last thing in the morning. 

We think that this testimony is in sufficient to meet the burden of 
proof required of the defendant. Mr. Boyle could give no positive 
information as to the character of all the trains inspected although 
he admitted that there were records which showed the work perform- 
ed by the deceased the last night he worked . His, information on 
the train unaccounted for and his reasons therefor, it seems to us, 
is only assumption with him; he was not positive. The defendant 
having these records, and bound to know the crew in charge of this 



51 

train, should have furnished such evidence. It would be substantive, 
such as is required. To hold that the train unaccounted for was an 
interstate train would lie relying entirely upon tlic assumption of 
Mr. Arnold. 

It is true that the evidence does not disclose whether or not the 
train unaccounted for was inspected last, hut this burden was upon 
the defendant. In accordance with what we have said, it is fair to 
presume, the presumption being in favor of the claimant, that it was 
inspected hist and was an intrastate train. 

It is true that there are decisions that hold that where an employe 
is engaged both in interstate and intrastate commerce, that the 
work is to be classified inter-state, but in all of these cases the work 
was so closely related to inter-state commerce as to become a part of 
it, that it was practically impossible to separate the employe's duties 
as between inter-state and intra-statc commerce, but here the 
deceased's work could easily be determined as it was impossible for 
him to inspect an interstate and an intrastate train at one and the 
same time. 

We feel that this case is controlled by what is stated and cited in 
Di Donato v. Phila. and Reading R. R. Co., 266 Pa. 412; 4 Dept. 
Reports 2706. We hold that this controls, having in mind Erie R. 
R. Co. <\ Collins, 00 U. S. Supreme Court OO; 6 Dept. Reports 1025; 
and Erie R. R. Co. v. Szari, OO IT. S. Supreme Court 00; 6 Dept. 
Reports 1931. 

We are satisfied, under the facts as presented, that the deceased 
met his death by accident while in the -course of his employment, as 
contemplated by the Workmen's Compensation Act of 1915: See 
Kuorr v. Central R. R. Co., of X. J. supra; Schott v. P. R. R-. Dept. 
Reports 2783. 

There were no eye-witnesses to the accident but the circumstances 
are conclusive that the decedent met his death as stated. Flncker 
v. Carnegie Steel Co., 263 Pa. 113; 3 Dept. Reports 2989. 

We therefore hold that the claim is compensable and, in addition 
to the facts found above, we snd as follows: 

FINDINGS OF FACT. 

1. The claimant and the defendant were bound by the provision.- 
of the Workmen's Compensation iA!ct of 1915. 

2. The deceased's death followed as a result of injuries received 
by accident on the premises of the defendant as contemplated by the 
Workmen's Compensation Act of .1915. 

3. The said injuries resulting in death were caused by the oper- 
ation of the defendant's business, to-wit, a train of the defendant. 



4. The premises, while not occupied by the defendant as concern 
ed the immediate place of the deceased's employment, were under 
the control of the defendant. 

5. The deceased's presence at the place of the accident was 
required by the nature of his employment. 

B. At the time of the death of the deceased lie was earning wages 
in excess of |20 per week. 

7. The deceased left to survive him and wholly dependent upon 
him for support, the claimant, Caroline Scanlon, and the following 
children, all under the age of sixteen years: Edgar Scanlon, born 
August 14, 1906 ; James Scanlon, born April 5, 1908 ; Helen Scanlon, 
born June 7, 1910; Alice Scanlon, born March 16. 1912, and Eileen 
Scanlon, born March 19, 1914. 

CONCLUSIONS OF LAW. 

We adopt as our conclusions of law, Findings of Fact 1, 2, 3, 4 
and 5. 

(The award follows.) 



Shultz v. Haffelfinger Wall Paper Co. 

Fire in employer'* plant resulting in death of employe — Compensation allowed. 

Where fire breaks out in employer's plant during lunch hoar, and an employe 
goes into the cellar of the plant to get his coat and is afterwards found burned 
to death, his widow is entitled to compensation. 

Claimant represented by F. O. Noel, Centennial and Beidleman & 

Hull, Harxisburg. 
Defendant represented by B. W. Hankee, Harrisburg. 

■ OPINION BY COMMISSIONER HOUCK-^Ianuary 11, 1921. 

The claimant's deceased husband was employed by the defendant 
company. On March 10, 1920, he worked until 12 o'clock noon when 
the whistle blew for lunch. The deceased then went to the boiler 
room of the defendant's plant to eat his lunch. It was customary for 
the decedent to carry his lunch to work with him and to eat it on the 
premises of the defendant company. About 12:20 fire broke out in 
the defendant company's plant. Shortly after the lire had started 
the deceased was seen by a fellow employe in the neighborhood of the 
burning plant and he told his fellow employe that he had a coat hi 
the cellar of the plant which in it a check for $300, and ?26 in 
cash. He wanted to know if there- was any possible way for him to 
get his coat and the fellow employe told him that there was but one 
way to go down, and that was the stairway, but that he would not 



like to risk it. The deceased was not seen alive after this conver- 
sation, and on March 14 the body of a male person was found in the 
tisitiPjiient of the defendant company's plant. The head was burned 
entirely off and there was no way by which the body could be identifi- 
ed. There is no doubt, however, from all the facts in the case, that 
the unidentified body found in the basement was the body of the 
claimant's husband, and it was taken to her home and buried by her. 
Prom these facts the Referee concluded that the decedent met with 
his death while in the course of his employment, and awarded his 
widow compensation. The defendant appealed from this award, 
and the chief contention of the defendant is that the deceased was not 
in the course of his employment when he met with his death. 

If an employe ia not actually engaged in the furtherance of his 
employer's 'business or affair^, his dependents ere, (nevertheless 
entitled to compensation if the accident, causing the death, occurs 
on the premises of the employer, is due to the condition of the 
premises, and if the employe's presence is required thereon by nature 
of his employment. It cannot be disputed that the accident, in this 
case, occurred on the employer's premises and that it was due to the 
condition of the premises. That leaves the only question in the case, 
was the employe's presence required on the premises by the nature of 
his employment? The Board is of the opinion that this question 
must be answered in the affirmative. It is not known definitely the 
precise moment at which the accident happened, nor is it known what 
I he deceased was doing at the time of the accident, but even if the 
accident happened during the lunch period, and even if the employe 
entered the burning building for the purpose of saving his coat and 
money, we still think his presence was required on the premises by 
the nature of his employment. The evidence shows that the decedent 
customarily ate his lunch at the defendant's plant, and it has been 
held many times that an employe injured on his employer's premises 
during the lunch hour, when he customarily eats his lunch "on the 
premises, is entitled to compensation. How then can it be held in 
this case that the decedent's presence was not required on the premises 
by the nature of his employment? It may have been negligent on his 
part to have remained in the burning ,plant, or to have returned 
to the plant but negligence on the part of an employe does not defeat 
hie right to compensation. 

Taking into consideration all the evidence in the case, the Board is 
convinced that the Referee committed no error, and his findings of 
fact and conclusions of law are affirmed, and the appeal is dismissed. 



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Wolf i). Meek. 



j»fc — Ij injured while, c 



Where claimant while working with other employes engages in a tussle with 
one of them, and in the course of it falls suffering u Potts fracture of the leg. 
he is entitled to compensation. 

Claimant pot represented by counsel. 

Defendant represented by Win. G. Young, Philadelphia. 

OPINION BY COMMISSIONER HOUCK— January 11, 1921, 

The claimant is a carpenter and on July 24, 1920, he was employed 
by the defendant. At about 11:30 in the forenoon of that day, while 
engaged •with a fellow workman in preparing a joist, he had occasion 
to pass near a fellow employe named Ellsworth Smale. The two 
men returned some remarks relative to the work they were dtiing 
when Smale tapped the claimant on the head with a two foot rule. 
The claimant threw up his hand, caught the rule and threw it into a 
corner. Smale then took hold of the claimant and a tussle begau. 
This tussle lasted probably less than two minutes and in the course 
of it the claimant's foot was caught and he fell over some obstruction 
on the floor, suffering a Potts fracture of the left leg. The Referee 
held that the accident occurred in the course of the claimant's employ- 
ment and awarded him compensation. The Board is of the opinion 
that the Referee did not err in m» finding. 

The findings of fact and conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



Mendeko v. Pittsburgh Coal Co. 

Widow's TC-marriaije- — How compensation is in he paid. 

Upon the re-marriage of a widow, she ia entitled to the compensation payable 
to her for one-third of the three hundred weeks' period remaining, hut not exceed- 
ing one hundred weeks, discounted nt five per cent. 

In computing the romurnantioti due her, any increase of compensation on account 
of children is not to be considered. 

Claimant represented by C. W. Sypniewski, Pittsburgh. 
Defendant represented by G. T. Emery, Pittsburgh, 

OPINION BY COMMISSIONER HOUCK -January 14, 1921. 

This is a petition by the claimant for modification of a compen- 
sation agreement. Stanley Mendeko was killed while in Ihe course 
pf his employment on March 10, 1920, and he left. to survive him a 



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55 

widow, Aneta Mendeko, and two children, Stella, born September 
22, 1909, and 'Jennie, born January 4, 1916. Following the death, the 
widow and the defendant entered into Compensation Agreement No. 
929724 for the payment of compensation at the rate of |12 per week, 
and under this agreement compensation was paid to the widow until 
May 17, 1920, in the sum of $99.41, being for a period of 8-2/7 weeks . 
On May 17, 1920, the widow was married to George Pokrzywa and 
she filed a petition for modification of the compensation agreement 
in accordance with Section 807, paragaph 7, of the Workmen'sCom- 
pensation Act as amended in 1919. The Referee, after hearing, 
modified the agreement by awarding the widow the present value, 
on May 17, 1920, of compensation at the rate of |12 per week for a 
period of 1/3 of 291-5-7 weeks, or 97-5-21 weeks, and to the children 
30% of $20 or ?6 per week from May 17, ,1920, until December 18, 
1925, the end of the 300 week period . And from that date, to 
Jennie Mendeko, 15% of ?20 or $3 per week until January 4, 1932, 
when she becomes sixteen years of age . The defendant appealed 
from this order on the ground that the Referee's calculation is not 
in accordance with Section 307, paragraph 7, of the Compensation 
Act. The Board is of the opinion that the Referee is in error. 

The Workmen's Compensation Act, as amended in 1919, provides 
in Section 307, paragraph 2, 3 and 4, as follows: 
And paragraph 7 provides in part as follows: 

"2. To the widow or widower, if there be no children, 
forty per centum of wages. 

3. To the widow or widower, if there be one child, 
fifty per centum of wages. 

4. To the widow or widower, if there be two or more 
children, sixty per centum of wages." 

"Should any dependent of a deceased employe die or 
remarry, or should the widower become capable of self- 
sapport, the right of such dependent or widower, to 
compensation under this section, shall cease ; Provided, 
however. That upon the remarriage of any widow, other 
than a non-resident alien widow, the employer shall pay 
to such widow the then value of the compensation 
payable to her, during one-third of the period during 
which compensation then remains payable but not 
exceeding one hundred weeks, calculated in accordance 
wiflh the' provisions of soction three hundred and 
sixteen of this article. If the compensation payable 
under this section to any person shall, for any cause, 
cease, the compensation to the remaining persons 
entitled thereunder shall thereafter he the same as 
would have been payable to them had they been the 
only persons entitled to compenation at the time of the 
death of the deceased/' 



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50 

Since the deceased, in this case, was survived by a widow and two 
children, they were entitled to sixty per centum of the wages of the 
deceased, or f 12 per week up until the time of the re-marriage of the 
widow. This was for a period of 8 2/7 weeks, and that amount 
has been paid . 

The Act provides that upon the re-marriage of any widow she shall 
receive the then value of the compensation payable to her during one- 
third of the period during which compensation then remains payable, 
but not exceeding '100 weeks. The widow, however, is not entitled 
to the full 60% of the wages. Compensation payments increase with 
the number of the children left to survive the employe, and the 
children have an interest in the compensation paid. Under the pro- 
visions of paragraphs 2, 3 and 4 above quoted, the widow receives 
40% of the wages if there are no children, and she receives 60% if 
there are two or more children. The widow's interest, therefore, of 
the 60% which is paid on behalf of all the dependents amounts to 
40% of the wages, or ?8 per week. And upon her remarriage she 
is entitled to compensation in a lump sum at the rate of 40% of the 
wages, or |8 per week for 1/3 of the 300 week period remaining after 
her remarriage, discounted at 5% in accordance with Section 316 of 
the Aict. Since compensation was paid for a period )of 8-2/7 weeks, 
when the widow remarried, the remainder of the 300 week period is 
21)1-5/7 weeks, and 1/3 of this period is 97-5/21 weeka The widow, 
therefore, is entitled to a sum equal to the present value on May 17, 
1920, of compensation at the rate .of |8 per week for a period of 97- 
5/21 weeks, calculated in accordance with the provisions of Section 
316 of the Workmen's Compensation Act. 

This payment to the widow is in all respects equivalent to com- 
mutation of compensation and her right to compensation ceases upon 
the payment of this sum. Paragraph 1 of Section 307 provides as 
follows : 

"J. To the child or children, if there be no widow nor 
widower entitled to compensation, thirty per centum 
wages of deceased, with ten per centum additional for 
each child in excess of two, witii a maximum of sixty 
per centum, to be paid to their guardian." 

As soon as the compensation payable to the widow ceases by reason 
of her re-marriage and the payment to her of the then value of her 
compensation, the children are entitled to compensation as though 
tbey had been the only persons bo entitled at the time of the death 
of the deceased. In other words, from the remarriage of the widow 
the children are entitled to thirty per centum of the wages, or $6 per 
week within the limitations of the Act. The two children, therefore, 
are entitled to 30% of ?20, or $6 per week, payable to their guardian, 
for, a period beginning May 17, 1920, and ending December 18, 1925, 



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57 

the end of 300 week period. By that time Stella will have reached 
the age of sixteen. And from December IS, 1925, to the guardian of 
Jennie Mendeko, at the rate of 15% of ?20, or |3 per week until Jan- 
uary 4, 1932, when she becomes sixteen years of age. 

The order of the Referee is, accordingly, reversed, and it is ordered 
that Compensation Agreement No. 929724 he modified in accordance 
with this opinion. 



Fabian v. H. C. Frick Coke Co. 

Widow's re-marriage — How compensation m to paid. 

Upon the re-marriage of a widow, she is entitled to the compensation payable to 
her for oue-third of the three hundred weeks' period remaining, discounted at five 
per cent 

In computing the compensation due her, any increase of compensation on account 
of children is not to be considered. 

Claimant not represented by counsel. 

Defendant represented by C. L. Albright, Scottdale. 

OPINION BY COMMISSIONER HOUCK— January Xi, 1921. 

This is a petition for determination of compensation under agreed 
facts. The facts as agreed upon show that the claimant's deceased 
husband met with an accident while in the course of his employment 
on January 7, 1920, which resulted in his death the same day. He 
left to survive him his widow and two children, both of whom are 
under sixteen years of age. The right |of the widow and children to 
compensation is not disputed but it appears that the widow re- 
married and the parties desire to know how compensation should be 
paid under the Workmen's Compensation Act as amended in 1919. 

Section 307, paragraph 7, of the Workmen's Compensation Act 
provides in part as follows: 

"Should any dependent of a deceased employe die or 
remarry, or should the widower become capable of self- 
support, the right of such dependent or widower, to com- 
pensation under this section, shall cease: Provided, 
however, that upon the remarriage of any widow, other 
than a non-resident alien widow, tihe employer shall pay 
to such widow the then value of the compensation pay- 
able to her, during one-third of the period during which 
compensation then remains payable but not exceeding 
100 weeks, calculated in accordance with the provisions 
of Section 316 of this Article. If the compensation pay- 
able under this section to any person shall, for any 
cause, cease, then compensation to the remaining persons 



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entitled thereunder shall thereafter be the same as would 
have been payable to them had they been the only per- 
sons entitled to compensation at the time of the death of 
the deceased." 

And the same Section, in paragraph 2, 3 and i, provides that com- 
pensation shall he computed on the following basis: 

"2, To the widow or widower, if there be no children, 
forty per centum of wages, 

3. To the widow or widower, if there l>e one child, fifty 
per centum of Wages. 

4, To the widow or widower, if there be two or more 
children, sixty per centum of wages.". 

Since the deceased, in this case, was survived by a wife and two 
children, up until the time of the remarriage of the widow, the de- 
pendents are entitled to sixty per centum of wages of the employe, or 
f 12 per week. 

Upon the remarriage of the widow, she is entitled to the compensa- 
tion payable to her for one-third of the 300 week period, remaining, 
discounted at five per cent as provided in Section 316 of the Act. 
The widow, however, is not entitled to the full sixty per cent of the 
wages. The portions of the lAct above quoted 'show that in case there 
are no children the widow is entitled to forty per cent of the wages, 
and the percentage is increased depending upon the number of chil- 
dren who survive the employe. The widow's interest, therefore, of 
the sixty per cent which is paid on behalf of all the claimants, 
amounts to forty per cent of the wages, or $8 per week. In this case, 
therefore, the widow is entitled to compensation in a lump sum at the 
rate of f8 per week for one-third of the 300 week period remaining 
after her remarriage, discounted at five per cent. 

This payment to the widow is equivalent to commutation of com- 
pensation and her right to compensation thereupon ceases and the 
children are then entitled to compensation as though they were the 
only dependents at the time of the death of the deceased. In other 
words, under Section 307, paragraph 1, of the Compensation Act, 
the children from the time of the re-marriage of the widow will be 
entitled to thirty per centum of the wages, or $6 per week, this com- 
pensation to continue until the end of the 303 week period and there- 
after until they reach the age of sixteen, as provided in the Act. The 
compensation of the children is payable to their guardian. See 
Mendeko v. Pittsburgh Coal Co. decided this day. 



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Washleskie v. Philadelphia & Reading Coal & Iron Co. 

Employe killed irhilc en route fcomc from iisoWt — Compensation alknred. 

Where the employe is killed while on liis wiiy home after work, while wu Iking »n 
a railroad connecting two collieries both owned by the employer, compensation will 
be allowed. 

Appellee represented by Roger J, Dever, WUkes-Bapro. 
Appellant represent ei) by It. I). Tmutinun, I'ottsville, and Voritt 
Auteu, Mt. Camel. 

HEARING DE NOVO AT PniLAPELrHIA, 

OP1NTOX BY COMMISSIONER HOUCK— January 14, 1021, 

The claimant's deceased husband was employed as a miner in tb 1 ; 
Big Mountain colliery of the defendant company. On March 13, 
1920, after he had quit work for the day, he was on his way home 
i raveling over a railroad which connects the Big Mountain colliery 
with the Henry Clay colliery, which is owned and operated by the 
defendant company, when he was struck and killed by a trip of cars 
which was traveling from the Henry Clay colliery to the Big Moun- 
iain colliery. The Referee awarded the claimant compensation and 
the Board granted a hearing de novo. At the hearing de novo the 
testimony taken before the Referee was adopted by the Board and no 
additional evidence was offered. 

Tli evidence shows that the way taken by the claimant's deceased 
husband was a way customarily used by employes of the Big Moun- 
tain colliery. It also shows that the accident (happened on the pre- 
mises of the defendant company and was due to the operation of its 
business thereon. It also appears that there had been a fall of snow ■ 
and due to the depth of the snow the decedent was compelled to walk 
along the tracks. 

From all the evidence in tie case the Board makes the following 
findings of fact: 

FINDINGS OF FACT. 

1. That neither the claimant's deceased husband nor the defen- 
dant company had waived the operation of the provisions of the 
Workmen's Compensation Act of 1915, and its supplements. 

2. That on March 13, 1920, the claimant's deceased husband was 
employed as a miner at the Big Mountain colliery of the defendant 
company at a weekly wage in excess of $20. 

3. That on March 13, 1920, at about 2 P.M., the claimant's de- 
ceased husband, having quit work 'for the day, *was on his way home 
over a route customarily used bv the defendant's employes at Big 

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Mountain colliery. This route was over a railroad connecting Big 
Mountain colliery and Henry Clay colliery, both, the collieries and 
the railroad being owned and operated by the defendant (company. 

4. That, while the claimant was on his way home and before he 
had left the premises of the defendant company, he was struck and 
killed by a trip of cars operated by the defendant company. 

5. That the accident happened on the premises of the defendant 
company at a place when the decedent's presence was required by 
the nature of his employment, and was due to the operation of the 
defendant's business thereon. 

0. That the decedent left to survive him his widow, Stella Covet- 
skie, and the following children: Josephine Covetskie, born Feb- 
ruary 4, 1907, Annie Covetskie, born December 29, 1908, and Frank 
Covetski, born March 20, 1910. 

7. That on April 26, 1920, the widow of the decedeot re-married, 
her name now being Mrs. Stella Washleskie. 

S. That the expenses of the last sickness and burial were in excess 
of $100, no part of which has been paid by the defendant. 

From the foregoing findings of fact the Board draws the following 
conclusions of law: 

CONCLUSIONS OF LAW. 

1. That lArticle III of the Workmen's Compensation Act of 191 S, 

and its supplements, applies; to the contract of employment existing 
between the claimant's deceased husband and the defendant on 
March 13, 1920. 

2. That since the claimant's deceased husband sustained an in- 
jury by accident which resulted in his death while on the premises of 
the defendant, hie presence there being required by the nature of his 
employment, and the accident being due to the operation of the de- 
fendant's {business thereon, the dependents of the deceased are enti- 
tled to compensation. 

(The award follows.) 

Forgin v. Pennsylvania Coal Co. 

Personal represent atircit- -Who are? 

i tlie Act menus tlio resiilnrl)' appointed 



Claimant not represented by counsel. 
Defendant represented by H. J. Connolly, Scran ton. 
OPINION BY COMMISSIONER HOUCK— January 19, 1921. 

This is a claim for compensation filed by Bridget Forgin, the sister 
of Austin Forgin, deceased. The petition shows that Bridget Forgin 



61 

is forty-five years of age. At the hearing counsel for the defendant 
moved to dismiss the petition on the ground that the petitioner is 
not entitled to compensation under the Workmen's Compensation 
Act, and further, that she is not entitled to any funeral expenses 
since she is not a dependent within the meaning of the Act and had 
not been appointed administratrix of her brother's estate. The 
Referee decided to get the facts of the case and then,, if it appeared 
that the employe's death was the result of injuries in the course of 
his employment, the sister could be appointed administratrix and the 
funeral expenses paid to her. After hearing the evidence the Re- 
feree found that the employe's death was the result of injuries su- 
stained while in the course of his employment. He did not award 
compensation to the employe's sister because under the Compensation 
Act she is over the age at which a dependent Sister is entitled to 
compensation. He did award her, however, as the personal repre- 
sentative and nearest relative of the deceased $100 towards the ex- 
penses of the last sickness and burial. The defendant has appealed 
from the Referee's disposition of the case. 

The Board is satisfied that lie Referee did not err jn finding that 
the death was due to injuries sustained in the course of employment. 
Therefore, the defendant is liable to the extent of $100 on account 
of the funeral expenses. The Act provides that this sum shall be paid 
to the personal representatives of the deceased. "The personal re- 
presentatives" means the regularly appointed executors or adminis- 
trators of the decedent's estate. Since it does not appear that 
Bridget Forgin was ever appointed administratrix of her brother's 
estate, the defendant cannot be compelled to pay her the $100 nntil 
she is appointed and presents her credentials. However, in order 
that the case may be finally disposed of without further delay, the 
Board modifies the award of the Referee to read as follows: 

There is awarded to the personal representative of Austin Forgin, 
deceased, $100 on account of the expenses of the last Bickness and 
burial. When such personal representative presents the proper 
credentials to the defendant, the sum can then be paid over. 



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Penlock v. Lehigh Valley Coal Co. 

Widow's re-marriage — Rights of children. 

Defendant's liability to children of deceased employe cannot lie affected in any 
way by anything done by tbe widow. 

The children are entitled to compensation from tlie date of re-marriage of the 
widow until they arrive at tbe age of sixteen . 

Claimant not represented by counsel. 

Defendant represented by Dr. S. P. Mengel, Wilkes-Barre. 

OPINION BY COMMISSIONER HOUCK— January 19, 1921. 

This is a petition for termination of compensation agreement filed 
by the defendant. The petition sets forth that the claimant, Bertha 
Penlock, has been paid compensation from February 28, 1918, to 
September 15, 19211, although she remarried without the knowledge 
of the defendant on October 24, 1918, in consequence of which she 
lias been paid, for the use of her minor child, $767.25, or an over pay 
inont of $ 186.02 more than the total amount the minor child would 
be entitled to receive. The petition also prays for an order of repara ■ 
tion directing the claimant to repay to the defendant the amount of 
the over payment. The claimant filed an answer to the petition 
acknowledging the fact of her re-marriage and alleging that the money 
paid to her was received by her through mistake and should not be 
deducted from tbe compensation due to her minor child after the 
claimant's re-marriage. 

It is well settled that the fact that a widow is paid compensation 
for the death of her husband after her re-marriage cannot affect the 
right of the dependent children to compensation from the date of 
of such re-marriage. Oass v. Aetna Chemical Co., 4 Pa. Workmen's 
Compensation Board, 289. The Compensation Act provides specifi- 
cally that the right of a widow to compensation ceases upon her 
re-marriage and from that time the surviving dependent children nie 
entitled to compensation as though they had been the only persons 
entitled to compensation at the time of the death of the deceased. 
The defendant's liability to the child of the deceased employe cannot 
be aifected in any way by anything done by the widow. The child 
is entitled to compensation from the date of the remarriage of the 
widow until the child reaches the age of sixteen. The Board is, 
therefore, without power to terminate the agrement as to tbe child. 
A supplemental agreement has been made terminating the widow's 
compensation but the child's compensation must be paid irrespective 
of the fact that the widow was paid. The defendant's petition asks 
that an order be made requiring the widow to repay the comjiensation 



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erroneously paid to her. There is nothing in the Compensation Act 
which gives the Board authority to make such an order. 

For the foregoing reasons the defendant's petition for termination 
of the compensation agreement is dismissed. 



Davenport v. Keystone Wagon Works. 

Final receipt U/Aen act aaide. 

WLcrc n claimant signed ilic final receipt mistiikeTi a» to ]■ Jet cumlitiim, tlie receipt 
Will be set aside. 

Claimant not represented by counsel. 

Defendant represented by E. P. Crane, Philadelphia. 

OPINION BY COMMISSIONER JABEETT— January 21, 1921. 

The claimant, while in the employ of the defendant company on 
February 28, 1920. on its premises at Second and Norris Streets, in the 
city of Philadephia, met with an accident. He was employed by the 
defendant, whose business was wagon (builders, as a regular helper 
in the smith shop. The accident is described as follows: "A piece 
of steel in eye ball." 

The parties were, at the time of the accident, bound by the' pro- 
visions of the Workmen's Compensation Act of 1915 and its amend- 
ments, and the injury suffered was such an injury by accident as is 
contemplated by said Act. 

A compensation agreement was entered into by the parties, number- 
ed 933504, which sets out that the claimant's weekly wage at the 
time of the accident was $24.75. The claimant was paid compensation 
under this agreement until May 3, 1920, total compensation of $94, 
at which time he signed a final receipt. On the 8th day of September, 
1920 the claimant filed the petition for review, which is now (before us, 
alleging: -'I signed a final receipt but it is hard for me to secure 
work and I have lost the use of sight of my fright eye." 

Dr. Leighton F. Appleman was called by the Referee and testified 
lliat he examined the claimant's right eye. which, as the record shows, 
wa* the injured eye, at different times, the last lime on October 8. 
1920 and found, upon examination, that the lens of the eye is gone as 
a result of the accident. He found from his last examination that with 
a correcting lens his vision can be improved to 5/fi, which is equivalent 
to 15/20 vision expressed in feet: "that it is impractical for him 1o 
use a lens at his ordinary occupation because with the lens which is 
necessary to give him this vision, the other lens being in place and the 
eye healthy, he gets double vision and the confusion which is brought 



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64 

about by the attempt to use a glass in front of his injured eye, together 
with the sound eye, which requires no glassy causes so much con- 
fuBion that he is practically disabled" ; that this condition is per- 
manent; that without the use of the lens he has about 1/60 or 
2/60 visiou. He further testified that "it is a matter of common 
knowledge that the absence of lens in one eye, and with the other 
eye good, — that the size of the image produced in f the injured eye 
through the strong lens necessary to give him good vision differs Ifrom 
the size of the retinal image produced in the good eye. In other 
words, they do not overlap in both eyes at the corresponding .points, 
with result that there is confusion and so called diplopia, and the 
power of stereoscopic vision is lost Therefore, for technical pur- 
poses, as I have already said, the two eyes do not function together." 

Br. L. W. Deichler testified, in behalf of the defendant, that he 
examined the claimant's right eye on the 28th of June, 1920; that at 
that time it showed a cataractous lens, the result of an injury. He 
was of the opinion, from his first examination, that the two eyes 
balanced one with the other ; that the claimant saw one single image 
with the injured eye and his sound eye working together. Prom 
his examination on the 8th day of October, he found that with the 
aid of glasses he could get little over 75% normal sight, hut without 
glasses he could only get 2% normal sight; that the sight had im- 
proved considerably since his examination in June. From an indus- 
trial standpoint, as to the use of the *eye, he testified that the claim- 
ant hasi protective sight; that is, at objects coming toward him, he 
would be able to see that ohject without being struck, but he was 
not able to read or see at a distance and that this condition is per- 
manent; that the cataract has completely destroyed the lens. The 
doctor did not test the eye to see if they co-ordinate when he made 
his examination on October 8. On page' 9 he testified: "I didn't 
re-test him for the fusing of the images on the 8th day of October 
because of the period record, whereas, from Dr. Appleman's remarks, 
T presume his testimony is based on a later examination." The 
doctor was of the opinion that the claimant has suffered a complete 
loss of the use of vision of the injured eye so far as industrial purposes 
are concerned without the aid of 'glasses. 

The claimant testified that at the time he signed the final receipt, 
be did not [realize the condition of his eye and that the use of the 
eye was lost ; that he did not know he was signing papers to close the 
case. 

The Board has held that we are not to take into consideration the 
aid of glasses ; see Lutton v. Glen Brook Coal Co., 6 Dept. Reports 
1362, but we are satisfied that the testimony here establishes the 
fact that the ^claimant has Jost the industrial use of his right eye 



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65 

oven with the aid of glasses, for the reason that the eyes do not co- 
ordinate. This has been testified to by Dr. Appleman, who tested 
his eyes on October 8. Although Dr. Dedehler examined him on 
October 8, he did not make the tests as to whether or not the eyes 
coordinate, so we must rely on the testimony of Dr. Appleman. We 
therefore find as a fact that the claimant has lost the use of his right 
eye for industrial purposes as a result of the accident. We further 
find as a fact that the claimant signed the final receipt, mistaken 
as to his condition. 

From the above findings of fact, we arrive at the following con 
elusions of law: 

CONCLUSIONS OF LAW. 

1. That the claimant and defendant, at the time of the accident, 
were bound by the provisions of the Workmen's Compensation Act 
of 1915. • 

2. That the injury suffered by the claimant, which resulted in the 
loss of his right eye, was such an injury by accident on the premises 
of the defendant, as is contemplated by the said Act. 

The final receipt is accordingly set aside. The compensation agree- 
ment is modified as follows: 

That the defendant, The Keystone Wagon Works, Philadelphia, 
by its insurance carrier, the Continental Casualty Co., 426 Walnut 
St., Philadelphia, pay to the claimant, Newell Davenport, $12 per 
week during 125 weeks; the defendant to receive credit for the pay- 
ments already made. 



lterrimau v. Lorain Steel Co 

Deprndencg— Mnlhtr i,n -»<«. 

Where the mother linil no est u to lit tlin time of the dentil of her son, but wim 
being supported by tile deeeused :nul her other children, unit she looked to her ehil.t 
ren for her support nml mii:iit('t:iiu<-e. Held: she iviis iiui'tiully dependent on deeetl 
ent and entitled to comiH-inuitioii. 

Claimant represented by Charles C. <irecr. Johnstown. 
Defendant represented by Percy Allen Rose, Johnstown. 

OPINION BY COMMISSIONER JARRETT— January 28, 1921. 
HEARING OE NOVO. 

At the hearing de novo testimony was taken, and the testimony 
taken before the Referee was adopted to be considered as if taken 
before the Board. 

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66 

The claimant, Ann Berriman, asks compensation for the death of 
her son, William Berriman, on the ground that she was, at the time 
of his death, dependent upon him for support. 

FINDINGS OF FACT. 

1. The said William Berriman was employed by the Lorain Steel 
Co. as an operator of a steam hammer, at its plant at Johnstown, at 
an average weekly wage in excess of |20, and while on the premises 
of the defendant, in the course of his employment, on December 5, 
1919, a steam pipe bursted and deceased was scalded so seriously that 
it resulted in his death on December 13, 1919. 

2. That at the time of his death he was unmarried and left no 
children to survive him, but was survived by his mother, Ann Berri- 
man, the claimant, and several brothers and sisters, all of whom 
were over sixteen years of age. 

3. From the time the claimants husband died in 1911, she has 
resided with -her married children at different places, and at various 
times received contributions from the deceased, the last contributions 
from him being about the holiday season, 1918, $100 and |2G in the 
spring of 1919. 

4. The claimant js 79 years of age, had no estate at the time of 
the death of her son but was being supported by the deceased and her 
other children. She looked entirely to her children for her support 
and maintenance. The testimony establishes the fact that she was 
partially dependent on the deceased. 

It is contended by the defendant that the claimant was not d e pen- 
dent. Tt is true that the contributions made by the deceased were 
at irregular intervals but the testimony shows that the claimant was 
partially dependent upon the contributions for her .support. Sec 
EUis v. Son Shipbuilding Corp., 6 Dept. Reports 2070. 

The claimant did not say in plain words that she was dependent, 
but her testimony clearly indicates that she was. 

Prom the above findings of fact, we arrive at the following conclu- 
sions of law : 

CONCLUSIONS OF LAW. 

1. That the deceased, William Berriman, and the defendant, The 
Lorain Steel Co., at the time of the accident which caused his death, 
were bonnd by the provisions of the Workmen's Compensation Act 
of 1915. 

2. That the injuries suffered by the deceased, which caused his 
death, were such injuries by accident received while in the course of 
his employment on the premises of the defendant, as are content- 
by said Act 

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67 
AWARD 

Compensation is awarded to the claimant, Ann Berriman, and 
against the defendant, The Lorain Steel Co., 20% of J20 or H per 
week for a period of 300 weeks, dating from December 19, 1919. 
There is also awarded to the claimant, the earn of $100 to apply 
on the expenses of the last sickness and bnrial of the deceased. 



Witmeyer v. State Workmen's Insurance Fund. 

Hand — Lot* of vie of — Distinguished from partial disability. 

Compensation will not be disallowed for loss of the use of n hand merely be- 
cause iu its crippled condition claimant might he able to use it in the same em- 
ployment in which she was engaged to the exclusion of all other occupations. Each 
case must be determined by its own facta, and no standard of incapacity can be 
ret np by which etch ense can be determined. 

Claimant represented by Eugene I>. Siegrist, Lebanon. 
Defendant represented by Samuel I. Spyker, Huntingdon. 

OPINION BY MACKEY— January 28, 1921. 

This is a petition to set aside the final receipt, reinstate the com- 
pensation agreement, and modify same to provide for the loss of use 
of hand. 

A compensation agreement was executed between the petitioner 
and the State Workmen's Insurance Fund because of an injury 
suffered by the claimant while in the employ of the Hershey Choco- 
late Co. It seems that while employed by the latter, the petitioner 
was engaged in concurrent employment as organist for the First 
Lutheran Church. Annvtlle. She was thus engaged but one day a 
week. .At the time of her injury, this Sabbath employment had 
been temporarily discountinued because of the minister's vacation. 

The petitioner had finished a four years' course on the pipe organ 
at the Lebanon Valley College Conservatory of Music, having gradu- 
ated in 1919. She was continuing her course at the same institution 
and would have graduated in another department during the present 
year. She was specializing in music and preparing horself for that 
profession, as her life work. She is 19 years of age. Her combined 
wage was in excess of *30 per week. The injury she suffered is the 
amputation of the thumb of her right hand immediately back of the 
second joint, and also the loss of the index finger of the same hand 
between the second joint and the knuckle, while the third or middle 
finger was amputated at or about the third joint. There was con- 
siderable testimony taken as to the opportunities that might be or are 



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68 

open in the defendant's factory where the petitioner could be em- 
ployed in her condition. The evidence [indicated that she would be 
able to earn more money than she was receiving in her concurrent 
employment. 

This testimony has no bearing upon the real question at issue, 
and that is, whether she lost the use of her hand, in this ruspect we 
are not inclined to treat the loss of a member from the standpoint 
of industry exclusively, for Judge Stern Of Common Pleas Court 
No. 2, Philadelphia county, very clearly pointed out the intention of 
the law in Patrick Quinn v. American Int. Shipbldg. Corp., 6 Dept. 
Reports 2700. In that case _the agreement of facts was as follows: 

"The claimant through an accident when he was about 
14 years of age, practically lost the sight of one eye, 
the amount of vision retained being only sufficient to 
enable him to distinguish light from darkness. About 
twenty years later, while he was employed at the Hog 
Island Shipyard for defendant, a piece of steel became 
imbedded in the same eyu, as the result of which the 
eyeball was eventually removed." 

We said: — 

"We must disallow compensation, for the reason that 
we believe that the Workmen's Compensation Act of 
1915, as amended in 1919 has in mind compensation 
for the loss of the industrial use of an eye, and this 
is what the Act means whenever the expression is found 
giving compensation 'for the loss of an eye*." 

While the Court sustained tbe disallowance of compensation. 
Judge Stern commented upon our observations above quoted, as 
follows: 

"There are three possible views to be taken of this 
question: One is that the use must have been abso- 
lutely destroyed ; that second that it must have been des- 
troyed for all practical intents and purposes, and the 
third that it must have been lost merrily to the point 
where the member was no longer capable of being em- 
ployed for industrial purposes. 

The Court thinks that the proper and fair view to 
take in construing the Act is the second of the three 
possibilities above mentioned, namely, that it must be 
held that the use of the member has been permanently 
lost only when it has been lost for all practical intents 
and purposes: and it is not a sufficient standard that it 
should have been lost merely for industrial purposes. 
Thus, for example an eye may be so weak that its 
owner may not have been able to use it effectively for in- 
dustrial purposes and yet may have retained such . 
amount of vision as to be a source of helpfulness, or at 
least of comfort and pleasure to the owner, and in such 






dent the eye had to be removed, the injured man should 
not be allowed to recover the compensation provided 
in the act for the loss of the eye." 

See Patrick Quinn v. American Int. Shipbldg. Corp., 7 Dept Re- 
ports 146. 

From this broad and humanitarian viewpoint of this particular 
provision of the Act, it would not be proper for us to disallow com- 
pensation for the loss of the use of the claimant's hand merely be- 
cause, in its crippled condition she might bo able to use it in the 
same employment in which she was engaged to the exclusion of all 
other occupations. Each one of these cases must be determined 
by its own facts. We cannot set up any standard of incapacity by 
which each case can be determined. It is not clear just what degree 
of incapacity she has suffered, either as an industrial worker or as 
a performqr upon the organ or the piano forte. 

It is evident, however, that the final receipt ought not to have been 
executed. It was premature, ill-advised, and is not an acquittance 
of the defendant's ultimate liability. - It was executed by the claimant 
in a mistaken idea of her rights. It should be set aside, and accord- 
ingly is so set aside for the purpose of continuing the compensation 
agreement up to the timti when we can determine conclusively the 
exact nature of the claimant's injuries in relation to her activities 
in life. 

The employer ought to take her back to its establishment, as the 
testimony convincingly shows that they are willing to do, give her 
every opportunity to earn as large a wage as possible and place her 
in a form of employment that will require some dexterity of both 
hands in order that she may be educated to the use of her crippled 
hand and become reassured as to her ability to use it. 

While this is being done the compensation agreement will be sus- 
pended. In the course of a few months the petitioner to revive the 
same for the purpose of modifying it to provide for the loss of use of 
the claimant's hand, if facts thus develop to prove such condition, 
may be made. 

In order to make our position perfectly clear, we will re-state our 
order: 

It is ordered that the final receipt he set aside, and that the com- 
pensation agreement, thus reinstated, shall be suspended. Subse- 
quently, a petition can be presented to revive the said agreement in 
order that it may be modified to provide for the loss of the claimant's 
hand or for partial disability if the experience of the claimant under 
the employment which we trust the employer will give her, justifies 
auch a procedure. 



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Keegan v. Delaware, Lackawanna & Western B. B. Co. 

Inter-state oammeroe — When the character of employment ceatet. 

A round-house employe, who Lelpeil to deliver n package of piston packing to a 
certain train for use in inter-staU commerce, and who was injured while returning 
to his duties at the round-house, wns, white delivering tho package, engaged in 
inter-state commerce and the character of the employment at the time would follow 
him until he returned to the round-house. 

Appellee reprtpented by P. E. Kilcullen, Scran ton. 
Appellant represented by 1). B. Reese, Scranton. 

OPINION BY COMMISSIONER JARRETT— February 2, 1921. 

Martin Keegan, the claimant, on Febrauary 9, 1919, was in the 
employ of the defendant, Walker D. nines, Director General of Rail- 
roads, operating the Delaware, Lackawanna & Western R. K,, in the 
round-house of the defendant in the city of Scranton. He was em- 
ployed as a head-light filler ; his duties were to clean the head-lights 
of defendant's locomotives and fill them with oil. 

The defendant operated a steam railroad in thq State of Pennsyl- 
vania; its lines extending into the State of New York, and was en- 
gaged at the time in both intqr-etate and intrastate commerce. 

On the said date the claimant, in company with a fellow employe, 
William Reagan, was walking through the round-house and was met 
by Thomas Helfron, a gang foreman of the defendant. Mr. Heffron 
handed a package to Reagan containing piston packing, with instruc- 
tions to deliver it to a fireman on an engine which was going to a 
point in New York State. The packing was to be usad in the repair 
of the defendant's locomotives at Syracuse, New York. The package 
weighed about nine pounds. On receiving the; packagej, Regan 
started as directed and Keegan was under the impression that he, 
too, was to assist in the delivery of thq package. They both left, 
got on the engine to which the package was to be delivered, some 
distance from the round-house and after Hie package had been de- 
livered, rode on to a point about fifty feet from the Scranton depot. 
They then boarded a train to return to the round-house. The claim- 
ant was standing on a step of one of the cars and after going a short 
distance, was knocked from the car by a steel girder of a bridge which 
did not clear. He fell under the train and was so injured that it 
necessitated the amputation of his left leg. 

The Referee awarded compensation. We are of the opinion that 
the Referee erred, for the reason that Keegan, under his contentions, 
was, while delivering the package 1 , engaged in inter-state commerce 
and the character of the employment at the time would follow him un- 
til he returned to the round-house. Sea Blumenstein v. Philadelphia 
& Reading Ry. Co., 2 Board Decisions 323. 

We are compelled to reverse the Refereee and sustain the appeal. 



Manning v. Atlantic Refining Co. 

Final receipt — When utrickcn off. 

Where the final receipt was improperly executed and represents nothing more 
than the payment of compensation up to that time, same will be stricken from tiie 

Claimant represented by Hugh Roberts, Philadelphia. 
Defendant represented by J. Barton Rettew, Philadelphia. 

ORDER BY THE BOARD— February 2, 1921, 

Now, January 21, 1921, the Board finds that the final receipt was 
improperly executed ; it does not represent anything more than the 
payment of compensation up to that time, and as a complete acquit- 
tance! of the employer's liability has no value whatever. It is ordered 
that the final receipt be stricken from the record and the compensa- 
tion agreement be modified to provide for the loss, of the use of the 
arm, with credit for compensation which has been paid under the 
agreement 



Where there 


is noth 


ng in 


the record to 


indicate that there 


done claimant 


at the t 


me the 


final receipt 


was signed, the rece 



Stravinckas v. Scranton Coal Co. 

Final receipt- -When name trill not 6c net axvle. 

was any injustice 
pt will not be set 

Claimant not represented by counsel. 
Defendant represented by J. E. Burr, Scranton. 

ORDER BY THE BOAiRD— February 7, 1921. 

The petition for revicfw is dismissed. 

There is nothing in the record to indicate that there was any in- 
justice done the petitioner at the time the final receipt was signed, 
but to the contrary, the evidence- discloses the fact that he knew 
exactly what he was'doing, and there is no evidence to show that his 
rights were thereby jeopardizrd in any way. There is no evidence 
to indicate that he was not able to return to his work at the time- 
the final receipt was signed, nor that he has been unable to perform 
his usual labor since. 



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Caldibelli r. State Workmen's Insurance Fund. 

Course of employment — Injury tn employer's premises after working hours. 

WTiere an diiiiloje iciurns lo employer's pninisfit, either to draw liia pay or to 
receive in a cruet ions, and while uniting upon said premises Buffers physical injuries 
ut the hands of a superintendent or foreman, causing bis death. Held ; his de- 
pendent is entitled to compensation. 

Claimant represented by Charles J. Margiotti, Punxsutawney. 
IMendant represented by Samuel I. Spyker, Huntingdon. 

OPINION' BY 3IACKKY— (Chairman— February 7, 1921. 

The Referee based his award of compensation to the dependent 
father of a defeased son on the following facta which we will restate 
in the language of the said Referee: — 

"Vittorio Caldibelli was employed by the Armerford Coal Co. ; as 
a coal miner, at an average wage in excess of |20. About 1 P.M., 
on July 24, 1920, Vittorio Caldibelli and bis father, Luigi Caldibelli, 
started to leave defendant's mine, and while underground on their 
way out, met Harry Brown, defendant's mine foreman. The father 
was ahead of the boy, walking out, and kept on going, and then 
Brown asked ; 'Vittorio, are you going home?' Vittorio Caldibelli 
answered ; 'Yes'. Brown then asked if they had cleaned up their 
place and Vittorio Caldibelli answered that he was a little sick, and 
besides he and his father had loaded fourteen or fifteen ears of coal 
that day. Upon being asked how much coal had been shot down and 
was ready to load, Vittorio answered; 'Fourteen or fifteen tons.' 
Brown told him to go back and clean up the place, but Vittorio 
refused, saying he did not have to do it. The mine foreman became 
very abusive, called Vittorio Caldibelli a vile name, and went five 
or six yards toward him, and threatened him, because he would not 
go back and clean up his place — that is, load all the coal that was 
ready. 

Vittorio Caldibelli went home, washed} dressed in his street 
clothes; and about 3 o'clock told his father that he was going down 
to the mine, which was only two hundred yards from his home, to 
see the mine foreman about his work ; that is, if he could go back 
to work the next day, and if not. then he would ask the foreman 
about getting his time. After leaving his home, Vittorio Caldibelli 
■came within a couple hundred feet of the face of defendant's mine, 
where he found Dan DePuma, who was also a coal miner, sitting 
upon a pile of mine rails* — about two hundred in number, which 
belonged to defendant, and was on defendant's premises. DePuma 
asked Vittorio to sit with him, and asked if he had been working that 
day. Vittorio sat down with DePuma, and told him the same story 



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73 

as is containd in Pact No. 2, and which was sworn to by Jim Bragozi, 
who was present in the defendant's mine and heard what actually 
took place between Brown and Vittorio Caldibelli. About the time 
the mine foreman. Harry Brown, came out of the mine, and walked 
over to where Vittorio Caldibelli and Dan DePnma were Bitting, 
got hold of Caldibelli 'a ear, and asked what he meant by the way- 
he talked to him in the mine that afternoon. CaldibtQli told the 
mine foreman to leave him alone. Brown then lifted the boy up 
from his sitting position by both ears, the boy crying : 'leave me alone' 
several times, and then started to choke the boy with his two hands. 
LrcwB and Vittorio Caldibelli, iwho was now trying to save him 
self, fell to the ground, and Brown punched Caldibelli a number of 
times in the face. Vittorio Caldibelli was choked to death by 
Brown at this time. 

Dr. A. Tl. Stewart, coroner of Indiana county,, testify 1 
that Vittorio Caldibelli died as a result of being strangulated. 
Harry Brown, the mine foreman, pleaded guilty of voluntary man- 
slaughter hefore the Court of Indiana county, and is now serving a 
term in the workhouse. Brown was a mature man, holding a respon- 
sible position, while the deceased was but a boy, seventeen years 
old." 

We have reviewed the testimony with a great deal of care to dis- 
cover whether' or not the deceased returned to the mine for the 
purpose of complying with the order of the foreman to clean up 
his work, or to ascertain whether he conld return the following day 
for work, or to inquire whether or not he was discharged, (in which 
event he desired to secure a settlement for wages due him ) or whether 
on the other hand, he returned for the purpose of engaging in a fight 
or controversy with the foreman. Had this deceased workman, after 
having engaged in a verbal controversy with the foreman and having 
been told to quit the premises by him under such circumstances 
that there had been a great display of anger on the part of both, 
and had this deceased employer after having changed his clothes 
putting on such apparel that was evident that he did not intend 
to resume coal mining, returned to the mine, and by anything that 
he did or said, indicated that he came there for no good, but to seek 
a fight, we would hold that he had concluded his day's work and 
that his visit to the mine was a personal ope, entirely gratuitous 
on bis part, and that he was not in the coarse of his employment 
nor doing anything to fifrther the interests of the employer; but, 
to the contrary, from the evidence, the boy gave no indication of 
any hostility. The clothes he wore back to the mine are not con- 
clusive as to his intentions. We find that after returning to the 
employer's premises in quest of information which was necessary 
to gain in order that he might be able to promote the best interests 



. 



74 

of the employer, he quietly sat down with a fellow employe, stated 
the purpose of his, visit, which if true was perfectly proper, taking 
him back into the course of his employment. While thus peacefully 
in pursuit* of such information or instruction, he was suddenly and 
such injuries upon his person that he died in consequence thereof. 

We have, then, as far as this record is concerned, an employe upon 
the employer's premises having returned there either to draw his 
pay or to receive instructions, and while waiting upoo the said 
premises, he suffered physical injuries at the hands of a superintend' 
feloniously assaulted by the foreman who caused the infliction of 
ent or foreman. We further have in the case that these injuries were 
inflicted, not because of any personal grievance which the foreman 
had against the deceased, but because of a misunderstanding which 
had previously grown out of the employment. 

We hold therefore that this is a case of an employe on the premises, 
where he had a right to be, awaiting orders as to his employment. 
The situation is governed by Dzikowski v. Superior Steel Co., 259 
Pa. 578, while the employer's responsibility for compensation is 
controlled by the cases quoted by us in Maguire v. Lees & Sons Co., 
7 l>ept. Reports, page 12. 

The award of the Referee is accordingly affirmed and the appeal 



Morgan v. Baldwin Locomotive Works. 

Disability — At affecting skilled machinist. 

Where the injuries nre so serious and of such a delicate nature tlmt claimunt 
may never be able to return to that emptoymeut in wh*ch be is skilled, nor to earn 
very high wages, and compel him to compete in the open market with nnunaj men, 
he is entitled to full compensation. 

Claimant not represented by counsel. 

Defendant represented by Raymond G. Scott, Philadelphia. 

ORDER BY THE BOARD— Feb, 11, 1921. 

On March 26, 1918, the parties to this proceedings entered into 
a compensation agreement. Compensation was paid at the rate or 
$10 per week for 129 weeks, when the employe was given a position 
as messenger with the defendant and compensation was paid for 
partial disability in addition to the wages received at the rate of 
J3.18 per week. 

At the time the petitioner was injured in the defendant's employ, 
he was a skilled machinist making an average of f48 per week. After 



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76 

having sustained this injury, and while disability was mending, the 
defendant undoubtedly for very good motives, gave the petitioner 
a job as a messenger which fell short of his former wages and an 
attempt was made to supplement the same by fixing compensation 
for partial disability. The petitioner was continued in this position 
up until November 19, 1920, when he was laid off because of the 
general labor and industrial conditions. < 

The testimony indicates that the injuries to the petitioner are so 
serious and of such a delicate nature that he may never be able to 
return to that employment in which he is skilled, nor to earn very 
high wages. 

The question for us to consider is whether or not the defendant 
shall be compelled to pay full or partial compensation. We feel that 
it would be doing a great injustice to this workman and further 
would establish a very unwise and unjust precedent to hold that 
because this defendant graciously gave the petitioner an onnnrtunity 
to do something involving very little exertion, and requiring the 
demonstration of no mechanical skill, that thereby it haR established 
for him a fixed earning capacity, or that he is to be judged in the 
future by the bounty which the defendant thus extended to him. 
This man has been destroyed as a skilled mechanic He must now 
go out into the open market and compete with normal men. He is 
destined to failure. The world at large will offer him no position 
out of mere sympathy as did the defendant and we therefore believe 
that compensation should follow this view of the case. 

Tt is therefore ordered that full compensation of $ 10 per week be 
reinstated for the claimant from November 19, 1920. 



Varga v. Day & Zimmerman. 

Dependency — Loco parentis. 

Where decedent stood In loco parentis to a child, the child should have been in 
eluded in the original compensation agreement, and the Board will modify th> 
agreement accordingly. 

Claimant represented by William Bond Smith, Philadelphia. 
Defendant represented by Q. L. Burgy, Philadelphia. 

OPINION BY COMMISSIONER JARRETT -February 18, 1921. 

The matter before us is a review of Compensation Agreement No. 
488349. The claimant, in her petition for review, sets forth "that 
my compensation agreement should include a child who is a mem- 



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ber of the household and one whom my husband and I stood in loco 
parentis." The insurance carrier, intervening defendant, answered 
said petition, setting forth "that the child has a living father and 
was never legally adopted by the deceased or the claimant in this 
case and is not a dependent within the meaning of the Workmen's 
Compensation Act of this State." The matter came on for hearing 
before the Hoard at Philadelphia, January 18, 1920. 

It appears from the testimony that tbe child in question is Joseph 
Pialkovits, who was born March !), 1012; that the mother of this 
child, while on her death bed, told the claimant in the presence of the 
child's father, who is Frank L. Fialkovits, that she and her husband, 
Louis Varga, the deceased, were to have the child. In pursuance to 
this arrangement, the child was taken by the claimant and her de- 
ceased husband and made a member of their household; the child ;it 
the time being about sis months old. The child was maintained ami 
cared for by them as a member of their family and was, until the 
death of the said Louie Varga, and has since been maintained and 
supported by the claimant, Marie Varga. 

The father of the child contends that he offered to support the 
child, but they would take no money from him. This was denied by 
the claimant and we are inclined to believe her. About one year 
ago the father of the child brought habeas corpus proceedings against 
the claimant in the Courts of Philadelphia county to .obtain the 
custody of the child and the Court awarded it to the claimant. 

Section 300 of theWorkmen's Compensation Act of 1!!15 is in part 
as follows: 

" " * " The terms child and children shall include 
step-children and adopted children, and children to 
whom he stood in loco parentis, if members of deced- 
ent's household at the time of his death • * • " 

We are satisfied that the testimony establishes the fact that said 
Louis Varga, deceased, stood in loco parentis to the said child aw 
the testimony shows that the child was in his custody, maintained, 
provided for in all its needs by him. and the visits of the father to 
see the child being far apart, it is fair to presume that tbe deceased 
did exercise parental control in the way of correction and its educt- 
tion, both religious and otherwise. The testimony is clear that at 
the time of his death the child was a member of his household. We 
are of the opinion therefore that the child should have been included 
in the original compensation agreement. 

We will therefore modify the compensation agreement to read as 
follows: That the defendant, by its insurance carrier, the U. 8. 
Casualty Co., pay to the claimant 4fi% of $17.87 per week or $8.04 
per week for a period of 300 weeks dating from November 8, 1017, 



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77 

14 day* after the death of the decedent. Then to the guardian of 
•Joseph Fiiilkovits, 15'/' of .$ 17.87 per week or $2.08 per week until 
March !>, 192S, at which time he will have arrived at the age of 16 
years; the amount due in accordance herewith, to be paid at once. 



JBatson v. Young Men's Christian Association. 

Courte of employment — Killed ichile picking eherrici. 

Where the claimant is employed as n core-taker, receiving wages end such fruit 
as he may require, and is injured while picking cherries, which was permissible, 
under the contract of hiring. Held ; he ia entitled to compensation. 

Claimant not represented by counsel. 

Defendant represented by Howard A. Davis, Philadelphia. 

OPINION BY COMMISSIONER JARRETT— February 18, 1821. 

SUBMITTED UNDER AGREED FACTS. 

FINDINGS OF PACT. 

1. Robert C. Balson, the claimant, was, on July 4, 1920, employed 
by the defendant us caic-tuker of Y. M. C. A. farm known as Out- 
ing Camp, Downiugtown. 

2. He was receiving as wages $100 per month, rent free, etc., 
etc., and such fruit as he may require from the premises for the needs 
of himself and family. 

3. On said date, about 4 o'clock P. M., while on the premises of 
the defendant, he was picking cherries for his Sunday dinner, which 
was permissible under the contract of hiring, and while picking 
the cherries, he fell from the tree and received an injury, the nature 
of which is given as "contusion to back." 

4. Tbe claimant returned to work on. July 24, 1920. 

5. The claimant paid for "medical, surgical or hospital services 
and supplies, $63.00." 

6. The parties were at the time of the accident bound by the pro- 
visions of the Workmen's Compensation Act of 1915 and its amend- 
ments. 

CONCLUSIONS OF LAW. 

1. The parties were bound by the provisions of the Workmen's 
Compensation Act of 1915 and its amendments. 

2. The claimant's injury was violence to the physical stmcture of 
his body, received by accident while in the course of his employment 
on the premises of the defendant, as contemplated by the Workmen's 
Compensation Act of 1915 and its amendments. 



78 

AWARD. 

There is accordingly awarded against the defendant, to be paid 
by its insurance carrier, The Employers Liability Assurance Corp., 
as provided by the Workmen's Compensation Act of 1915 and its 
amendments, 60% of $20 per week or $12 per week from July 14, 
1920. to July 24, 1920, both dates inclusive. There is also awarded 
the sum of $63 expended by the claimant for "medical, surgical or 
hospital services and supplies." 



Cabaret v. Poland Coal Co. 

Employer to furnish employment — Board is icithoat authority to compel. 
The Board is without authority to compel the employer to furnish' employment to 
the employe, and an order of judgment bused thereon cannot be sustained. 

Claimant represented by Elias Goodstein, Uniontown. 
Defendant represented by L. F. Masterson, Pittsburgh, 

OPINION KY COMMISSIOXElt JABRETT, February 18, 1921. 

In our opinion filed on June 25, 1920. we found "that the claimant 
at the time he signed the iinal receipt was partially disabled as re- 
lated to tbe work he was doing at the time of the accident, aud that 
he has been and is, as related to that work or other work which re- 
quires much physical exertion, so disabled," and we held that "it 
was and is the duty of the company, to relieve itself from payment 
of compensation, to provide the claimant with suitable employment." 

We relied upon Olerka v. Lehigh & WilkeB-Barre Coal Co., 3 Dept. 
Reports 2944 for our authority to compel the defendant to furnish 
the claimant with employment. It has since been held, in Fornatti 
v. Tower Hill Counnellsville Coke Co., 6 Dept. Reports 2454, and 
Lewis Josephite v. Pittsburgh Coal Co., Common Pleas, Allegheny 
County, not yet reported, that the Board is without authority to so 
compel the employer to furnish employment and that an order of 
judgment based thereon cannot be sustained. 

We are still of the opinion that the claimant is partially disabled 
but in view of the decision cited and there being no evidence from 
which we can find the loss of earning power of the claimant, we will 
have to dismiss the petition. We will adopt our opinion of June 25, 
1920 as to the history of the case and the facts, not inconsistent 
therewith. 

The petition is dismissed without prejudice. 



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Tinkleman v. Hoopes & Townsend. 

Loss of earning poirer — Itoir. xtiinc to he determined. 

Where clnimnnt is not totally illMiblcd ai:<l there is no evidence to show loss of 
rani'tig power, the Bo:inl not lumnir authority to compel the employer to furnish 
employe with employment, it will be necvssiiry for claimant to obtain employment 
fiHi'wln*rc> to cuable the Board !o ilrtertnliU' the extent of hid disability, if any. 

Claimant represented by Istrac II. Price, Plriladelphia. 
Defendant represented by John J. Ziegler, Jr., Philadelphia. 

OPINION BYCOMMMISHIOXERJARRETT— February 18, 1921. 

The record clearly in di rates that the claimant is not totally dis- 
abled and there is no evidence to show loss of earning power so as to 
fix partial disability, 

The Board does not have the authority to compel the defendant to 
furnmh the claimant with employment. It will therefore be neces- 
sary for him to obtain employment elsewhere and we will then be 
in position to determine the extent of his disability, if any. 

Wo as to get a complete record, we will refer the case back to 
Referee Rosier for a rehearing, who will make findings of fact, etc., 
as warranted by the evidence. 



Rotolo v. Punxsutawney Furnace Co. 

Course of employment — Accident off premise* of employer. 

Where an employe ejnit work about one-half hour before his regular timc^whicli 
was permissible, and was killed by n locomotive engiuted in Hie interest of the em- 
ployer, his death is compensable inasmuch ns his presence on the trucks wns re- 
quired by the nature of his employment. 

Claimant represented by Charles J. Margiotti, Punxsutawney. 
Defendant represented by Henry I. Wilson, Punxsutawney. 

OPINION BY COMMISSIONER JABBETT— February 24. 1081. 

Joseph Rotolo, deceased, was in the employ of the defendant on 
March 8, 1920. He quit work about one-half hour before his regular 
quitting time, which was permissible; started for his home afoot by 
a route which he ofttimes used, to-wit. through the yard of the 
defendant to a railroad of The Buffalo, Rochester and Pittsburgh 
Railway Co.. He was killed on the latter railroad by a locomotive 
of the defendant The place where he met his death was about one 
hundred feet from the property line of the defendant and about 
1332 feet from his place of employment. The locomotive which 



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killed the deceased was engaged in the interest of the defendant. The 
defendant had been and was using the track upon which the decedent 
was killed, in the furtherance of its business and this use was known 
to the railway company. 

The claimant, the widow of the deceased, filed a claim petition. The 
hearing on the petition was held before Referee Gleason who awarded 
compensation. The defendant has appealed and contends that the 
7th, 10th, 11th and 12th findings of fact are in part not supported by 
the evidence; that the 13th finding of fact was error in entirety and 
gave ita reasons, which are too lengthy to set out here, and also con- 
tends: 

"That the Referee erred when he failed to find as a 
fact that the accident occurred upon the property and 
premises of the Buffalo, Rochester & Pittsburgh Rwy. 
Co., upon which property and premises the defendant 
company was at the time carrying on its business and 
affairs without occupying same or controlling it. The 
presence of the employe not being required by the na- 
ture of his employment." 
and alleging error of law as follows: 

"Error of law as to 'Second Conclusion of Law' and 
as to 'Award' both in entirety. No legal evidence or 
any evidence or testimony taken at hearings upon which 
to find facts making it a compensation case. No legal 
evidence or even testimony to justify second conclusion 
of law and therefore it was error in law to make any 
award whatever. It was emir in law not to follow the 
legal evidence in the case, which clearly showed that the 
employe met his death on his way going home from 
work, not on the premises or property of the employer 
and not on premises occupied by or under control of 
the employer but upon premises upon which the employ- 
er's business or affairs were being carried on ; the em- 
ploye's presence thereon not being required by the na- 
ture of his employment." 

The case is governed by Section 301 of the Workmen's CompenBa- 
liouAct of 1?15 and, as concerns this case, is as follows: 

t ^" * * The term 'injury by an accident in the course 
of hig employment,' as used in this article • • • shall 
include all other injuries sustained while the employe 
is actually engaged in the furtherance of the business 
or affairs of the employer, whether upon the employer's 
premises or elsewhere, and shall include all injuries 
caused by the condition of the premises or by the opera- 
tion of the employer's business or affairs thereon, sus- 
tained by the employe, who, though not so engaged, is 
injured upon the premises occupied by or under the con- 
trol of the employer, or upon which the employer's busi- 



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ness or affairs are being carried on. the employe's pres 
ence thereon being required by the nature of his employ- 
ment." 

The decedent was not, at the time of the accident, actually en 
gaged in the fu.therance of the business or affairs of the defendant, 
so it will be necessary to sustain the Referee to find, first, that the 
testimony shows any one of the following requirements: 

1. That the decendent was injured upon the premises occupied 
by the defendant. 

2. That he was injured upon premises under the control of the 
defendant. 

3. That he was injured on premises upon which the defendant's 
business or affairs were being carried on. 

The Referee, in his 13th finding of fact, found that "at the time 
of the accident Joseph Rotolo was on premises under the control of 
the defendant, upon which the defendant's business was regularly 
carried on." 

We are convinced that the testimony is not sufficient to support 
the finding; that the premises were under the control of the defend- 
ant but is sufficient to support the latter finding. We need not set 
out the supporting testimony as this fact is admitted by the defend- 
ant in its pleadings. 

We must further find that the testimony shows one of the follow- 
ing requirements: 

1. That the injuries were caused by the condition of the premises. 

2. That the injuries were caused by the operation of the defend- 
ant's Imsiness or affairs theieon. 

The Referee has found, in his 13th finding of fact: "And he met 
his death by the operation of the defendant's business, by being 
struck by their engine.'' 

We are convinced that this finding is supported by the testiinonv 
and it is needless to set out the supporting testimony as it is so 
dear on this point. 

We must further find that the testimony shows that the decedent's 
presence was required at the place of accident by the nature of his 
employment. The Referee in his 13th finding of fact found: "His 
presence thereon was required by the nature of his employment." 

We are convinced that this finding is correct. The decedent was 
on his way home from work by a route used by him for some time 
to go to and from work, which route had also been used for the same 
purpose, for about thirteen years by the employes of the defendant, 
whose homes were in the same direction as that in which the deced- 
ent lived. 



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"This custom of the employes continued for a series of 
years, must have been known, or should have been known 
by the representatives of the (Defendant)." Parfay v. 
Jones & Laughlin Steel Co., 1 Board Decisions 108 (2 
Dept. Reports 1293) ; Rhoads v. Phila. & Reading Rwy. 
Co., 1 Mackey 187 (3 Dept. Reports 1518). 

"It has been said that an employe must not choose 
a needlessly dangerous path to and from his work, but 
that it is not necessary for him to use the path or place 
provided by his master; that is, it is enough that it is 
customarily used for these purposes by the workmen and 
that its use is not specifically forbidden. Gane v. 
Norton Hill Colliery Co., 2 B. W. C. C. 42., McKee v. 
Great Northern Rwy. Co., 1 B. W. C. C. 165 ; Barnes v. 
Nunnery Coal Co., 4 B. W. C. C. 43 ; 25 Harvard Law 
Review, 411 and cases cited." Wabash Rwy. Co., v. 
Industrial Comm. Supreme Court HI. W. C. L. J. vol. 
6—649. 



Tigue v. Forty Fort Coal Co., 1 Mackey, 458 (3 Dept. 
Reports 1455), affirmed by the Supreme Court, 264 Pa. 
5490, (5 Dept. Reports 985) ; Nowicki v. West End Coal 
Co., 1 Mackey 450 (4 Dept. Reports 2276) ; Tolan v. 
Phila. & Reading Coal & Iron Co., 5 Dept. Reports 2433, 
C. P. Schuylkill County. 6 Dept. Reports 450 ; Fulton v. 
Buffalo, Rochester & Pittsburgh R. R. Co., 6 Dept. Re- 
ports 1072; Landy v. American International Shipbuild- 
ing Corp., 6 Dept. Reports 1075. 

It is true that there were two other routes provided by the defend- 
ant, which the claimant could have taken, which were both safer than 
the route in question, but this alone does not control the question. 
What controls is that which we have set out above. 

In all of the cases cited the accidents happened on the premises 
proper of the defendcnts. It follows., relying on these authorities, 
if the decedent here had met his death on the premises proper of 
the defendant, at its property line on this route, the claim certainly 
would he compensable. It follows, in our judgment, all of the re- 
quirements of the Act having been met, the same principles apply 
here. 

We cannot find sufficient merit in the exceptions taken to the 
findings of fact to set them aside. It is tme the findings could be 
more concise but when it ig taken into consideration that they were 
found from two hundred and twenty pages of testimony, we feel that 
the Referee should not be adversely criticized. We think, taking 
everything into consideration, that they have been ably and pains- 
takingly drawn. We are also of the opinion that the law has been 
properly applied. 



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The findings of fact, conclusions of law and award of the Referee 
are accordingly sustained and the appeal dismissed. 



Rotolo v. Punxsutawney Furnace Co. 

Practice ami procedure — Rehearing — When refuted. 

A petition for a rehearing, under Section 426 of tue Workmen's Compensation Act 
as amended, will he rcfunri) wlirll llie Hoard is of Uiu ot>itiiou that no error lias 
been committed or any injustice done to the petitioner. 

Claimant represented by Charles J. Margiotti, Punxsutawney. 
Defendant represented by Henry I. Wilson, Punxsutawney. 

OPINION BY COMMISSIONER JARRETT—April 15, 1921. 

The Referee awarded compensation. The defendant appealed and 
the Board sustained the findings of fact, conclusions of law and 
award of the Referee with the exception that it did not sustain the 
finding of fact* that the premises were tinder the control of the 
defendant. The defendant has appealed from the decision of the Board 
to the Court of Common Pleas of Jefferson County. It has now 
filed the petition before us, asking that a rehearing be granted under 
Section 426 of the Workmen's Compensation Act as amended. 

The defendant contends in its petition that the Board found ad- 
ditional facts and set aside facts without granting a hearing di- 
novo, which was error, and that the Board having found that the 
decedent was not actually engaged in the furtherance of the busi- 
ness or affairs of the defendant, the opinion is in direct conflict with 
the decision of the Referee, wherein the Referee found that the 
decedent met death while in the course of his employment. The 
defendant also contends that injustice may be done it if a rehearing 
is not granted as prayed for, owing to the Board's order sustaining 
the Referee, which is as follows: "The findings of fact, conclusions 
of law and award of the Referee are accordingly sustained and the 
appeal dismissed," the defendant being in fear that the Court may 
take this to mean that the Board sustained all of the findings of fact 
of the Referee. 

We will have to pass upon the matter from our recollection as the 
record is not before us. 

As to finding additional facts without granting a hearing de novo, 
it is our recollection that in our history of the case we found a few 
minor facts which only enlarged upon the facts found by the Referee 
but they are not absolutely material to the issue; a review of the 
record will show that the Referee's findings alone are sufficient to 
support the award and upon his findings alone, except the finding 



as to the control of the premises (which, in answer to the defendant, 
we say was superfluous), the Board sustained. 

As to the Board stating that the decedent was not actually en- 
gaged in the furtherance of the business or affairs of the defendant, 
we think this was not error as it is our recollection that the findings 
of the Referee are in substance that he was not actually engaged. 
As to it being in direct conflict with the findings of the Referee that 
the claimant was in the course of his employment, we think it is not 
in conflict as it is our opinion that the decedent was in the course 
of his employment, although not actually engaged in the further- 
ance of the business or affairs of the employer. See Hemmig v. 
Fisher Hosiery Co., 1 Mackey 176. 

As to a wrong being done the defendant by us closing the opinion 
with the order "The findings of fact, conclusions of law and award 
of the Referee are accordingly sustained and the appeal dismissed," 
we cannot see where this will work injustice or wrong to the defend- 
ant. It is plain from the body of the opinion and the word "accord- 
ingly" as used in the order, that we sustained the Referee on his 
finding alone, except the finding that the premises were under the 
control of the defendant; at least that is what we intended. 

We do not fear that any injustice or wrong will be done the defend- 
ant because if we have erred, the Court will remand the record. 
Feeling that we are right, and desiring a judicial opinion on the 
questions involved, we will dismiss the petition. The petition is 
accordingly dismissed. 



Owens v. Curtis Publishing Co. 

Final receipt — When act aside. 

A filial receipt will be set nside where the clai 
end not able to do the work he was doing at the ti 

Claimant represented by Edwin O. Lewis, Philadelphia. 
Defendant represented by Ray L. Nichols, Philadelphia. 

OPINION BY JARRETT— Commissioner— February 24, 1921. 

Bernard Owens, the claimant, while in the employ of the defendant 
company on April 5, 1920, at its plant in the city of Philadelphia; 
met with an accident. He was at the time employed as an assistant 
pressman ; part of his duties being to place the rolls on a press. On 
said date, while "placing a roll on the press, the handle slipped and 
hit him on the head and arms." As a result he suffered a fracture of 
both bones of the left forearm. 



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A compensation agreement was entered into between the parties, 
which shows that the claimant's weekly wage at the time of the 
accident was ?40 .75 per week. Compensation was paid to August 
31, 1920, a total of $190, at which time the claimant signed a final 
receipt 

On October 25, 1920, the claimant filed a petition for review of the 
compensation agreement, alleging: 'The compensation agreement 
should have alleged the loss of the use of the left arm. I have not 
got the nse of my left arm at the present time." The insurance 
carrier, intervening defendant, answered denying the allegations set 
out by the claimant. At the hearing the claimant moved to amend 
his petition that if the Board found it was not the loss of the use 
of the left arm, that such compensation be awarded "as the Board 
saw fit to recommend until he recovered sufficiently that he is able 
to line both arms or engage in such other work that will make for 
himself a livelihood." Counsel for the insurance carrier agreed to 
this amendment. 

The record is not complete as to the making of the motion, the 
contents thereof and full proceedings on the same, but we are sure 
that what we have stated here is a correct statement of the proceed- 
ings. 

It appears from the testmony that the claimant returned to work 
some time defore the date of the signing of the final receipt and was 
given light work. lAIter signing the final receipt, he went to work 
such as he thought he could do with one arm. He managed to do the 
work, with help. His foreman has testified that it was a job that, 
in his judgment, would require two arms. He worked until October 
30, when be was laid off, owing to a reduction of force. After being 
laid off, he looked about several places for work and could not obtain 
it. owing to his condition, but was successful in getting a position 
as a watchman for about eleven days, for which he was paid |3 per 
day. 

Dr. John R. Adams for the defendant and Dr. Walter IT. Blakeslec 
called as an impartial witness, both testified that the claimant has 
not permanently lost the use of his left arm; that it will improve 
with proper care and treatment hut at this time he is not able to 
perform heavy work. 

We are satisfied from the testimony that the claimant is partially 
disabled ; that he is not able to do the work he was doing at the time 
of the accident, and is not able to do the work he was doing at the 
time he was laid off. without assistance. Tt follows then, in our 
judgment that, inasmuch as he has been laid off through no fault 
of his own and he is unable to perform such work as he was doing 

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at the time he was laid off, without assistance, he is entitled to 
compensation for partial disability. 

His disability is a liability of the defendant's and if the defendant 
can no lunger provide employment for him, either such as he can 
do without assistance or such as ho can do with assistance, the com- 
pensation for bis partal disability is to be the difference in wages he 
was receiving at the time of his injury and the wages he is able to 
earn in such industry that can provide employment for him. 

We are convinced that the final receipt was signed by mistake; the 
claimant being unaware of the fact that h<' would be laid off from bis 
position before he had fully recovered from his injuries. 

The testimony shows that at the time of the accident he was earn- 
ing as wages $40.75 per week and that since he was laid off he worked 
for about eleven days as a watchman for $3. per day. The position 
as watchman is one that. ' we are sure, he is able to perform. A 
watchman, as a general rule, works six days a week, his wages there- 
fore would be $18. per week. His loss in earning power would then 
be the difference between $18. per week and $40.75 per week or $22.75. 

CONCLUSION OF LAW. 

1. The parties were, at the time of the accident, bound by the pro- 
visions of the Workmen's Compensation Act of 1915 and its amend- 
ments. 

2. The injuries suffered by the claimant was violence to the phy- 
sical structure of his body, received by accident while in the course 
of his employment on the premises of the defendant as contemplated 
by the Act 

AWAED. 

There is accordingly awarded against the defendant, The Curtis 
Publishing Co., to be paid by its insurance carrier, The Liberty Mu- 
tual Insurance Co., as provided by the Act, 60% of $20. per week or 
$12. per week from October 27, 1920 and to continue so long as his 
disability exists, as provided by Section 306 of the Act. 



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87 
Piazza v, Pittsburgh Coal Co. 

Sunpend payment of compensation — Act authorizing Referee to 

The Workmen's Compensation Act authorizes n Referee to suspend the payment 
of compensation. 

Claimant represented by Acheson & Crumrine, Washington, Pa. & 

David Hickey, Pittsburgh. 
Defendant represented by George T. Emery, Jr. Pittsburgh. 

OPINION BY COMMISSIONER. JARRETT — February 24, 1921. 

After a careful review of the record, we are satisfied that the 
findings of fact are well supported by the testimony, 

The claimant contends that the Referee erred in suspending pay- 
ments of compensation as the Act does not give such, authority. We 
think the claimant is wholly wrong in this respect. See Section 
413 of the Act of 1919, P. L* 642. 

The findings of fact, conclusions of law and order of the Referee 
are sustained and the appeal dismissed. 



Kealey v. U. S. Aluminum Co. 

Hand— -Lots of ute of 

An employe who suffers an injury to his hand whereby he loses his first finger 
at the second joint, his second finger lit t lie third joint, and the third finger at th" 
second joint, has lost the permanent use of that member. 

Claimant not represented by counsel. 
Defendant not represented by counsel. 

OPINION BY COMMISSIONER HOUCK— February 28, 1921. 

This is a petition for determination of compensation under agreed 
facts. The facts as agreed upon show that the claimant was injured 
while in the course of his employment on August 18, 1920. Three 
fingers of his right hand were caught between the punch and the die 
of a draw press. As a result of the injury the claimant's first finger 
of his right hand is off at the second joint, the second linger is off 
at the third joint and the third finger is off at the second joint. The 
point in dispute between the claimant and defendant is whether the 
claimant has lost the use of his right hand. The case was referred to 
Dr. E. R. Walters, one of the Board's medical examiners, to make an 
examination of the claimant's hand and to report his findings to the 



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Board. On January 19, 1921, Dr. Walters reported that he examined 
(he claimant's hand on that day and that in his opinion the condition 
of his hand constitutes the permanent loss of the use of that member. 
The Board therefore finds that the claimant has lost the nse of bis 
hand as a result of the injury of August 18, 1920. 

Accordingly, the parties are directed to enter into a compensation 
agreement providing for the loss of the use of the claimant's right 
hand. 



Kelly v. Watson Coal Co. 

Tubercular peritonitis — Remit of violence to physical slruetvre of body. 

When b blow from a crank inflicts such injuries to the body as to lower the vi- 
tality and lessen the resistance to a tubercular condition which develops soon after 
the accident and finally results in death, such injuries constitute violence to the 
physical structure of the body for which compensation will be awarded. 

Appellant represented by John M. Reed, Pittsburgh. 
Appellee represented by 8. J. Telford, Indiana, Pa. 

OPINION BY COMMISSIONER JARRETT— February 28, 1921. 
HEARING DU NOVO. 

The Board granted a hearing de, novo on this case and the testi- 
mony taken before Referee Snyder was accepted by the parties to be 
considered as if taken at the hearing de novo. The testimony on the 
hearing de novo was taken before Referee Gus M. Gleason on June 
2lt, 1920 and December 21, 1920. 

FINDINGS OF FACT. 

1. The claimant is Carrie S. Kelly, of Saltsburg. widow of H. E. 
Kelly, deceased, for herself and George Kelly, minor child of said H. 
E. Kelly, born April 12, 1904, both of whom were dependent upon the 
deceased at thetime of his death, as contemplated by the Workmen's 
Compensation Act of 1915. 

2. The defendant is the Watson Coal Co., of Saltslmrg, who is 
engaged in the mining of coal. Its insurance carrier, intervening 
defendant, is the Aetna Life Insurance Co., with offices in the Cham- 
ber of Commerce Building, Pittsburgh. 

3. The said H. E. Kelly wan in the employ of the defendant at 
its No. 1 Mine, Saltslmrg, on March 19, 1918. JIc was employed as 
a carpenter. On said date, while on the premises of the defendant 



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89 

in tlie course of his employment, he was winding u crab, turning over 
a car. so as 1o repair the bottom. The crank flew out of bis hands 
and hit him on the head and on the abdomer near the waist line 
on the left side, knocking him down. He was taken to the first aid 
station where his wounds were dressed. There vtut n wound inflicted * 
en his forehead just above the eye about two and one-half inches long. 
into the hone. He was taken home immediately ami Dr. Ralph 
M. Lytic was called at once. The doctor found the cut as stated. 
The decedent complained to the doctor of an uneasy feeling; in the 
region of his abdomen. 011 his left side but there being "nothing defi- 
nite", the doctor did not consider it of as much importance as the 
head injury and therefore made no investigation. About five days 
after the injury the decedent complained again to the doctor 
about soreness in the region of the left testicle and upon examination 
the doctor found the left testicle swollen and the cords leading from 
it toward the abdomen were inflamed and tender. The doctor treated 
him until April 14, when he sent him to the Indiana Hospital. At 
the hospital his his left testicle was removed and found to be tubercu- 
lar. On May 4th he was discharged from the hospital and taken to 
his home. Dr. Lytle again treated him. A hip condition developed 
and the doctor sent him to the hospital on May 25. Ad X-ray was 
taken of the hip which did not show a tubercular condition "ex- 
actly", only a roughening but it was very painful. The decedent was 
kept in. the hospital, being treated for the hip condition, when there 
developed a general tubercular condition, principally of the lungs 
and the peritoneum, and (in November 6, 1918 he died of tubercular 
peritonitis. At the time of his death he was forty-six years of age. 
4. The decedent worked for t!ie defendant for about three years 
and was a steady worker; did not lose any time on account of sick- 

5. The injuries sustained by the decedent were "violence to the 
physical structure" of bis body and so lowered his vital resistance 
that a tubercular condition, which first became evident soon after the 
accident, quickly developed, hastening aud causing his death on No- 
vember 6, 1918 of tubercular peritonitis. 

6. The tubercular peritonitis was a resultant effect of the vio- 
lence to the physical structure of his body, due to the lowered resis- 
tance, as stated. 

7. Tito average weekly wage of the decedent at the time of death 
v.ms in excess of $20. 

s. The expenses of the last sickness and burial amounted to $476, 
m part of which has been paid by the defendant. 

0. The decedent and the defendant were, at the time of the acci- 
dent, hoth bound by the jtovHous of the Workmen's Compensation 
Act of 1015. 



CONCLUSIONS OF LAW. 

1. The decedent and the defendant were, at tho time of the acci- 
dent, both bound by the provisions of the Workmen's Compensation 
Act of 1915. 

2. H. E. Kelly, the deseased employe, died as a result ofi injuries 
which were "violence to the physical structure" of his body, sus- 
tained by accident while in the course of his employment with tbe 
defendant on its premises, as contemplated by the Act. 

3. The claimant and the child mentioned, being dependent upon 
the decedent for support at the time of his death, are entitled to 
compensation in accordance with Section 307 of the Workmen's Com- 
pensation Act of 1015. 

AWARD. 

The Board accordingly awards to Carrie Kelly, claimant and 
against the Watson Ooal Co., defendant, and its insurance carrier, 
the) Aetna Life Insurance Co., as provided by the Act, compensation 
at the rate of 45% of $20 or $9 per week for a period beginning 
November 21, 1918 and ending on April 12, 1920, when George Kelly 
arrived at the age of sixteen years; and from April 12, 1920 at the 
rate of 40% of $20 or $8 per week until the expiration of 300 weeks, 
dating from November 21, 1918. There is also awarded an addi- 
tional sum of $100, to be paid to the claimant for burial expenses of 
her deceased husband. The compensation to be paid as tbe wages of 
the decedent were paid. 



McFaul v. American International Shipbuilding Corp. 

Eye — Loss of use of— Other eye uselens at time of accident. 

Where claimant lost the use of one eye by an accident in the course of bia em- 
nloyment, he will not receive compensation for tbe lows of both eyes when the 
evidence shows that tbe other eye was not a workable eye at tbe time of the 
accident. 

Claimant not represented by counsel. 

Defendant represented by G. J. Barrett, Philadelphia. 

OPINION BY COMMISSIONER HOUCK,— February 28, 1921. 

This is a petition by the claimant for review of a compensation 
agreement. The claimant was injuried on June 9, 1919. A chip of 
steel flew into his right eye. A compensation agreement was en- 
tered into providing for the payment of compensation at the rate of 
$10 per week for 125 weeks for the loss of the use of the claimant's 
right eye. On September i, 1920, the claimant filed a petition to 



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91 

review alleging that the agreement should provide for the loss of the 
use of both eyes. The petition was heard by the Board and it de- 
veloped at the hearing that, at the time the claimant met with the in- 
jury to his right eye, he was suffering from a cataract on the left eye. 
And on June 18, 1920, Dr. Samuel G. Goldberg opened the claimant's 
left eye and removed its contents, so that the claimant is not totally 
blind in the left eye. He had also lost the use of his right eye as a 
result of the accident. The claimant sought to establish that the loss 
of his left eye is also due to the accident through sympathetic irri- 
tation. 

The claimant testified that he first had trouble with his eye in 1913 
, or 1914, and that in the condition it was at the time of the accident, 
it was not a working eye. In other words, if he had lost the use of 
his right eye, he would not have been aide to work with his left eye 
in the condition it was at that time. He thought, however, that if 
the cataract was removed his left eye would be all right. In this, 
however, Dr.Goldberg differed, and he testified that there was not the 
slightest possibility of restoring the sight of the left eye by the re- 
moval of the cataract. He said that it was a blind eye and had, in 
all probability, been blind for several years. 

The medical testimony, in conjunction with the admissions of the 
claimant himself, leaves no doubt that the claimant's left eye was use- 
less at the time he met with the injury to his right eye. The injury, 
therefore, had nothing to do with the loss of the use of the claimant's 
left eye. Therefore, since the claimant lost the use of only one eye 
as a result of the accident, he is entitled to compensation for 125 
weeks only. The Workmen's Compensation Act provides specifically 
for compensation for the loss of one eye, and the claimant is not en- 
titled to compensation for total disability merely because he was 
blind in one eye and the loss of the good eye by injury has rendered 
him totally disabled. In order for an employe to receive compensa- 
tion for total disability for the loss of both eyes, he must show that 
such loss was due to an injury while in the course of his employment. 
If he has already lost the use of one eye when he suffers the injury, 
he, of course, is unable to show that the injury caused the loss of the 
use of both eyes. And this is the position in which the claimant in 
this case is. 
The claimant's petition, therefore is dismissed. 



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Young v. S. S. "White Dental Co. 

Course if employment — Injury at noun hour while playing football. 

Where an employe hnd his ami broken while plnying foorball on tlie premises of 
his pini>1o.ver ut t>oon hour, the Accident is comppnsnble' when the facts indicate thai 
the clidmunt wns entitled to bo on the premises nt the time, nnd there ia nothing 
to show thtit Ihr defendant's eiiiplnves weir prohibited from plnying thole. 

Claimant not represented by counsel. 

Defendant represented by lABlbert Chance, Philadelphia. 

OPINION BY COMMISSIONER HO UCK,— February 28, 1921. 

This is a petition for determination of compensation under agreed 
facta. The facts as agreed upon are that the claimant was injured 
on October 29, 1920, during the lunch hour. The accident happened 
in the freight loading yard of the defendant company. The claimant, 
at the time of the accident, was playing with a football. The ball 
struck him on the left arm, breaking his arm two inches above the 
wrist. The claimant returned to work at the same wages on Novem- 
ber 29, 1920. His wages were $1 .84 per day, and he worked five and 
one-half days per week. The point in dispute between the parties is 
whether the claimant is entitled to compensation. 

The facts indicate that the claimant was entitled to be on the pre- 
mises of the defendant during the lunch hour, and there is nothing 
to show that the defendant's employes were prohibited from playing 
there. Accordingly, it is well settled that in such a case the claim- 
ant is in the course of his employment and is entitled to compensation. 
Siegfried v. Philadelphia & Beading Coal & Iron Co., 4 Pa. Work- 
men's Compensation Board, 219; Wolford v. Reading Dye Co., 4 Pa. 
Workmen's Compensation Board, 306. 

The claimant's wages were $1 .84* per day for five and one-half days 
per week, so that his weekly wage was $10.12. He is not entitled to 
compensation for the first ten days after disability. Compensation 
starts, therefore, on November 8, 1920, and continues until November 
29, 1920, a period of three weeks. The claimant is entitled to 00% of 
£10.12, or tffi.07 per week for three weeks, amounting to $18.21. For 
the first thirty days after disability the defendant is liable for sur- 
gical and medical services, medicines and supplies, not to exceed $100, 
and for hospital treatment and services, if they were necessary. 

The parties are, accordingly, directed to enter into a compensation 
agreement in accordance with this opinion. 



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93 
Kopchak v. Lincoln Gas Coal Co. 

Burial expenteg — Section 307-(7), Workmen's Compensation Act construed. 

Where the defendant paid $138.B0 for medical expenses of the deceased, it must 
also pay the additional sum of $100 for burial expenses lis specifically provided bv 
Section 307-(7> of the Workmen's Compensation Art. 

Claimant represented by Louis V. Rarach, Pittsburgh. 
Defendant represented by W. O. Brown, Pittsburgh. 

OPINION BY COMMISSIONER HOFCK— February 28, 1921. 

The claimant's deceased husband was injured while in the conrre 
of his employment on June 3, 1020, and as a result of his injuries he 
died on June 7, 1920. Medical expenses between June 3 and June 7 
amounted to |1 38.50, and thin amount was paid by the defendant. 
The Referee awarded compensation to the dependents and an addi- 
tional sum of f 100 for burial expenses. The defendant has appealed 
from the award of flOO for burial expenses on the ground that the 
iimount paid for the expenses nf the last sickness exceeds the "amount 
provided by Section 307, paragraph 7, of the Workmen's Compen- 
sation Act for the last sickness and burial. Section 307, paragraph 
7. provides as follows: 

"Whether or not there be dependents as aforesaid, the 
reasonable expenses of the last sickness and burial, not 
exceeding one hnndred dollars (without deduction of 
any amounts theretofore paid for compensation or for 
medical expenses), payable to the dependents, or, if there 
be no dependents, then to the personal representatives 
of the deceased.'' 

It is our opinion that the Act provides for the situation which has 
arisen in this case, and that $100 for burial expenses is to he paid 
irrespective of any amount which may have been paid as expenses of 
the last sickness. The Act specifically provides "Without deductions 
of any amounts theretofore paid for compensation or for medical 
expenses."' Yonkoshi v. West End Coal Co., 3Pa. W. C. B. 235. The 
The award of the Referee is, therefore, without error. 

The findings of fact and conclusions of law of the Referee are 
affirmed and the appeal is dismissed. 



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Ford, et al. v. Connellsvjlle Central Coke Co. 

Dependency — Death of minor ton — Extent of compontation period. 

Where an employe sixteen years of age was killed, his parents, who were depen- 
dent upon him for support, are entitled to compensation for the fall period of three 
hundred weeks regardless of the fact that that period extends past the twenty-first 
birthday of the deceased. 

Claimant represented by Elian Goodstein, Uniontown. 
Defendant represented by Umbel, Robinson, McKean & Williams, 
Uniontown. 

OPINION BY COMMISSIONER IIOUOK- February 28, 1921. 

The claimant's son met with an injury while in the course of his 
employment on 'April 27, 1920. which resulted in hie death. The 
deceased was sixteen years and six months of age and was survived 
by his mother and father and eight brothers and sisters. He con- 
tributed to the support of his parents and family. The Referee 
found that the claimants were dependent upon their son for support 
and he awarded them twenty per cent of his wages, or $4 per week 
for a period of 300 weeks, and the sum of f 100 for funeral expenses. 
The defendant appealed from the award on the ground that the 
Referee erred in awarding compensation for 300 weeks since this 
period extends 66 weeks beyond the time when the deceased would 
have arrived at the age of twenty-one years. The defendant contends 
that the Referee should have limited the award to the period during 
which the deceased would have remained a minor, and urges in sup- 
port of the contention certain rules of the common law. 

Proceedings under the Workmen's Compensation Act are purely 
statutory and the provisions of the Act must control in each case. 
The Act as amended in 1919 provides in Section 307, paragraph 5: 
"If there be neither widow, widower nor children entitled to com- 
pensation, then to the father or mother, if dependent to any extent 
upon the employe at the time of the accident, twenty per centum of 
wages." And in paragraph 7 of the same Rection it provides that 
this compensation shall be paid during 300 weeks. In other words, 
the age of the employe is entirely immaterial. If his parents were 
dependent upon him tn any extent, they are entitled to- compensation 
for 300 weeks. This is the plain provision of the Act, and the 
Referee and the Board are bound by it. There is no error in the 
award as made by the Referee. 

The findings of fact and conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



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Haring rs>. Roydhouse-Arey Co. 

Disability — Medical condition not result of aceident. 

When claimant suffered an Occident while in the course of bis employment, from 
which he fully recovered bot is suffering from progressive muscular atrophy, which 
is a medical condition not due to the injury in any way, the compensation agreement 
will be terminated. 

Claimant represented by L. B. Merrifield, Philadelphia. 
Defendant represented by Benjamin O. Friek, Philadelphia. 

OPINION BY COMMISSIONER HO UCK— February 28. 1921. 

This is an appeal by the defendant from the Referee's refusal 
to terminate an award. The claimant was injured on March 12, 1919. 
He was driving a team when his horses took fright and started off, 
throwing the claimant to the ground and injuring his right side and 
right shoulder. He developed appendicitis and pneumonia. He 
was awarded compensation for total disability and the defendant did 
not appeal from the Referee's award. On July 10, 1920, the defend- 
ant filed a petition to terminate the award. This petition states 
as follows: "Any disability which may have resulted from the acci- 
dent on account of which compensation was allowed, has long since 
ceased." And in support of that statement the following facts were 
stated: "If the claimant is suffering from any disability at the 
present time, it is due to another and previous accident and not the 
accident on acconnt of which the allowance of compensation was 
made." The petition was referred to a Referee who heard th» testi- 
mony. He refused to terminate the award and a portion of his 
decision is as follows: 

"The procedure in this case, according to the petition filed, 
was that the defendant should submit testimony to prove the 
facts set forth in their petition, namely: that 'if the claimant 
is suffering from any disability at the present time, it is due 
to another and previous accident, and not the accident on 
acconnt of which the allowance of compensation waB made. 
The testimony submitted by the defendant was to the effect 
that the claimant is now suffering from progressive muscular 
atrophy, which is purely a medical condition and not traumatic. 
The defendant failed to show by any testimony another or pre- 
vious accident than that of March 12th, 1919, which would cause 
such condition." 

The testimony before the Referee was entirely medical and it is 

- not disputed that the claimant, at the time of the hearing, was 

totally disabled. Dr. Bernard L. Kahn testified on behalf of the 

claimant and he stated that he is now suffering from disuse of his 



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joints; that he has been in bed so long that his joints have become 
stiffened, and that that is the only thing wrong with the claimant 
now. 

Dp. John A. Roger was called on behalf of the defendant. He 
testified that the^claimant is suffering with progressive muscular 
atrophy. That this is a medical condition and is not due to injury 
in any way, and that the claimant suffers no disability as the re- 
sult of any accident. 

Dr. John L. Redmau also testified on behalf of the defendant. His 
examination of the claimant was on May 1, 1920. He also testified 
that the claimant is suffering from progressive muscular atrophy. 
That this is a medical condition due to a toxic condition of some 
kind which affects the spinal cord and its functions. He said that 
the claimant's disability at the present time is not due to the accident 
of March 12, iOlD. 

In our opinion the medical testimony is clear and convincing that 
the claimant's present disability is not due to any accident and 
it- not the result of an accident, but is a purely medical condition. 
The claimant contends, however, that the Keferee did not err in 
refusing to terminate the compensation award for the reason that 
the defendant alleged, in its petition, that if the claimant ia suffer- 
ing from disability, it is due to another accident, which fact is not 
proved by the defendant's own witnesses, they having stated that 
the claimant's disability is not due to any accident. Judging from 
what the Referee said in his opinion, it seems that he adopted this 
view. This view ignores the very first allegation in the defendant's 
petition to terminate. That allegation is: "any disability which 
may have resulted from the accident on account of which compen- 
sation was allowed has long since ceased." And that allegation 
raised the real issue in this case. The real issue is whether the 
claimant's disability due to the accident for which he was awarded 
compensation has ceased. If it has, then the award should be term- 
inated. It is immaterial whether his disability now is due to prior 
accident or to a purely medical condition. If it is not due to the 
injury on account of which be was awarded compensation then, 
undoubtedly, the award should be terminated. In our opinion, the 
I osition of the claimant which, seemingly, was adopted by the 
Referee, is much too technical to he countenanced in the administra- 
tion of the Workmen's Compensation Act. The testimony taken at 
the hearing on the petition to terminate leaves us with no doubt that 
the claimant's diability is not due to the accident of March 12, 1919. 
and that his disability' due to that accident has terminated. Un- 
questionably, therefore, he is not now entitled to compensation. 

The decision of the Referee is reversed and Compensation Agree- 
ment No. 742422 is terminated as of July 10, 1920. 

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Floyd v. Hazel Coal Co. 

t'mtrae of employment — Driver of automobile truck killed before reporting for work. 
Where the driver of an automobiU truck, which was hired by the defendant 
company, waa killed while cranking (lie machine in a garage preparatory to report- 
ing for work, his death is not compensable inasmuch as lie Was not injured on the 
premises of his employer, nor was he farthering the interest or affairs of the 
defendant at the time of the accident. The truck waa the tool with which he 
worked, and he was in the same position as any other employ* who might be' injured 
while preparing bin tools preparatory to going to the place of his employment. 

Claimant represented by J. A. Stranahan, Mercer. 
Defendant represented by J. I). Darragh, Pittsburgh. 

OPfNTOK BY COMMISSIONER HOTJCK — February 28, 1021- 

Most of the essential facts in this case are not in dispute. John 
B. Floyd, the claimant's deceased husband, was owner of an automo- 
bile track. He had been hired by the defendant company to haul 
coal for it from its mine to any place directed. He was carried on 
(he company's pay roll and was paid at the rate of S2.R5 per ton. He 
had hauled one load of coal for the defendant on January 2, 1020. He 
went to the mines on January 7th for the purpose of obtaining an- 
other load but the machinery at the mine was out of order and no 
coal was prepared for delivery. He kept his truck in a public garage 
in Mercer, know as Johnson's garage, and on the morning of January 
8, 1920, he went to the garage and cranked his truck. The truck was 
in gear and it moved forward, squeezing the decedent against the 
wall and killing him. From statements made by the decedent lie was 
in all probability, intending to take the truck to the defendant's mine 
to secure coal. The Referee found that the decedent was an employe 
within the meaning of the Compensation Act, and that he was en- 
gaged in the course of his employment at the time he was injured. 
He accordingly awarded the claimant compensation, and from this 
award the defendant has appealed. ■ 

The appeal raises two questions. First, whether the decedent was 
an employe or an independent contractor. Second, if he was an 
employe of the defendant, whether he was in the course of his employ- 
ment at the time of the accident. Granting that the decedent was 
an employe, and that he was preparing his truck to proceed to the 
defendant's mine, the Board is, nevertheless, of the opinion that at 
Ihe time of the accident he was not engaged in the course of his em- 
ployment. This trnck was owned by the decedent and when he was 
injured he was not on the premises of the defendant, nor was he 
furthering the interests or the atfairs of the defendant at the time of 
the accident. The truck was not loaded and before the decedent 



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could accomplish anything in the nature of his employment, it was 
necessary for him to go to the defendant's mine. The truck was the 
tool with which he worked, and he is in the same position as any 
other employe who might be injured while preparing his tools pre- 
paratory to going to the place of his employment. Therefore, since 
the decedent was not in the course of his employment at the time of 
the accident, his dependents are not entitled to compensation. This 
makes it unnecessary for us to decide whether he was au independent 
contractor or an employe, for, resolving all inferences in favor of thi 
claimant, we arc convinced that she is not entitled to compensation. 
The award of the Referee is, therefore, reversed, and compensation 
is disallowed. 



Odzwiez v. Susquehanna Collieries Co. 

Course of employment — Employe injured while on way home. 
Decedent, after completing his work for the day, started for his home two miles 
distant, and while walking along a railroad track of the defendant boarded a trip 
of cars and received injuries when alighting which caused his death. Held, that the 
was not 'n the course of his employment at the time of the accident as there was 
nothing in the nature of his employment which required his presence* on the rail- 
road or on the tr:p of cars. 

Claimant i-epresented by Roger J. Dever, Wilkes-Barre. 
Defendant represented by Harry A. Gordon, Wilkes- Barrc. 

OPINION BY COMMISSIONER HOUCK — February 28, 1921. 

The claimant's deceased husband finished his day's work on March 
S, 1920, and started on his way borne along the tracks of thft defen- 
dant company. The mine where the deceased worked is known as 
Stearns shaft and it is two miles distant from (Hen Lyon, the place 
where the deceased lived. While on his way home, Odzwiez was 
overtaken by a trip of ears going in the direction of Glen Lyon. He 
boarded one of the cars and rode to Glen Lyon and when he left there 
he was caught between two of the cars and met with injuries which 
resulted in his death. Parallel to the railroad along which the de- 
cedent was walking were two public highways running from Stearns 
shaft to Olen Lyon. One of these roads is about four hundred feet 
west of the railroad and the other is about eighteen hundred feet 
east. The Referee who heard the case made a personal investigation 
of the scene of the accident and concluded that the decedent was not 
in the course of his employment when he met with the injury. The 
Bard is of the opinion that the Referee did not err in so concluding. 
The decedent could have left the place of Mb employment immediately 

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09 

after he finished his work, and there was nothing in the nature of 
hia employment which required his presence on the railroad or on 
the trip of cars. Kunin v. Penna. R. R. Co., 4 Dept. Reports, 2603. 
The findings of fact and conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



Silvestri v. Lehigh Valley Coal Co. 

Surgical and hospital services — When defendent is liable for. 

The employer will be llublc for tile private hospital expenses ami surgical 
tec, not exceeiJiiig $300, when it refuses to funvsh medical services lo the in- 
jared employe. The employer cannot escape tlie obligation to pay for those 
services after it deverops that the case was compensable. 

Claimant represented by Nicholas M. Curcio, Wilkes-Barre. 
Defendant represented by 8. W. Rhoads, Wilkes-Barre. 

OPINION BY COMMISSIONER HOUCK,— February 28, 1921. 

The Referee found as a fact that the claimant met with an injury 
while in the course of his employment which resulted in an inguinal 
hernia. The Referee accordingly awarded compensation and directed 
that any medical attention or costs of operation not to exceed J100 
shall be paid by the defendant. The defendant appealed, alleging 
that the Referee erred in concluding that the defendant should pay 
the costs of operation and medical attention not to exceed $100. 

The evidence shows that the claimant was injured on February 
23, 1920. The same day he summoned Dr. G. L. Hoffman, one of the 
physicians of the defendant company. Dr. Hoffman told him that he 
did not believe he was ruptured and that he should rest for a day or 
two and would then probably be all right. He went to see Dr. Hoff- 
man again and Dr. Hoffman referred him to Dr. s. P. Mengel. the 
thief surgeon for the defendant company. On his first visit to Dr. 
Mengel the hernia was not protruding. He went to see Dr. MengeJ 
u second time some weeks later. The hernia at that time was down 
and was in evidence, and Dr. Mengel, through Dr. Hoffman, offered 
to operate on the claimant. He agreed to perform the operation 
free of costs but the claimant was told that he would have to pay 
the hospital charges. Dr. Mengel did not make the offer as surgeon 
for the Lehigh Valley Coal Co, but as surgeon for the hospital. The 
claimant refused the offer and a few days later went to the Thompson * 
Hospital, Scranton, where he was operated on for hernia. Dr. Menge] 
told the claimant that his case was not compensable, and be told him 
positively that toe defendant company would not do anything for him. 

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100 

In view of this evidence the Board feels that the claimant was per- 
fectly justified in refusing Dr. Mengel's offer and in seeking a phy- 
sician of his own choosing. He was given to understand that the 
defendant company would do anything for him and he was at liberty 
then to choose whatever physician he pleased. The defendant com- 
pany, having refused to furnish medical services to the claimant, 
cannot escape the obligation to pay for those services after it devel- 
ops that the case was compensable. There is no error, therefore, in 
the Referee's conclusion that the defendant company shall pay for 
the medical services. 

The findings of fact and conclusions of law of the Referee are 
affirmed and the appeal is dismissed. 



Dokerty v. Railway Steel Spring Co. 

Compensation obliyation — When suspended. 

Where claimant liad relumed to work lifter an Injury and whs receiving com- 
pensation for partial disability, and then quit his work for the purpose of visiting 
Ireland, the compensation obligation will be suspended until the claimant returns 
to the United States. 

Appllee represented by C. H. Oregg, Greensburg. 
Appellant represented by J. I). Darragh, Pittsburgh. 

OPINION BY COMMISSIONER HOUCK— February 28, 1921. 

This is an appeal by the defendant from an order of the 
Referee. The claimant was injured on May 3, 1018, and he was duly 
awarded compensation for total disability. Later, on petition of the 
defendant this award was modified to provide compensation for 
partial disability. The claimant* had returned to work for the 
defendant company and his partial disability was calculated on his 
loss of earnings. The claimant continued to work for the defendant 
company until April 17, 1020, when he gave notice to quit on the 
ground that he was going to visit Ireland. On May 14, 1020. the 
defendant filed a petition stating that the claimant had left his 
employment and gone to Ireland, and praying that compensation 
should be suspended until his return. The petition was heard by a 
Referee who made the following order: "From the foregoing facts, 
your Referee accordingly disallows the petition of the defendant 
company to terminate but suspends payment of compensation pay- 
ments until the claimant's return to the United States." The defend 
ant appealed from this order on the ground that it merely suspends 
payment of compensation whereas it should suspend the compensation 
obligation until the claimant's return. 

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101 

The Board is of the opinion that the Referee intended by his order 
to suspend the compensation obligation during the time the claimant 
was absent from the country and from, his employment. The 
Referee's order is accordingly amended to read as follows: 

The petition of the defendant company to terminate the agreement 
is disallowed, but the compensation obligation is suspended until the 
claimant returns to the United States. 



Sweeney, et. el. v. Philadelphia & Reading Coal & Iron Co. 

, Widow re- in flirted— Coin pensn (ion due her. 

l'[ion the remarriage of n widow site ia entitled to a commutation of compensa- 
tion at the rate of forty per cent of tbe wages for one-third of the three hundred 
weeks' period remaining after lier marriage, not exceeding one hundred weeks, 
discounted at five per cent. 

Defendant represented by John F. Whalen, and B. D. Trotitman, 

Pottsville. 
Claimant represented by M. A. Kilker, Girardville. 

OPINION BY COMMISSIONER HOUCK— March 4, 1921. 

This is a petition for determination of compensation under agreed 
tacts. Harry Snyder met with an injury on May 5, 1920, while in the 
course ot his employment which resulted in his death on the same 
day. He left to survive him a widow and four children. Com- 
pensation agreement was entered into and compensation was paid to 
July 3, 1920, a period of seven, weeks, at the rate of 60% of the wages, 
or $12 pei- week, making a total of $84. On that date the widow 
re married and the, question to be determined is whether the com- 
mutated payment to the widow is to be on the basis of 60% or 40% 
of the wages, and how much is to be commuted. 

It was recently decided by the Board that upon the re-marriage 
of the widow she is entitled to a commutation of compensation at the 
rate of 40% of the wages for one-third of the three hundred week 
period remaining after her re-marriage. Mendeko i\ Pittsburgh Coal 
Co., 7 Dept. Reports, 282. 

In this case, therefore, the widow is entitled to commutation of 
compensation at the rate of $S per week for one-third of two hundred 
and ninety-three weeks, or ninety-seven and two-third weeks, calculat- 
ed in accordance with the provisions of Section 316 of the Workmen's 
Compnsation Act as amended in 1910. 



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Pupp v. Clare Manufacturing Co. 

Surgical services— Itefustil to permit operation — Compensation agreement terminated. 

The refusal of claimant to undergo a surgical operation for the removal of a 
finger, which became stiff from an injury received during the course of hia employ- 
ment, is unreasonable, and constitutes a ground for discontinuing compen -atian. 

Claimant represented by Edw. J. Swotes, and Walter N. Keating, 

Philadelphia. 
Defendant represented by P. A. Carroll, Philadelphia. 

ORDER BY MACKEY— Chairman— March 4, 1921. 

ThiB is a petition to set aside a final receipt and to restore com- 
pensation. The facts show that the man is a skillful engineer, and 
occupied an important post with the defendant, and that every con- 
sideration was extended to him both before and after the accident 

He was injured on April 24, 1920. He signed a final receipt and 
compensation was stopped on May 15 with the statement that he 
had been cured with a slight stiffness of one of his fingers. The 
defendant, by its insurance carrier, did not hold itself bound to the 
terms of this receipt, hut it continued compensation until June 28 
and furnished medical treatment thereafter. The Board finds that 
there was no reason after June 28 why claimant should not have 
returned to his former position. It is true that he would suffer 
Borne inconvenience because of the deformity of his finger, but he 
refused to have the same amputated and we find that this was an 
unreasonable position on his part. The amputation of this finger 
would remove the element of inconvenience and render him fully 
equipped to perform his former duties without any inconvenience or 
apprehension because of the present deformity. Such an operation 
is a small one unaccompanied by danger and such reasonable medical 
treatment that he ought to accept, and its refusal under the Act 
constitutes a ground for discontinuing compensation. 

This petition is dismissed. 



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Vendryehowicz r. Delaware, Lackawanna & Western 
R. R. Co. 

ParenU living apart—Children untitled to compensation. 

Where claimant wi 
casionally visited her 
compensation. 

Claimant represented by Roger J. Dever, Wilkes Barre. 
Defendant represented by Elmer D. Adair, Scranton. 

OPINION BY MACKEY— Chairman— March 9, 1921. 

The substance of the material findings of fact by the Referee in this 
case is that the claimant, a widow, was living separate and apart 
from her husband and that she was not dependent upon him for 
support at the time of his death. There were four minor children, 
however, under the age of sixteen, living with the widow and it was 
admitted, or at least the testimony of the claimant stands practically 
uncontradicted, that her husbnd occasionally visited her and made 
contributions toward the support of the children. The Referee ha8 
found as a fact that the two oldest children are entitled to com- 
pensation but the two younger ones are not because he finds! as a 
fact that the claimant was living with a man other than her husband 
and that these children are not the offspring of the deceased. This 
finding of fact is contrary to the policy of the law and cannot be sus- 
tained in view of the positive evdence that the deceased husband 
occasionally visited the wife and was not denied access to her. The 
law will not allow children to be bastardized hy such testimony. 

The award is accordingly modified to include the two youngest 
children who were born previous to the death of the father, Edward 
Vendryehowicz, born December 27, 1915, and John Henry Vendry- 
ehowicz, bom March 2, 1918. 

AWARD 

There is awarded to the guardian of Alexander, Mary, 
Edward and John Henry Vendryehowicz, compensa- 
tion at the rate of (45% of ?20) |9 per week for 
period from Apr. 9. 1919, to Feb. 12, 1921, inclusive, 
96 weekB and 4 days, f869.14 

To the guardian of Mary, Edward and John Henry 
Vendryehowicz at the rate of (35% of |20) $7 per 
week, from Feb. 13, 1921, to Jan. 6, 1925, end of first 
300 weeks, 203 weeks and 3 days, 1424.00 

And from Jan. 7, 1925, to December. 7, 1925, (when 
Mary arrives at the age of sixteen) $7 per week, 
47 weeks and 6 days, 335.00 

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MM 

To the guardian of Edward and John Henry Vendry- 
chowicz from Dec. 8. 1925 to Dee. 21!, 1031 (when 
Edward arrives at the age of sixteen) 315 weeks and 
5 days at (25% of ¥20) $5, 157S.57 

To the guardian of John Henry Vendrvchowicz, from 
Dec. 27, 1031, to Mar. 1, 1934, inclusive, 113 weeks 

and 5 days, at (15% of $201 $3 per weeks, 341.11 

Total, $4547.85 

In addition to this, the funeral expenses of J100 and 
costs as taxed by the Referee. 



Barron v . Lehigh Valley R, R. Co. 

Inter-state commerce — When employe engaged in. 

An employe havlnu left the place of his departure under orders to make an inspec- 
tion of an interstate train, and is killed before the actual work of inspecting the 
can had begun, Held ; compensation must be disallowed. 

OPINION BY MACKEY— Chairman— March 9, 1921. 

The Referee granted compensation in this ca«e bawd upon his 
second finding which is as follows: 

"That at the time of the death of the decedent, Mike 
Barron was on the premises of the defendant, was in the 
company's employ, and was in the course of his employment 
with the defendant, and not engaged in either intra or inter- 
state commerce at the time of his death." 

This is a mixed finding of fact and law. lie has not fct out the 
facts upon which he based his conclusion that the decedent at the 
time of his death was engaged in either intra or inte-state com- 
merce. 

If the facts as disclosed by the evidence in the record support the 
Referee in that conclusion, of course his allowance of compensa- 
tion must be sustained, or if the defense has not established the 
fact that the employee at the time of the accident which caused his 
death was engaged in interstate commerce, be will be sustaned. If 
there is no particular evidence indicating what the deceased was 
doing, it being during the working hours and he being on the 
premises of the employer, the presumption would be that he was 
in the course of bis employment and it could then he held that he 
was in the class recently created by the Supreme Court of the 
United States, viz: "undesignated employment."' See Railroad Co. 
t-. Winter*, 242 U. 8. 363. 



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105 

A careful review of the facta of this case fails to support the 
Referee in his conclusions. The decedent was a car inspector. His- 
duties consisted of inspecting all cars that were to be removed by 
the defendant from Tunnel siding, 1) rift on, He was to determine 
whether or not, to quote "the language of the witnesses, "they were 
in good shape and all ready for movement." Hi* hours of service 
were from 2 P. M. to 10 P. M. There was no one else there assigned 
to inspect cars. He then was an inspector of inter and intrastate 
cars. The decedent boarded a caboose drawn by engine No. 326 at 
Ashmore, and rode to the Tunnel siding at Driflon. This engine 
was sent there for the purpose of hauling a train of forty-four cars 
out of the said siding. 

The decedent rode in the caboose attached to the engine. When 
the caboose and the engine arrived at the siding they were separa- 
ted. The caboose was left at one end of the train while the engine 
started for the other. The decedent boarded the engine so as to go 
to that end of the train. The duty of the decedent was then to in- 
upeet this train and we take it that his employment will be deter- 
mined by the character of this train as being of either in intra or 
inter-state commerce. 

There was nothing "nndesignated" about the decedent's employ- 
ment. He was not waiting upon the premises to be assigned to 
duty. There was nothing speculative about his assignment what- 
soever. His simple duty was to inspect each one of those forty-four 
care that were about to be moved for the purpose of determining 
whether each and all of the cars were in fit condition to be moved. 

This Train, a Lehigh Valley R. R. car No. 18105, whose destination 
was Perth Amhoy, New Jersey; P. R. R. car No. 165122, consigned 
to Camden, New Jersey ; P. R. R. car No. 15525!) to Wilmington, 
Delaware, and a New York Central car No. 408338 to Parkeville, 
Long Island. Other cars in that train were also billed to points 
outside the State of Pennsylvania and as a matter of fact, this train 
was taken to Packerton, Pa. and on the following day these cars, 
thus designated were sent on to their respective destinations. There- 
fore the very movement of this train out of this siding was a part of 
an inter-state trip and any member of the crew or employe of the 
defendant who assisted in the movement of this train or in doing 
something that was essential to the movement of this train was en- 
gaged in inter-state commerce. 

There can be no escape from this position, in view of the latest 
utterance of the Supreme Court of the United States on the move- 
ment of cars. «fSee Hancock v. Phila, & Reading Rwy. Co. 6 Dept. 
Heporfs 1477.1 also 253 N. S. 284. 



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106 

The decedent was killed while passing from the rear end of this 
train of forty-four cars to the front end, upon the engine. It is true 
that the actual work of inspecting those cars had not begun but he 
had left the place of his departure under orders to go to that train 
and make the inspection. He had arrived at the siding where the 
train stood. He was passing- from one end of the train to the other 
for the purpose of beginning to inspect the cars at the front end. 

The work of inspection this train was absolutely and indisput- 
ably a necessary act in connection with the moving of an inter- 
state train. Anyone who aided in that movement was engaged in 
inter-state commerce. (See Pcdersen v. 1~>. L. & W. R. R. Co. 22!t 
U. 8. 146, also New York Central v. Carr 238 V. B. 263. and Seal 
t\ Rwy. Oo. 229 U. S. 15fi; Erie R. R. v. Wynnefield 244 U. S. 170, 
and our own cases as follows: Wadsworth v. Railroad Co. 6 IX>pt. 
Reports 16; Appleton v. Lehigh Valley R. R. Co., 4 Dept. Reports 
2301; Hill «. V. & R. R. R. Co., 2 Pa. Compensation Decisions 324). 

In North Carolina R. R. Co. v, Zaehary (232 U. S, 260), an en- 
gineer bad inspected and prepared an engine for a trip which un- 
doubtedly would have been interstate and would have hauled cars 
that were of inter-state character. This engineer was killed after 
preparing his engine for the trip and while on his way to his board- 
ing house where he intended to eat a meal before the trip began. It 
was argued that he was thus engaged upon a personal errand and 
not npon the carrier's business, and also in answer to the sugges- 
tion that the inter-state commerce was still "in futuro" that the 
deceased was not engaged in inter- state commerce at the time 
of his death, the court held that the acts already done by the 
deceased were performed as a part of inter-state commerce, and the 
fact that the freight cars had not yet been coupled up to the engine 
was "legally insignificant", and further, the court held that it was 
very clear that the man waa still on duty "when he departed for his 
boarding house and was still employed in inter-state commerce, not- 
withstanding his temporary absence from the locomotive engine." 

As we have previously suggested, the inspection of this traiD was 
a part of the inter-state trip, was a necessary function to perform 
before the trip began, and while no cars had been actually inspect- 
ed, the deceased was on the engine that was to haul these cars, was 
at the point where his work was to begin, and what be had done up 
to that time was a part of one consecutive uninterrupted service 
calculated to promote the movement of that inter-state train. 

Compensation must therefore be disallowed because the employe 
and employer were engaged in inter-state commerce'at the time of 
ihe accident which caused his death. 

The award of the Referee is accordingly set aside because of want 
of jurisdiction. 

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Slorrocco v. Clydesdale Brick-& Stone Co. 

Marriage — Proof of. 

A. non-resident alien woman claiming eompensntion as a dependent widow, may 
prove her marriage by the official record of the civil marriage, or by the chundi 
record of a religiout marriage. 

Claimant represented by Joseph W. Henderson, Philadelphia. 
Defendant represented by John Madden, Jr., Pittsburgh. 

OPINION BY COMMISSIONER HOTJCK— March 9, 1921. 

In this case the Referee awarded compensation to the widow of 
^ngelo Morrocco and her son Luigi. Both the claimant and the de- 
fendant have appealed from the award. The ground of the claim- 
ant's appeal is that the claimant made a mistake in stating in the 
claim petition that the dale of death was June 22, 1918, the true 
date being June 22, 1917. The Referee awarded compensation from 
July 7, 1918, whereas it should be from July 7, 1917. the error being 
due to the erroneous statement in the claim petition. The claimant 
merely desires to have the Referee's award modified so that com- 
pensation will start from the true date. The defendant's appeal 
is based on the ground that there is no evidence to spport the find- 
ing of dependency and no evidence to show that the deceased had a 
legal wife. The Board is convinced that there is evidence to support 
the Referee's findings, 

The finding that the widow is the wife of the deceased is baaed on 
documentary evidence showing a religious marriage in Italy, and 
numerous letters were offered in evidence, written by the deceased 
to his wife during his lifetime. The Board has ruled that a non- 
resident alien woman claiming compensation as a dependent widow 
may prove her marriage by the official record of the civil marriage 
or by the church record of a religious marriage. Rulings of the 
Workmen Compensation Board, 1 Mackey, 442. The evidence of- 
fered in this case shows the performance of a religious marriage and 
falls within the rule adopted by the Board. The evidence also shows 
that the widow and son were dependent to some extent, upon the 
earnings of the deceased. Therefore, the defendant's appeal is dis- 
missed. 

The deceased having died on June 22, 1917, compensation should 
commence on July 7, 1917, and the award as made by the Referee 
by which compensation commences on July 7, 1918. is due simply to 
the typographic^ error in the claim petition. 

The Referee's award is accordingly modified to provide for coni- 
pensaton commencing July .7, 1917. With this modification the find- 
ings of fact and conclusions of law of the Referee are affirmed. 

Google 



Nicholson v. Buffalo, Rochester & Pittsburgh Ry. Co. 

Railroad — Real defendant. 

Where a railroad was under the control and being operated by the Federal Ad- 
ministration at the time of the injury, the Director General of Railroads mast be 
named as defendant, otherwise there can be no allowance of compensation. 

Appellant represented by John G. Whitmore, Ridgway. 
Appellee represented by Charles J. Margiotti, Punxsutawney. 

ORDER BY THE BOARD— March 9, 1921. 

Compensation must be disallowed in this case for the reason that 
the accident, for which the claim petition is filed, happened while 
the Buffalo, Rochester & Pittsburgh Rwy. Co. property was under 
the control and being operated by the Federal Administration. The 
Director General of Railroads under the Federal Administration 
ought to have been named as the defendant, and while it is undoubt- 
edly true that had lie been so named, the same officer or officers would 
have been served upon whom the service of this petition was made, 
nevertheless, these officers were not acting for the defendant as pre- 
sently named, but were employes and agents of the Federal Adminis- 
tration. There was no attempt made to amend the record by the 
substitution of the Director General of the Federal Railroad Adminis- 
tration within the proper period of time. The statute of limitations 
now bars any such amendment, and therefore we must hold that 
the present defendant is not responsible for this accident, for, at 
the time it occurred it had no jurisdiction over this railroad proper- 
ty and was not in control or in operation of the same. 

The petition is dismissed. 



Riley v. Carnegie Steel Co. 

Strain— Violence to physical structure of body. 

Where deceased, while nt work in the course of liis employment, hursted an aneur- 
ism by lifting an adding machine which caused his death, liis death is compensable 
aa it constitutes sudden violence to the physical structure of the body within the 
meaning of that term. 

Appellant represented by T. F. Ryan, Pittsburgh. 
Appellee represented by John G. Fraaer, Pittsburgh. 

OPINION BY MAOKEY— Chairman— March 9, 1921. 

There was a disallowance of compensation in this case by the 
Referee. We will, under the powers conferred upon us by (he amend- 
ed Compensation Act of 1919, Section 423, make our own findings of 
fact and draw our own conclusions of law, and if in so doing we 



10!) 

(lifter with the Referee, we will direct an award without granting 
a hearing de novo, for in this Section the Legislature has empower- 
ed us to do this in the following language: — 

"In any such appeal the Board may disregard the 
findings of fact of the Referee, examine the testimony 
taken before such Referee, aud if it deem proper may 
hear other evidence, and may substitute for the findings 
of the Referee such findings of fact as the evidence 
taken before the Referee and the Board as hereinbefore 
provided may in the judgment of the Board require, 
and make such disallowance or award of compensation 
or other orders as the facts so found by it may require." 
We find that H. C. Riley, the deceased, was employed' by; the Car- 
negie Steel Co. at its Lucy furnace, Pittsburgh, as an office clerk at 
a weekly wage in excess of $20 per week ; that he died May 15, 1920, 
in consequence of an injury received May 3, 1920, while upon the 
employer's premises and engaged in the course of his employment. 
He left to survive him his widow, Catherine B. Riley, the claim- 
ant in this case, who was living with him at the time of his death 
as his lawful wife and was dependent upon him for support, to- 
gether with the following dependent children : 

James Joseph Riley Born July 25, 1910 

Henry C. Riley, Jr " May 18, 1912 

William A. Riley " August 23, 1913 

Catherine B. Riley " November 27, 1919 

Anastasia M. Riley " November 22, 1917 

Daniel C. Riley " November 21, 1914 

All of the said children living with the father at the time of bis 
death and also being dependent upon him for their support. 

We find that on May 3, 1920 while in the course of his employ- 
ment, the deceased while seated at his desk was subjected to an un- 
usual strain incidental to lifting an adding machine. Said adding 
machine weighed about fifty pounds and from the position that the 
deceased was in at the time, the said movement placed such an im- 
mediate and unusual strain upon him that it caused the bursting 
of an aneurism from which he died. 

These findings of fact entitle the widow, the present claimant, to 
an award of compensation. (See Clark r. Lehigh Valley Coal Co. 
2 Mackey 36, also 264 Pa. 529). 
In that case the Court said: 

"In other words the rupture itself and the extra effort 
in vomiting would, under the circumstances, constitute 
sudden violence to the physical structure of the body 
within the law meaning of that term as heretofore de- 
fined by us." 
The Referee in that case had found that death occurred because 
of a ruptured aneurism caused by the violence of vomiting. 



11(1 

Tu the case under consideration the rupture of the aneurism was 

undoubtedly caused by lifting an adding machine and this act was 

in consequence of the employment of the deceased, was a part of his 

~duties and happened upon the employer's premises during the 

course of his employment. 

The whole situation meets the requirements of the Coart in the 
said case of CQark-u Lehigh Valley Coal Co. (supra.) 

(The award follows. 1 



Riley v. Carnegie Steel Co. 

Strain — Bunting of aneurism ivhile lifting machine. 

Where the deceased while in the course of his employment, seated at hie desk, 
was subjected to an unusual strain incidental to lifting an adding machine, which 
caused the bursting of an aneurism, causing his death, compensation will be awarded. 



Evidence — Hearsay — When sufficient. m 

An award will be made upon hearsay evidence when it has been corporated by 
usual anU ordinary occurrences surrounding it that would tend to establish its troth 
and lead the mind of an ordinary mm to the inevitable conclusion that the so-called 
"hearsay statements'' are true, and furnish a forceful and accurate recital of what 
bad happened. 



Claimant represented by T. F. Ryan, Pittsburgh. 
Defendant represented by John G. Frazer, Pittsburgh. 

OPINION BY MACKEY— Chairman— November 23, 1921. 
Hearing At novo. 
■ HISTORY. 

Harry C. Riley was employed by the Carnegie Steel Co. at Lucy 
furnace, Pittsburgh, as an office clerk at a weekly wage in excess 
cf $20 per week; he died on May 15, 1920, leaving to survive him a 
widow, the claimant, with whom he resided at the time of his death 
and who was dependent upon him for support at that time, together 
with the following children: 

James Joseph Riley Born July 25, 19' 0; 

Henry C. Riley, Jr " May 18, 1912 ; 

William A. Riley " August 23. 1913 ; 

Catherine B. Riley " November 21, 1914; 

Anastasia M. Riley " November 22, 1917; 

I>aniel C. Riley " November 27, 1939; 

The claimant, Catherine B .Riley, filed a petition for compensa- 
tion for herself and dependent children, alleging that on May 3, 1920, 
while in the course of his employment by the defendant, at about 



Ill 

9 o'clock in the morning, the deceased reached over to a desk at hia 
side and a little to the rear of the position in which he was seated 
and lifted an adding machine to the desk in front of him, causing 
a strain which broke a blood vessel or an aneurism, resulting in 
hemorrhages and How of blood until death ensued. 

The deceased at the time was thirty-five years of age and enjoying 
absolute good health. He reported for work on that date in his 
usual good health hut about nine o'clock in the morning complained 
cf pains in his chest and was frequently observed rubbing his chest 
and giving intimation of severe pain. ITe rapidly grew hoarse and 
began, spitting blood. He returned to his home and called for a 
physician to administer to him The deceased told his wife and the 
physician that he had suffered an accident while lifting the adding 
machine and had felt something give way within his chest. There was 
1:0 postmortem made and the attending physician offered his opinion 
that the deceased died as a result of a hemorrhage caused or super- 
induced by the rupture of an aneurim orthe erosion of a terminal 
artery due to the strain suffered by the deceased as told by the de- 
ceased to his physican, his wife and fellow employes. 

Testimony shows that the machine that was lifted weighed about 
fifty pounds, and that the deceased frequently was compelled to lift 
it but no one saw him do this upon the day in question. 

He complained of pain in his chest to his fellow workers and to 
the medical representative of the employer during the day, but the 
first time he gave any history of the accident was during the even- 
ing when visited by his physician. 

The Compensation Board granted compensation upon the follow- 
ing finding of fact: 

"The deceased was subjected to an unusual strain 
incidental to lifting an adding machine, said adding 
machine weighing about fifty pounds, and from the 
position that the deceased was in at the time, the said 
movement placed such an unusual or immediate strain 
upon him that it caused the bursting of an aneurism 
from which he died." 

The learned Court of Common Pleas of Allegheny county has re- 
turned the record to the Hoard for further consideration under the 
practice intimated in Kuca r. Lehigh Valley Coal Co.. 268 Pa. 163, 
and quotes from the said case as follows: 

"In furtherance of its humane purposes, the Act gives 
the claimant every opportunity to produce evidence to 
sustain her claim, and, in directing that the report 
be returned to the Compensation Board for further 
hearing, opportunity is presented to produce such 
additional evidence." 

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112 

This opportunity was given the claimant and she produced ad- 
ditional medical testimony before the Board at a meeting in Pitts- 
burgh, October 19, 1021. 

DISCUSSION. 

. The above recited facts and the medical testimony in the record, 
as it appeared before the Court of Common Fleas and now with tbe 
additional testimony taken at the last meeting, clearly show that 
the deceased at the time of the incident referred to in tie evidence, 
which has been declared to be hearsay testimony by the learned 
Court of Common Pleas of Allegheny County, was a man of unusual 
good health, robustness and physical endurance ; that when lie went 
to his day's work on the day in question lie enjoyed all this condi- 
tion of health and physical perfection. 

The medical testimony, however, clearly demonstrates that the 
unusual phenomena experienced by the deceased as to the hemorr- 
hages could be brought about by only one of two ways: — tuberculosis 
or the bursting of an aneurism. By elimination we have the burst- 
ing of an aneurism as the only cause, for we find, as a fact, from 
the medical as well as the other testimony in the case, that tie 
deceased was not tubercular and that the emission of blood from 
the mouth on that day did not come from any abnormal condition 
of his lungs incidental to tuberculosis. 

We, therefore, have this man suffering the bursting of an aneurism 
during his working hours upou the employer's premises, while he was 
engaged in prosecuting the employer's work. We have it in the 
testimony that men with aneurisms could live their whole life 
through without a hemorrhage, and that the usual and ordinary 
way of causing the bursting of such an abnormal condition of the 
blood vessel known as an aneurism is by a strain. 

We have, further, that in the usual and ordinary employment of 
this man he usually sat in a certain position at his desk, and that 
he would turn and in a rather cramped position lift and adding 
machine weighing fifty pounds, and then we have the statement 
made to his wife, his fellow employes and to his physician that he 
had suffered some unexpected or untoward event in the act of lift- 
ing this machine. 

While it is very true that the ordinary hearsay testimony cannot 
be taken as a basis of a compensation award, standing alone, never- 
theless, there are many times in death cases when what is ordinarily 
known as "hearsay evidence" gives us the very hest and most ac- 
curate picture. In numberless cases no eye witness has actually 
seen the accident. We thoroughly discussed such situations 
in Leary v. MrTlvnin (3 Pept. Reports IfiliU, Pennsylvania Work- 



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118 

men's f'onipeiisaton Board Volume 11, page 23-1. In this case we 
quoted Lord Cozens- 1 lardy in Proctor' r. Serbino, 3 1\. B. 344, also 
10 Negligence Compensation Cases Annotated, page *>1S as follows: 
"This (referring to the ordinary burden of proof) does not impose 
npou the dependents the burden of furnishing the direct evidence 
of the death. If there are facts from which :t presumption may 
properly be drawn, the application may succeed." 

Also, see Tirre v. Bush Terminal Co., 158 N. Y. Supp. 833 which 
holds that "when the question whether the death of an employe arose 
out of the employment is one of fart, a finding by a commission 
based upon a reasonable inference from the proofs is conclusive upon 
appeal." 

In Shelly v. Philadelphia & Reading Rwy. Co., 211 Pennsylvania 
100, our Court said "In the absence of direct evidence of the origin 
of a tire that is imputed to the negligence of a railroad company 
in not providing spark arresters, evidence of the unsual throwing 
of sparks by the company's engine a,nd of other fires started by 
them at about the time of the fire in question, is admissible. This 
role obtains also where there is uncertainty as to the engine that 
caused the Are and it cannot bo shown that the fire proceeded from 
a particular engine. This class of testimony is admissible because 
of the failure of direct proof and of the necessity of resorting to the 
proof of circumstances as the best evidence and the only evidence 
of which the case admits." 

The courts have sustained awards based upon this kind of testi- 
mony when it has l>een corroborated by usual and ordinary occur- 
rences siirounding it that would tend to establish its truth and lead 
the mind of an ordinary man to the inevitable conclusion that the 
so-called "hearsay statements" are true, and furnish a forceful and 
accurate recital of what had happened. • 

All the surrounding facts in this case indicate the probability and 
the truthfulness of the deceased's statements as to what did happen 
in this case. There was nothing about the whole recital by the de- 
ceased to his wife or his physician that would indicate that he was 
indulging in self-serving statements or had manufactured a story 
for the purpose of enabling his wife .ind dependents to recover com- 
pensation after bis death. At the ti ne these statements were made 
there was no evident probability of leatb, nor was there any evid 
ence that such a thought was in the mind of the deceased. He had 
been a well man—something happened to him that caused a hemorr- 
hage- — -something he had never before experienced. There is only 
one cause that could have brought about that hemorrhage, under 
this medical testimony, and that is the bursting of an aneurism. 
The deceased told his wife and physician that something gave way 



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114' 

within him as he was lifting this adding machine, and the doctors 
sa; that this cause would bring about this result. The physician 
brings his testimony within the ruling of the Supreme Court when 
he says that in his opinion the death was caused by the bursting of 
an aneurism due to an unexpected strain upon the deceased at the 
time when he said he had experienced this unusual happening, and 
that was at a time when the deceased was working for his employer 
upon the employer's premises. 

We hold, therefore, that the testimony in this case is sufficient to 
sustain the following findings of fact. (See Clark r. Lehigh Valley 
coal Co., 2 Mackey 36, also 264 Pa. 520; Wolford v. Ceisel Moving 
& Storage Co., 262 Pa. 454; Van Eman v. Fidelity & Casualty Co. 
cf New York, 201 Pa. 537; Smith v. Stoner, 243 Pa. 57.) 

FINDINGS OF FACT 

Harry C. Riley, the deceased, was employed by the Carnegie Steel 
Co., at its Lucy furnace, Pittsburgh, as an office clerk, at a weekly 
wage in excess of ?20 per week ; that he died May 15, 1020, in con 
sequence of an injury received May 3, 1920, while upon the employ- 
er's premises and engaged in the course of his employment. 

He left to survive him his widow, Catherine B. Kiley, the claim- 
ant in this case, who was living with him at the time of his death 
as hie lawful wife and was dependent upon him for support, together 
with the following dependent children: 

•Tames Joseph Kiley, Born July 25, 1910. 

Henry C. Riley, Jr., " May 18, 1912. 

William A. Riley. " August 23, 1913. 

Catherine B. Riley, " November 21, 1914. 

Anastasia M. Riley. " November 22, 1917. 

Daniel C. Riley, " November 27, 1919. 

All of the said children were living with the father at the time 
of his death and were dependent upon him for their support. 

And we find that on May 3. 1920, while in the course of his em- 
ployment, the deceased, while seated at his desk, was subjected to 
an usual strain incidental to lifting an adding machine. Said add' 
ing machine weighed about fifty pounds and from the position thai 
the deceased was in at. the time, the said movement placed such an 
immediate and unusual strain upon him that it caused the bursting 
of an aneurism, from which he died. 



The claimant is entitled to recover compensation. (The award 
follows. ) 



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Hanlon v. Wni. Cramp & Sons Ship & Engine Building Co. 

Medical attention — When not furnished by employer, payment of. 

Failure to furnish medical attention after notice to employer, will authorise the 
employe to secure his own, and there would be do justification to hold that the em- 
ploye would at some subsequent time during the thirty days, be compelled to dis- 
charge his own physician thus secured to make way for one which the employer 
then saw fit to furnish. 

Claimant not represented by counsel. 

Defendant represented by Richard A. Smith, Philadelphia. 

OPINION BY MACKEY— Chairman— March 14, 1921. 

This is a petition to correct the compensation agreement on the 
ground tliat ** omitted to take care of the doctor's bill. 

It seems that Michael Hanlon, the employe, was injured on Friday, 
January 2, 1920; he testified that he immediately reported to his 
employer where a nurse attended him at the dispensary of the 
defendant; there were splints put upon his shin bone and some 
stitches taken in the broken shin and some alleviating medication 
administered, thus the defendant was put upon notice of the injury 
and it was their duty to provide medical attention; this was not 
done and the employe secured his own, which was his right. 

The employe is entitled to be reimbursed for thirty days medical 
service after the first visit. The mere fact that after the defendant 
had neglected to furnish medical attention it became necessary for 
the employe to secure his own, there would be no justification to hold 
that the employe would at some subsequent time during the thirty 
days be compelled to discharge his own physician thus secured to 
make way for one which the employer then saw fit to furnish. 

The doctor in this case rendered proper services and is entitled to 
be remunerated at the usual and prevailing rates for like services in 
that community for the first thirty days, and it is directed that the 
parties modify the compensation agreement to this extent. 



Bough v. Crown Auto Painting Co. 

Occupational disease — A'oi compensable. 

Where a compensation agreement has been entered into, and it develops that 
disability of employe is due to an occupational disease and not to nn accident, the 
agreement will be set aside. 

Claimant represented by George C. Elauder, Philadelphia. 
Defendant represented by Harry L. Mears, Philadelphia. 

OPINION BY COMMISSIONER JAERETT— March 14, 1921. 
On July 19, 1920 the parties entered into a compensation agree- 
ment on agreed facts and, as concerns the matter at hand, shows 



116 

that the claimant was in the employ of the defendant at 1406-14 Vine 
Street, in the city of Philadelphia on February 21, 1920 at 10 Al M. 
and on said date while in the "employment" of the defendant, "rhP 
employe in question was not injured by accident bat by the fames of 
paint making him ill, resulting in pluvium lead poisoning," the nature 
and the cause of injury being "lead poisoning, caused by inhalation 
of paint fumes ;" that $204 compenation was paid the claimant, beinjj 
the amount due at the date of the agreement. 

The record does not show whether or not compensation was paid 
after the date of the agreement. 

On October 11, 1920 the defendant filed the petition before us. to 
terminate the agreement, alleging: 

"The condition from which plaintiff has suffered is an 
occupational disease and not an accident, in accordance 
with the terms and provisions of the Workmen's Com- 
pensation Act, and therefore, the said -Tames Bough is 
not entitled to compensation under the aforesaid agree- 
ment." 



"The agreement in this case was entered into upon 
mistake of facts on the part of the defendant. 

The claimant answered the petition, setting forth that 

"The agreement in this case was not entered into 
upon any mistake of fact. If there was any mistake, it 
was a mistake of law," and "I am still totally disabled 
from work on account of the injury for which Compensa- 
tion Agreement No 974641 was entered into between the 
Crown Auto Painting Co. and myself." "It is denied 
that the said agreement should be terminated as prayed 
for in the said petition for the following reasons: 

The petition of the Crown Auto Painting Co. is a 
petition for termination of Agreement No. 974641. I am 
advised that the only causes provided for the termina- 
tion of a compensation agreement are, 'that the disabil- 
ity of an injured employe has increased, decreased, re- 
curred, or has temporarily or finally ceased.' My dis- 
ability has not increased, decreased, recurred, or tem- 
porarily or finally ceased. At the time of the making 
of the compensation agreement, my disability constituted 
total disability and still constitutes total disability." 

The matter came on for hearing before the Board at Philadelphia 
on January 20, 1921. From the testimony taken, we are satisfied 
that the claimant's condition is not due to an accident as contemp- 
lated by the Workmen's Compensation Act of 1915 and its amend- 
ments, but it is an occupational disease, to-wit, lead poisoning, the 
result of gradual development from long continued exposure to the 



117 

natural danger incident to the claimant's employment, and the claim- 
ant, therefore, as a matter of law was not entitled to compensation. 

The following is interesting, which is copied from Adams u. Acme 
White Lead Color Works Co., 6 N. C. C. Page 484: 

"* * * 'What is an 'occupation' or 'occupational' 
disease? The Century dictionary and cyclopedia defines 
an 'occupational disease 7 as 'a disease arising from 
causes incident to the patient's occupation as lead 
poisoning among painters.' In the instant case the 
undisputed medical evidence shows that lead poisoning 
does not arise suddenly, but comes after long exposure. 
It is a matter of weeks or months or years. It is 
brought about by inhalation, or by the lead coming 
into the system with food through the alimentary canal, 
or by absorption through the skin. In any case, it is 
not the result of one contact or a single event. In 
'occupational diseases' it is drop by drop, it is little hy 
little, day after day for weeks and months, and finally 
enough is accumulated to produce symptoms. It also 
appears that lead poisoning is always prevalent in the 
industries in which lead is used, and a certain per- 
centage of the workmen exposed to it become afflicted 
with the disease. Elaborate precautions are taken 
against it in the way of instructions to the men, masks 
to protect the respiratory organs, etc. Whether the 
workmen will contract it or not will depend upon the 
physical condition, care and peculiarity of the individ- 
ual; and the amount of time it will take to produce ill 
effects or death also varies " * *" 

It is correct as contended by the claimant, that the only causes 
provided for the termination of a compensation agreement are "that 
(he disability of an injured employe has finally ceased," 1>ut it is to 
be noted that by Section 413 of the Act of 191°, P. L. 642 the Board 
is given authority to set aside a compensation agreement upon a 
petition filed or in the course of proceedings under any petition 
pending if it was founded upon "mistake of law or of a fact." 
It being clearly shown here that the agreement was founded upon 
a mistake of law, to-wit, the defendant agreeing to pay for disability 
not due to an accident as contemplated by the Act, the agreement 
must be set aside. 

The agreement is accordingly set aside for the reasons stated. 



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Drake v. Northwestern Mining & Exchange Co. 

Burial expense i — Payable to whom. 

Under Section 307 of tlie AiCt of 1915, the reasonable expenses of the last sick- 
ness and burial, not exceeding $100 is payable to the dependents, or if there be n« 
dependents, then (o the personal representatives of tlie demised. 

Claimant not represented by counsel. 

Defendant represented by H. J, Connolly, Scranton. 

OPINION BY COMMISSIONER JARRETT— March 14, 1921. 

The Referee awarded the claimant, as the personal representative 
of the deceased employe, $100, the expenses of the last sickness and 
burial of the deceased, as provided by Section 307 of the Workmen's 
Compensation Act of 1915. 

The record shows that the deceased employe left to survive him a 
widow and one child residing in Europe, who have, through Z. Kur- 
knowski, filed a claim petition for compensation. It also shows that 
the claimant is a brother of the deceased and he buried him at an 
expense of $300, $150 of which he has paid, and that a power of at- 
torney was given by the deceased to the claimant; it is under this 
power of attorney the claimant contends he lias nuthorty to collect 
the $100 awarded. 

We think there is no necessity at this time of deciding whether 
or not the claimant under the record is the pergonal representative 
of the deceased inasmuch as the deceased as stated, left to survive 
him a widow and a child who have filed a claim petition. 

Section 307 of the Act supra is in part as follows: 

"Whether or not there be dependents as aforesaid the 
reasonable expenses of the last sickness and burial not 
exceeding $100 . . payable to the dependents, or 

if there be no dependents then to the personal repre- 
sentatives of the deceased . . . . " 

It is plain, from the wording here, that the persons first entitled 
are the dependents, then the personal representatives. It follows 
then that even if the claimant here is the personal representative, 
he would not be entitled to an award of the $100 if the widow and 
child or either are dependents. 

We will therefore set aside the findings of fact, conclusions of 
law and award of the Referee, and grant a rehearing to be held be 
fore Referee Gus M. Gleason. The Referee will await the final de- 
termination of the matter on the claim petition filed on behalf of 
the widow and child before holding the rehearing. It is likely that 
the hearing on the claim petition filed on behalf of the widow and 



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119 

child will be heard before Referee Oleason. We will therefore sug- 
gest that the matter of the funeral expenses be taken np at this hear- 
ing and, under the circumstances, we feel that the representative 
of the widow and child, to be fair, should go on record agreeing 
that the defendant pay this part of the award (if there will be an 
award) to the claimant here, or the person to whom the balance of 
the funeral expenses are due. 



Waugh v. Pittsburgh Gazette Times. 

Course of employment — // casual, no defense. 

Where claimant wes employed to deliver newspapers on Sunday only, and while 
hinking such deliveries is injured, Held; What he was doing was In the regular 
course of Business of the employer, and he could not be excluded from the benefits 
of the Compensation Act on the ground that his employment was casual. 

Claimant represented by Charles H. Young, Pittsburgh. 
Defendant represented by William A. Jordan, Pittsburgh. 

OPINION BY COMMISSIONER HOUCK— March 24, 1921. 

The claimant in this case was employed by the defendant to de- 
liver newspapers from Cresson. This work was done on Sunday 
only and during the rest of the week the claimant managed a bil- 
liard parlor in Cresson. The newspapers were left at the Cresson 
station of the Pennsylvania K. R., assigned to the claimant in 
handles and each bundle was marked wth the names of the different 
carriers and the different towns where they were to be delivered. 
The claimant transported the newspapers in his own automobile 
and was paid $10 per week for his service. He was paid $40 per 
week as manager of the billiard parlor. On Sunday, October 3, 1920, 
wbjle the claimant was delivering newspapers for the defendant, his 
automobile hit a large stone and upset, as a result of which the 
claimant's right leg was fractured. 

On these facts the Referee awarded the claimant compensation 
and the defendant has appealed on the ground that the claimant 
was an independent contractor and not an employe, and that his 
employment was casual in character. Even if the claimant's employ- 
ment was casual, nevertheless, what he was doing was in the. regular 
course of business of the defendant and he could not be excluded from 
the benefits of the Compensation Avt on the ground that his employ- 
ment was casual. 

The question as to what constitutes an independent contractor 
was fully discussed in a recent opinion by Chairman Mackey, Cal- 
Mhan v. Montgomery, 7 Dept. Reports, 55. And under the doctrin' 
laid down in thnt case the board is of the opinion that the olaimai-' 



120 

in the case at bar, was an employe of the defendant and as such en- 
titled to compensation since he was injured while in the course of 
hie employment. 

The findings or fuct ami conclusion* of law of the Referee are af- 
firmed, and the appeal is dismissed. 



Creasy v. Phoenix Utility Co. 

Ocpcndcnvy — VPi/e tiring apart from her husband. 

Where a wife was not living with her hushnnd ut the Lime of his der.th, acinal 
and not mere potential or prospective dependent)- must be shown to entitle her to. 
compensation. 

Claimant represented by Aubrey, Steckle & Senger, Allentown. 
Defendant represented by Herald J. OIRouike, Allentown. 

OPINTON BY COMMISSIONER HOUCK — March i*4, 1921. 

The claimants in this case are Ella Creasy, the widow of the de- 
ceased employe, and Occie Creasy, a daughter, and the only quest- 
ion in the case is whether Ella Creasy, the widow, is entitled to 
compensation. The Referee awarded both the widow and the daugh- 
ter compensation and his findings of fuct disclose that Ella Creasy 
and the decedent were married on December 25, 1917; that they 
went to housekeeping for a time and that on November 2, 1918, the 
decedent sent his wife, to her parental home, deserted ber and sold 
the furniture, and never returned to her. That the widow worked 
for a time in a factory or store at Norfolk, Va, sind that she then 
lived with her parents and helped with the house work and in 
this way earned the support of herself and daughter. The Referee 
also found that; the widow attempted to institute proceedings 
against her husband for support but was never able to locate Him 
to have the warrant served. The defendant lias appealed from the 
award to the widow alleging errors of law in support of the appeal. 

The defendant's chief contention is that the widow is not a 
dependent within the meaning of the Workmen's Compensation 
Act. In Section 307, paragraph 7, of the Workmen's Compensat- 
ion Act, is the following provision: "No compensation shall be 
payable under this section to a widow unless she was living with 
her deceased husband at the time of his death or was then actually 
dependent upon him for support." 

It is well settled that in case the widow was not living with 
her husband, actual and not mere potential or prospective depend- 
ency must be shown. It is admitted in this case that the widow 



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121 

was not living with her husband at (lie time of his death, and it 
is also shown and appears from the Referee's findings of fact that 
she was not actually dependent upon him for support. The Referee 
states in his fifth finding of fact: "The Claimant's efforts to enforce 
her rights were an evidence that she looked to her husband for 
support and indicated a strong probability that sooner or later 
she and her child would have been kept and provided for by him 
either voluntarily or involuntarily." in other words, the widow 
intended to enforce her right to support if given the opportunity, 
but in the meantime the evidence shows clearly that she received 
no support from her husband whatever. She testified that she 
received nothing from her husband since November 2, 1918. He 
was killed on May 10, 1920, so that for a period of about eighteen 
months she received no contribution whatever. During this time 
she and her child were supported by her own earnings and by con- 
tributions made to her by her father. 

Instead of proving actual dependency, the evidence shows that 
the widow was not, in fact, dependent on her husband after No- 
vember 2, 1918. Under these circumstances and under the facts 
as found by the Referee, the Referee erred as matter of law in 
finding that the widow was dependent on her husband at the 
time of his death. Maryanovic r Bethleham Steel Co., 5 Dept. Re- 
ports, 748; Wilde v Pennsylvania R.R. Co., 5 Dept. Reports, 873; 
Greene v Aetna Chemical Co., 6 Dept. Reports, 544. The Referee's 
award to the widow must, therefore, be reversed. 

There is no doubt, however, that the daughter of the deceased 
is entitled to compensation. Haldol? v. University of Pittsburgh, 7 
,I>ept. Reports, 66. The Referee's award is accordingly modified to 
provide as follows: To the guardian of Oecie Creasy thirty percent 
(30%) of $20, or $6 per week from May 20, 1920, to February 17, 
1926, three hundred weeks ¥,800. and from February 18, 1926 to 
February 14, 1834, at which time Occie Creasy will reach the age 
of sixteen years, four hundred and seventeen weeks, fifteen per- 
cent (15%) of $20, or $3 a week, $1,251; total $3,051. 



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Diamond v. Yorkshire Worsted Co. 

Arm — Loit 0/ me oj — Vwrilii, 

Where claimant lost the use of his arm by reason of an accident resulting in an 
injur; to the nenra agninst the cervical rib with resulting neuritis, compensation- 
will be awarded for loss of use of thct member. 

Claimant represented by Isaac M. Price, Philadelpliia. 
Defendant represented by John J. Ziegler, Jr., Philadelphia. 

OPINION BY COMMISSIONER HOUCK— March 24, 1921. 

The claimant, in this case, alleges that he met with a strain in 
bis right arm while in the course of his employment, which has re- 
sulted in disability. After hearing, the Referee awarded him com- 
pensation. 

The evidence and the Referee's discussion of the case shows that 
the claimant was suffering from bilateral cervical ribs, which means 
that he has a pair of ribs higher up at the base of the neck than the 
twelve pairs of ribs with which an individual is usually provided. 
This condition is congenital and never results from accident. How- 
ever, in lifting heavy objects the nerves in the arm may rub over the 
rib and become irritated, giving rise to neuritis. This is what hap- 
pened to the claimant in the case according to the view adopted by 
the Referee. 

The Board is not disposed to say that the Referee erred inasmuch 
as the evidence shows that the claimant never experienced any 
difficulty in lifting until on one occasion, while lifting a heavy loom 
weighing about four hundred pounds, he experienced a pain in his 
right arm and his arm thereafter was useless. The medical testi- 
mony offered at the hearing was rather meagre and the Board, there- 
fore, submitted the record of the case to Dr. J. B. Carnett for his 
opinion. Dr. Carnett has reported to the Board that it is entirely 
possible for neuritis to he caused in the presence of a cervical rib 
by a single injury in a heavy lifting effort of the arms, and that 
the occurrence on March 4, 1920, at which time the claimant was 
lifting the heavy loom and felt the pain in his arm. might readily 
have resulted in an injury to the nerves against the cervical rib with 
resulting neuritis and loss of muscular power in the arm. And 
Dr. Carnett gives it as his opinion that the claimant's neuritis re- 
sulted from his lifting effort of March 4. 1920. There is sufflcienl 
evidence aside from Dr. Carnett's report to sustain the Referee's 
findings of fact and conclusions of law, and Dr. Carnett's report 
simply confirms the Referee's decision. 

The findings of fact and conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



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Kenny v. John Eichleay, Jr. Co. 

Compensation agreement — Reitulatemont of. 

Where a considerable time has elapsed since the termination of the agreement, 
and claimant's present condition is a mental condition due, in a large measure, to 
worry from the outcome of his claim for compensation, and the evidence does not 
connect bis present condition with the original injury, the compensation agreement 
will not be reinstated. 

Claimant represented by Wickersham &. Metzger, Harrisburg. 
Defendant represented by M. F. Trader, Pittsburgh, and H. V. 
Quail, Harrisburg. 

OPINION BY COMMISSIONER HOUCK— April 4, 1921. 

This is a petition by the claimant to reinstate a compensation 
agreement. The claimant was injured on April 16, 1917. While 
erecting steel on a boiler house he slipped and fell a distance of 
forty feet. On May 9, 1917, the claimant and defendent entered 
into a compensation agreement providing for the payment of com- 
pensation throughout total disability. Compensation was paid 
under this agreement to June 21, 1918, amounting to $598.33. On 
June 21, 1918, the defendant filed a petition for termination of the 
agreement 'alleging that the claimant had disappeared and that the 
defendant was unable to locate him. This petition was referred 
to a Referee who fixed a time for the taking of testimony. The 
only testimony offered was on behalf of the defendant, and the 
claimant did not appear in person nor was he represented by coun- 
sel. On August 22, 1918, the Referee made an order terminating 
the agreement as of June 21, 1918. No appeal was taken by the 
claimant from the Referee's order. The record remained in this 
state until October 11, 1919, on which date the claimant filed a 
petition to reinstate the agreement. This petition set forth that 
the claimant failed to appear at the hearing on the petition to 
terminate the agreement by reason of the fact that he was at that 
time in the military service of the United States, and alleging 
that there was a recurrence of the claimant's disability, resulting 
from the original injury, while he was in the service of the United 
States, and a further recurrence of his disability after his dis- 
charge from such service, for which the claimant contends he is 
entitled to compensation for partial disability. Some evidence in 
support of the claimant's petition was taken by a Referee. The 
Board then recalled the record from the Referee and allowed the 
parties to take deposition". The evidence taken by the Referee 
and the depositions are all before the Board for its consideration 
in deciding' this case. 

ODyGoOgle 



124 

Tlie evidence shows that the claimant enlisted ia Hie United 
States Army on April 1, 1911S. He passed Ihe necessary physical 
examination qualifying him for service and lie was assigned to the 
Tliirty-third Kngineers. He served in the army until June Hi, 
1919. His service for the most part was in France where he was 
engaged in constructing railroads and doing the usual work al- 
lotted to the engineers. He was promoted to a corporal on July 
1, 1918, to sergeant on September 1. 1918, and to sergeant, first ctasB, 
on February 15, 1919. He was never called upon to serve within 
the firing lines. The claimant testified that he was confined to a 
base hospital in France as a result of a recurrence of his disa- 
bility, but the evidence on this point ia not very clear or definite. 

At the time he was discharged from the service he was again 
subjected to a physical examination and his discharge certificate 
indicates that his physical condition at that time was good. The 
evidence shows further that, after his discharge, jtjhe claimant 
lived in New York for about two months. He then went to Bridge- 
port, Conn, lie worked for various persons who were engaged 
in building operations. He worked on the Jennings garage, in 
Bridgeport, for two months, off and on. He woi-ked on the Singer 
Sewing Machine Building, in Bridgeport, and for the Leake Erect- 
ing Co., and on the Crane Valve Co. Building. The claimant testi- 
fied that the work he did was iron work, working on rods on a 
bending table, and bolting up rods. He said he was unable to say 
how much he earned at these various positions. His wife leased 
a small grocery store in Bridgeport in September, 1919, and the 
claimant helped his wife run this store. 

In support of his contention the claimant called two physicians. 
Dr. John J. MacPhee and Dr. Craeme M. Hammond, both of New 
York city. Both these physicians testified that the injury which 
the claimant suffered in 1917 could be a producing cause of the 
condition in which they found the claimant, and this' condition 
is mental slowness, absent-mindedness, depression, anxiety, inabil- 
ity to walk a straight line with his eyes closed, dizziness, and a 
diminished sense of pain and temperature on one-half of the body. 
In a word v they testified that the claimant was suffering from 
traumatic neurasthenia, caused by an injury, accident or shook. 
Both doctors, however, said that the claimant is physically com- 
petent to perform any labor that does not expose him to the danger 
of falling from high places. 

Dr. Emil Altman, of New York city, testified on behalf of the 
defendant. Dr. Altman found practically the same symptoms as 
Ihe other physicians and he gave it as his opinion that any strain, 
mental or physical, might be a competent producing cause of the 



125 

claimant's condition. He said that the claimant has symptoms 
both of neorotic trauma and of dementia praecox, which is a men- 
tal condition. This physician's testimony indicates that the clai- 
mant's condition is due, in large measure, to worry over the out- 
come of this claim for compensation, and he believes that the clai- 
mant can be.brougt back to practically normal as soon as the case 
is finally adjusted. In fact, the evidence of all the physicians in- 
dicates that the claimant's present condition is mental, that it 
might be due to any one of a number of causes, and that the claim- 
ant is capable of performing any labor which does not require him 
lo work at a distance from the ground. 

We have here evidence that the claimant served in the United 
States Army, passing a satisfactory physical examination both at 
the time of his enlistment and at the time of his discharge.. And 
that his service in the army mnst have been satisfactory is shown 
by the fact that he was promoted on three occasions. Besides this, 
we have the claimant's own testimony that he has done consider- 
able work since his discharge from the army, and there is no evi- 
dence, whatever, that his work was done unsatisfactorily or that 
he was unable to perform his work, or that he was discharged be- 
cause he was physically unfit. The claimant has also failed to 
show what his earnings have been since his discharge from the army, 
and has failed to show specifically any decrease in his earning power. 

Giving dne weight to all the evidence in the case, the Board 
feels that the claimant's present condition is a mental condition 
and that if he would make and effort to put this compensation 
claim from his mind an to apply himself to some suitable employ- 
ment, he would recover his normal condilion within a very short 
time. Aside from this, taking into consideration the length of time 
between the original accident and the time when the claimant 
filed his petition, the Board does not feel that the evidence con- 
nects the claimant's present condilion with the original injury def- 
initely enough to warrant the reinstatement of the compensation 
agreement. 

For these reasons the claimant's petition must be refused and 
the Referee's termination of the agreement will noi he disturbed. 



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Wooley v. Wichert. 

Practice and procedure — Dcfente— When it should be made. 

Where the defendant failed at the original hearing to make a defense on the 
grounds of maritime employment of the claimant, it is too late to raise Ihe question 
more then two years later uuoii a petition to terminate the agreement. 

Claimant represented by H. P. Boarts, Kittanning. 
Defendant represented by P. K. Willmann, Pittsburgh. 

OPINION BY COMMISSIONER HOUCK— April 4, 1921. 

The claimant's husband mot his death by drowning, while in the 
course of his employment as a fireman by E. M. Wichert & Co., on 
a derrick boat on the Monongahela river, at Stockdale, on November 
22, 1917. The claimant filed a claim petition and the case was heard 
on February 27, 1918, and on March 28, 1918. No witnesses were 
called by the defendant. The Referee, in due course, awarded the 
claimant compensation. No appeal was taken by the defendant 
from this award and on August 8, 1920, the defendant filed a petition 
to terminate the award on the ground that the case comes under 
Admiralty jurisdiction and that the Compensation Board has no 
jurisdiction under the decision of the United States Supreme Court 
in the case of Stewart v. Knickerbocker Ice Co., that the Referee 
had no jurisdiction, and that all the proceedings in the case were 
illegal and void. This petition was referred to a Referee and he 
refused to terminate the award since the defendant failed to show 
that the status of any of the dependents has been changed since the 
award was made. From this decision the defendant has appealed. 

Tfhe defendant never before raised the question that the Compensa- 
tion Law of Pennsylvania did not apply because the deceased employe 
was engaged in maritime employment. The United States Supreme 
Court having decided in a recent decision that the Compensation Law 
does not apply to maritime employment, the defendant now seeks 
to raise this defense, and the defendant contends that the legal status 
of the dependents has been changed by the decision of the Supreme 
Conrt. The law applicable to a defense of this character is similar 
to the law applicable to the defense of inter-state commerce; that 
is, the burden is on the defendant to show that the employe was en- 
gaged in a maritime pursuit at the time of the Injury. This the de- 
fendant failed to do at the original hearing before the Referee. Ac- 
cordingly, the claimants' case was made out and the award in their 
favor was without error. 

The defendant now seeks to raise a defense which it should have 
raised at the original hearing. This would, in effect, allow the de- 
fendant to appeal from the award long after the time fixed for an 

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appeal has expired. Therefore, the defendant's defense cannot now 
he considered. The defendant contends, however, that the petition 
to terminate the award is proper on the ground that the legal status 
of the dependents has changed since the original award was made. 
The defendant's argument on this ground ia that, at the time the claim 
petition was filed, there was in force an amendment to the Judicial 
Code of the United States, Section 256, which saved to claimants 
the rights and remedies under the Workmen's Compensation Act of 
any State. This amendment was declared unconstitutional by the 
United States Supreme Court in the case of Stewart v. Knickerbocker 
Ice Co., and the defendant argues that this decision has changed the 
legal status of the dependants in this case. The Board fails to see 
the force of this argument. The amendment to the Judicial Code 
of the United States being unconstitutional never had an; validity 
and had no validity at the time the claimant filed the claim petition, 
and it was the duty of the defendant, at that time, to raise the ques- 
tion of maritime employment, if it believed that the employe was en- 
gaged in such employment. - 

Therefore, since the status of the dependents has not changed, 
which if the only proun 1 under Section 413 of the Workmen's Com- 
pensation Act of 1S19 on which the Board could have jurisdiction to 
terminate ihe award in tliis case, the Board is without power to ter- 
minate the award even if satisfied that the deceased employe was en- 
gaged in maritime employment at the time of his death. 

For these reasons the order of the Referee refusing to terminate 
the award is affirmed, and the appeal is dismissed. 



Durcot v. Knickerbocker Coal Co. 

Surgical operation- -He/usal to permit — When compensation will not be terminated. 

Where claimant suffered the loss of the use of bis right arm due to the fact that 
(here was a loss of substance of the right hunierous, and refuses to submit to an 
operation, his compensation will not be lenninuted when the evidence shows two 
Hi-lions unsuccessful operations of the same nature. 

Claimant represented by Charles .1. Margiotti, Punxsutawney. 
Defendant represented by H. M. Hose, Huntingdon. 

OPINION BY COMMISSIONER HOUCK,— April 12, 1921. 

The claimant was injured on April 3, 1919, and a compensation 
Bt.: cement was entered into. On April 12, 1920, the defendant filed 
a petition to terminate the agreement until the claimant would under- 
go on operation. This petition was referred to a Referee who sus- 
pended payment-? until the claimant would undergo the operation. 

This the claimant refused to do, and on October 27, 1920, the 

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claimant filed a petition to reinstate the agreement. After hearing. 
the Referee made an order reinstating the agreement, and the defend- 
ant has appealed. 

The evidence shows that the claimant, in his present condition, 
has suffered the loss of the use of his right arm due to the fact that 
there is a loss of substance of the right humerus, and the defendant 
wants the opportunity to correct this disability by having a trans- 
plant operation performed taking some bone from the claimant's leg 
and placiug it in his arm. The claimant is fifty-four years of age 
and his arm has already been operated on three times. One of these 
operations was a transplant operation which proved unsuccessful. 
The Board does not feel that it should force this claimant into an- 
other operation. Although the medical testimony is to the effect that 
the operation would probably be successful, the fact remains that 
this sort of an operation has already been performed with unsatis- 
factory results. 

For these reasons the Board is of the opinion that the Referee's 
reinstatement of the compensation agreement was proper, and the 
defendant's appeal is, accordingly, dismissed. 



Dickson r. Lehigh Valley Coal Co. 

Medical treatment — Refusal to allow — Termination of comiicnwtion. 

Where claimant Buffered a simple fracture of the lower left lejr and iffuniil (o 
submit to proper treatment offered by tin; oiniiloyrr, his rntiipi ■iisntinii will be tcrni- 
innted when the evidence shows his preseut condition ilue to such nfusnl. 

Claimant represented by Roger J. Dever, Wilkes-Barre. 
Defendant represented by 8. W. Rhoads, Wilkes-Barre. 

OPINION BY COMMISSIONER HOUCK— April 12, 1921. 

This is an appeal by the claimant from an order of the Referee 
terminating the compensation agreement. The Referee terminated 
the agreement on the ground that the claimant refused reasonable 
curgioal and medical services and that his present disability is dun 
to this refusal. 

The evidence shows quite conclusively that the claimant, who 
suffered a simple fracture of both hones of the lower left leg. four 
inches above the ankle, refused to go tn a hospital for treatment or 
to have X-ray pictures taken and repeatedly removed the splint and 
surgical dressings applied by the defendant's surgeons and applied 
in their place home remedies. The evidence shows further that if the 
claimant had submitted to proj>er treatment, he would have recovered 



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129 

by July 1, 1920, and that the removal of the splint resulted in a vic- 
ious union of the bones with some accompanying deformity. Al- 
though the claimant and his attorney were present at the hearing, 
no attempt was made in any way to contradict the testimony of the 
defendant's physicians. Under all the evidence, the Referee was 
fully justified in finding that the claimant's refusal to submit to pro- 
per surgical treatment ia the cause of his present disability. Accord- 
ingly the Referee's termination of the agrement is without error. 
The findings of fact and conclusions of law of the Referee are affirmed, 
and the appeal is dismissed. 



Auimon v. Diamond Coal & Coke Co. 

Jurisdiction — J/ Drift me employe — Accident un land. 

TLi> Workmen's Com pen Bat ion Board Iina jurisdiction over an in-i-iiji-nt to an 
Employe who worked an a watchman and clerk on a nnvigiiblc stream, and wus 
injured while in (he course of his employment crossing a street in the city of Pitts- 
Claimant represented by A. L, Petty, Pittsburgh. 
Defendant represented by W. C. Brown, Pittsburgh. 

OPINION BY COMMISSIONER HOUCK,— April 12, 1921. 

In this case the Referee has found that the claimant was employed 
as a watchman and clerk and that he lived on one of the house boats 
at the corner of the Tenth Street bridge, Pittsburgh ; that by the 
nature of his employment he was on duty all the time and subject to 
call at any time. On June fi, 1919, the claimant was on his way to 
one of the offices of the defendant company to get the weights for 
co;ii for that day, and. while he was crossing Tentli Street, an auto- 
mobile struck him, inflicting various injuries on him, which have re- 
sulted in the permanent loss of the use of his left leg. The Referee 
found that the claimant was injured while in the coarse of his em- 
ployment and awarded him compensation. From this award the 
defendant has appealed, alleging errors of fact and of law. 

After a careful review of all the evidence, in the case, the Board is 
satisfied that the Referee's findings of fact are supported by compe- 
tent proof. His findings, therefore, will not be disturbed. 

The errors of law alleged are that the findings of fact are not su- 
stained by the evidence, that the Referee erred in permitting the 
claimant's attorney to testify, and that the claimant was engaged in 
a maritime occupation. We have already disposed of the first named 
ground of appeal, and as to the testimony of the claimant's attorney, 



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130 

we know of no rule which makes an attorney incompetent to testify 
in the manner in which this attorney testified. 

The ground of appeal most strenuously urged is that the claimant, 
at the time of the accident, was eugaged in maritime occupation. If 
he were, the Compensation Law would not apply. The testimony 
indicates, and the Referee has so found, that the defendant was en- 
gaged in shipping coal both by boat and by rail. lint, even if all the 
shipping were done by boat, the Board is of the opinion that the 
claimant's occupation at the time of the accident was not maritime. 
The general rule relating to maritime jurisdiction is that in case of 
tort jurisdiction in admiralty depends entirely upon the place where 
the tort is committed. In other words, if tort is committed on the 
high seas or on navigable waters, then the jurisdiction of admiralty 
is exclusive. 

But, if the tort is committed on land, the law of the State where the 
tort is committed applies. The claimant, in this case, was injured 
while crossing a street in ihe city of Pittsburgh, and, applying the 
stated role, the Workmen's Compensation law of Pennsylvania is 
applicable. Accordingly, the Referee did not err in awarding com- 
pensation to the claimant. 

The fimlings of fact and conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



O'Boyle v. Hudson Coal Co. 

Compensation anrreinetit — Termination »/ — Only slight dejorniity. 

A compensation agreement will be terminated when tlie employe has fully 
recovered from his injuries to head and shoulder, even though the claimant's 
shoulder is slightly deformed and his hearing slightly impaired. 

Appellee represented by Roger J. Dever, Wilkes-Barre. 

Appellant represented by E. T. Noble, and James H. Torrey, Scranton. 

OPINION BY COMMISSIONER JARRETT,— April 15, 1921. 

HEARING DE Ts'OVO AT WILKES-BARRE. 

The testimony taken before the Referee was adopted to be con- 
sidered as if taken before the Board and additional testimony was 
taken at the hearing de novo. 

FINDINGS OF FACT. 

1. The claimant is Edward O'Boyle of No. 12 Fulton Avenue, 
Wilkes-Barre. The defendant is The Hudson Coal Co., Scranton. 
The business of the defendant is the "preparing and sale of coal." 



131 

2. On April 9, 1919 the claimant, Edward OTJoyle, was in the 
employ of the defendant company as a miner at its Pine Ridge mine 
in Pennsylvania and on said date, while in the course of his employ- 
ment on the premises of the defendant, he met with an accident, to- 
nit, "he was walking out over gangway when a shot was fired and 
a piece of rock falling striking him. Left shoulder dislocated and 

•head lacerated." 

3. Compensation agreement was entered into between the parties 
iind compensation paid up to April 30, 1920 and on June 26, 1920, 
the petition before us was filed to terminate the compensation agree- 
ment on the grounds that the claimant had fully recovered from his 
injuries and was physically able to perform his regular work. 

4. The claimant's left shoulder is slightly deformed due to his 
injuries of April 19, 1919, but does not incapacitate him as contem- 
plated by the Act. 

5. That due to the injuries sustained, the hearing of the said claim- 
ant is somewhat impaired 'but not sufficient to cause either total or 
partial disability. 

6. The weekly wage of the claimant at the time of the accident 
was in excess of $20. 

7. The parties were at the time of the accident bound by the pro- 
visions of the Workmen's Compensation Act of 1015. 

CONCLUSIONS OF LAW. 

1. The parties were bound by the provisions of the Workmen's 
Compensation Act of 1015. 

2. Since we have found that, the claimant has fully recovered from 
his injuries and is able to return to his former employment, he is 
therefore not entitled to any further compensation and the compen- 
sation agreement entered into between the parties should be and is 
hereby terminated as of April 30, 1920. 



a Dy Google 



{ribbons t\ Delaware, Lackawanna & Western R. B. Co. 



All the testimony us to tlie happening of an accident being lirarsiiy, swli evidence 
is mit competent to prove an accident anil there can be no award for eomiieiin*- 



Appellee represented by Roger J. Dever, Wilkes-Barre. 
Appellant represented by Elmer D. Adair, Scranton. 

OPINION BY COMMISSIONER JARRETT,— April 19, 1921. 
HEARING I)B SOVO AT SCRANTON. 
The testimony taken before the Referee was adopted to be consid- 
ered as if taken before the Board. No testimony was taken at the 
hearing do novo. 

FINDINGS OF FACT. 

1. The claimant is Martha Gibbons, widow of Thomas Gibbons, 
deceased employe of the defendant company, on account of whose 
death she claims compensation for herself and two children, Frank 
Gibbons, born July 22, 1912 and Joseph Gibbons, born August 8, 1915. 
She and her children reside at No. 930 Oak Street, Scranton. 

2. The defendant is the Delaware, Lackawanna & Western R. R. 
Co., Scranton. 

3. On or about March 26, 1919 the said Thomas Gibbons was in the 
employ of the said defendant at its Storrs Coal Mine No. 1, Lacka- 
wanna county, as a company man ; his duties were to clean and repair 
tracks, build doors and brattice and also to substitute as a mino 
foreman. 

4. On or about the said date the claimant alleges that the said 
Thomas Gibbons returned borne from work one evening about 9 o'- 
clock and said to her, in the presence of her sister and her sister-in- 
law: "I was lucky today that I was not killed." She further testified 
in relating what he told her: "There was a fall of roof and in getting 
out of the way he stumbled and fell and hurt his leg and be rubbed 
his hand over it and that was all there was to it then." The sister 
and sister-in-law corroborated the claimant as to the statement made 
by the decedent. (Aside from this there is no evidence that the claim- 
ant met with an accident as alleged. 

5. The decedent worked until the 9th day of April. 1919, and lie 
left the mine somewhat earlier than usual on account of a sore leg. 
Two days later Dr. J. D. Lewis saw the decedent at his home and ex- 



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133 

aniined his leg and found a red spot -about the size of a half dollar. 
On the 13th day of April, 1919, Dr. M. J. Noone who was the family 
doctor, and who had been ill, took charge of the case. Upon the ad- 
rice of Dr. Noone the deceased was removed to the Mercy Hospital 
where he was operated on on the 16th day of April, 1919. The de- 
ceased died on the 18th day of April, 1919, due to acute osteomylitis 
of the right leg. 

6. The wages of the decedent at the time of the alleged accident 
were in excess of ?20 per week, 

7. The claimant was living with the said Thomas Gibbons, now 
deceased, at the time of his death and she and the said children were 
dependent upon the decedent for support, as contemplated by the 
Workmen's Compensation Act of 1915. 

8. The defendant and the decedent, at the time of the alleged ac- 
cident, to-wit, about March 26, 1919, were bound by the provisions 
of the Workmen's Compensation Act of 1915. 

There is no competent evidence that the decedent met with an ac- 
cident as alleged. All the testimony tending to prove an accident 
being hearsay. 

CONCLUSIONS OF LAW. 

1. The defendant and the decedent were at the time of the alleged 
accident, to-wit, about Mar,ch 26, bound by the provisions of the 
Workmen's Compensation Act of 1915. 

2. There being no competent evidence to prove an accident as 
contemplated by the Workmen's Compensation Act of 1915, all of the 
testimony as to the happening of an accident being hearsay, the claim 
ant and the children are not entitled to compensation. 

DISALLOWANCE. 

Compensation is accordingly disallowed. 



Laker v. Heppenstall Forge & Knife Co. 

Dependency— Wife Uring apart frnm huiband. 
Where the hushed find wife are Jiving "I-ort at the tine of bi» tetfa. but he is 
contributing to her support under «n order of the Court in proceeding, brought by 
her for non-s.i[i|-ort, she is entitled (o compeDBntion. 
Appellant represented by J. E. Turner. Pittsburgh. 
Appellee represented by Alfred Ctihen, Pittsburgh. 



OPINION BY COMMISSIONER JARRETT— APRIL 19, 1921. 
HEARING DE NOVO AT PITTSBURGH. 
The testimony taken before the Referee was. adopted to be con- 
sidered as if taken before the Board and additional testimony was 

taken. 

FINDINGS OF FACT. 

1. The defendant and the decedent were bound by the provisions 
of the Workmen's Compensation Act of 1015. 

2. That John X. Laker was employed by the lleppeustall Forge 
& Knife Co., at Forty-Sixth and Hatfield Streets, Pittsburgh, as a 
painter at an average weekly wage in excess of $20 per week and while 
in the course of his employment on September 11, 1919. he came in 
contact with a live wire resulting in his instant death by electroeu 
tiou. 

3. That the deceased left to survive him a widow, Clara Laker, 
to whom he was married at Wellsburg, W. Va., on May 6, 1918. 
having eloped for the purpose of marriage, and on July 17, 1918, 
a religious ceremony was performed at St. Leo's Church in Pitts- 
burgh, by Rev. C. A. Hagery. After their marriage they lived to- 
gether with the deceased's mother at 5551 McCandless Ave., Pitts- 
bu"gh. They then moved to Breaker St., where they lived until 
October, 1918. On October 24, 1918 they had a dispute about mov- 
ing and they separated and the claimant went to live with her 
mother. She afterwards brought proceedings against her husband 
for non-support iu the Court of Quarter Sessions of Allegheny 
county and an order was made on December 11. 1918. for the de- 
ceased to pay her |5 a week for her support On May 1, 1919, a 
child was born to the claimant, but died on May 3, 1919. The 
deceased made payments of $5 per week from December 11, 1918 
until March 1919. and then brought suit for divorce and stopped 
making his payments. On May 17,* 1919, the claimant met her 
husband at his cousin's place on Penn Avenue, at which time he 
apologized to her and asked her forgiveness and wanted her to come 
back and live with him. She asked liim to pay her the money due 
her in order of support and the burial expenses of the child but he 
bad no money and was out of work. On September 2, 1919, he 
wrote her a letter enclosing $15. The claimant, in June of 1919. 
secured employment with the Pittsburgh Screw & Bolt Co. at *lfl 
l>er week and was employed here until the time of her husband's 
death. We therefore find as a fact that the claimant was de- 
pendent upon her deceased husband for support at the time of his 
death within the meaning of Section 307 of the Workmen's Compen- 
sation Act of 1915. 

^Google 



185 

4. That the expense of the burial of the deceased exceeded the 
Bum of $100, no part of which has been paid by the defendant com 
pany. 

5. The claimant was married to John Karolski on June 22, 1920 
and resides at No. 6 Roanoke Street, South Side, Pittsburgh. 

0. Two claim petitions were tiled on account of the death of 
-John V. Laker, one by his mother, being Claim Petition No. 8840 
and the other by the widow, being Claim Petition No. 0303. Testi- 
mony was taken on the case of Margaret Connors, the mother and 
the case was continued to permit tiie widow to file a claim petition 
and the testimony taken in the Margaret Connors case was adopted 
as part of the testimony in the claim j>etition of the widow for com- 
pensation by agreement of parties. 

Upon the facte appearing in this claim petition, the Board arrives 
at the following conclusions of law: 

CONCLUSIONS OP LAW. 

1. That the defendant and the decedant were bound by the pro- 
visions of the Workmen's Compensation Act of 1915, 

2. That the claimant's deceased husband having died as the re- 
sult of injuries sustained in an accident while in the course of his 
employment with the defendant company and the claimant, his 
widow, being dependent upon him for support at the time of his 
death, she is entitled to recover compensation as provided in Section 
307 of the Workmen's Compensation Act of 1915. 



There is accordingly awarded to Clara X. Karolski (formerly 
Clara X. Larker), the claimant, and against The Heppenetall Forge 
& Knife Co.. compensation at the rate of 40% of $20 or $8 per week 
from September 25, 1010 to June 22, 1920, the date of her remarri- 
age, and an additional sum of $100 for burial expenses of her de- 
ceased husband. 

If the claimant has not paid the funeral expenses of her deceased 
husband, she. no doubt, will authorize the defendant to pay the 
money to the person who haw paid the funeral expenses or to whom 
they are owing. The money is; awarded for that purpose and it 
should be so applied. 



Chester v. Vesta Coal Co. 

Appeal— Must be taken within ten days. 

Where the appeal wns filed more tluiii ten diiys after tlie decisiou of the Referee, 
It will be dismissed. 



Claimant not represented. 

Defendant represented by Prank M. Painter, Pittsburgh, 

ORDER BY THE BOARD— April 22, 1921. 

Now, April 20, 1921, upon motion of the attorney for the defend 
ant, the appeal is dismissed, having been filed more than ten days 
after decision of the Referee. 



Powell v. Lindsay Chaplet & Manufacturing Co. 

Physical condition — Evidence of. 

The mere foot that the cliiimont passed the physical examination to get into tin; 
service of the United States Army in not evidence thct he has fully recovered 
from the injuries sustained hy the accident. 

In support of the petition to terminate a compensation agreement the burden is 
upon the defendant to show what the physical condition of claimant was. 

Appellee represented by John A. Poulson, Chester. 
Appellant represented by Richard A. Smith, Philadelphia. 

OPINION BY COMMISSIONER JARRETT— April 22, 1921. 

It appears from the record in this case that the claimant was 
under compensation when he- enlisted in the United States Army. 
After his enlistment the defendant filed a petition to terminate 
the compensation agreement. The Referee refused to terminate 
the agreement and the defendant has appealed. Counsel for the 
claimant contends that there is no evidence of record to determine 
the merits of the petition; that the mere fact that the claimant 
entered the service of the United States Army cannot be accepted 
as evidence of claimant's ability to earn wages outside the service. 
With this we agree. 

The mere fact that the claimant passed the physical examina- 
tion to get into the service is not evidence that he has fully re- 
covered from the injuries sustained by the accident. The burden 
was upon the defendant to Bhow what the physical condition of 
the claimant was. This it has failed to do. Even if we were to 
take nqtice of the physical requirements to get into the army ser- 
vice, the record here is conclusive that the claimant has not fully 
recovered as he must submit to an operation due to his injuries. It 
is the duty of the claimant to submit to an operation which may be 
necessary to improve his condition. We are satisfied that the 
Referee has properly taken care of tits matter in his order. The 
findings of fact, conclusion* of law and order of the Referee are 
sustained and the appeal dismissed. 



137 
Marshall v. Pennsylvania Salt Manufacturing Co. 

Death — Caused by inhalation of gas. 

When decedent while in the course of hie employment went into an acid tank 
car for the purpose of cleaning same and his death resulted from the inhalation 
of gas, claimant is entitled to compensation. 

Claimant represented by Emerson Hazlett, Pittsburgh. 
Defendant represented by Wright, Chalfant & MeCandless, Pitts- 
burgh. 

OPINION BY MACKEY,— Chairman— April 22, 1921. ' 

HEARING DE NOVO. 

A hearing de novo was granted in this case for the purpose of hear- 
ing more expert testimony to determine whether or not under the 
facts, as found by the Referee, death resulted from acute nephritis 
excited or originated because of sulphuric acid poisoning or the 
inhalation of some other dangerous and deleterious gas by the 
deceased, when cleaning the tank cars of the defendant company. 
The evidence subsequently taken at the hearing de novo did not 
develop anything new in regard to the main and material facta of the 
case. Therefore, before entering into a discussion as to the cause of 
death, we will determine the basic facts which are as follows: — 

1. That no notice was served by Charles McKinstry Marshall upon 
the Pennsylvania Salt Manufacturing Co., or by said company 
upon him rejecting Article III of the Workmen's Compensation Act 
of 1015, and your Referee has made no personal investigation of the 
case other than the facts appearing in the claim petition, answer 
filed and papers on Sle in the case. 

2. That Charles McKinstry Marshall was employed by the Penn- 
sylvania Salt Manufacturing Co., at its place of business at Natrona, 
as a foreman in the warehouse and shipping department at an 
average weekly wage in excess of |20 per week. 

3: That on January 9, 1920, while in the course of his employment 
with the defendant company he went into an acid tank car for the 
purpose of cleaning the tank. The tank had previously contained 
sulphuric acid and there was a manhole at the top of it about 18 
inches wide by which he entered the tank. It is customary for the 
men who cleaned these tanks to wear gas masks and Mr. Marshall, 
when he first went in the tank on this day, wore a mask but after- 
wards took it off complaining that it was too hot and continued to 
work in the tank. The tanks contained a considerable amount oC 
sediment which accumulates at the bottom and water was first run 
into the tank and afterwards syphoned out and then the workmen 



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138 

go in and clean up the sediment, and that was the work that Marshall 
was doing on January 9, 1920. lAfter having cleaned the tank, about 
noon hour, he complained of being sick and later about 2 o'clock 
became so sick that he had to go to his home. When he arrived 
home he was quite sick and vomitted and went to bed. On the fol- 
lowing morning, January 10, 1920, he began to turn a sore of a yellow 
color and his tongue was thick and parched and dry. Dr. J. A. 
Weamer was called to attend him on the evening of January 9, 1920. 
At this time he was very depressed and vomiting. The vomiting was 
of a dark nature and watery. The first symptom that developed was 
an acute nephritis. The doctor gave him digitalis and some calomel. 
He also drew off some urine but could only get about a dram of very 
d&rk fluid. It had the color and odor of sulphuric acid. Jaundice 
developed about the second or third day and Dr. G. L. Baumgarner, 
the company's physician was called in consultation. Dr. Baum 
garner suggested the use of digitalis leaves to secure action of the 
kidneys. Any medicine given the patient was vomited. On the 
sixth day he developed a high grade of bronchitis which continued 
until his death which occurred on January 20, 1920, his death being 
due to an acute nephritis, a disease and infection that naturally 
resulted from the sulphuric acid poisoning while cleaning the tank 
cars of the defendant company. 

4. The deceased left to survive him a widow, the claimant, Sara 
A. Marshall, with whom he resided at the time of his death and who 
was dependent upon him for support and one son, John McKinstry 
Marshall, born May 28, 1912. 

5. That the burial expenses of the deceased exceeded the sum of 
JS100, no. part of which has been paid by the defendant company. 

DISCUSSION 

1. The proposition that the death of Charles M. Marshall was 
caused by the inhalation of fumes of BUlphuric acid is absolutely 
untenable because fumes are not evolved from sulphuric acid such 
as was contained in the tank car except at temperatures consider- 
ably above the boiling point of water (212°F.) and there is no 
evidence that such a temperature existed in the tank, and if such 
temperature existed in the tank it would be impossible for a man 
to enter it. 

2. Fumes of sulphuric acid which may be produced at a high tem- 
perature, are so irritating to the respiratory passages that a human 
being breathing air containing beyond a certain percentage of the 
fumes would be unable to remain in such an atmosphere. What 
little of the fumes that might be absorbed into the blood stream 
through the lungs, or swallowed by the saliva would at once be 



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139 

converted in the body into sodium sulphate a neutral salt, which 
would be excreted in the urine without irritating the kidneys. No 
odor other than the ordinary urinary odor would he observable in 
the urine. 

3. The white sludge at the bottom of the tank consisted of sulph- 
uric acid in which was suspended particles of ferrous sulphate 
(sulphate of iron — green vitrol — copperas) which had resulted from 
the action of the sulphuric acid upon the irou of the tank and from 
which *hc water of crystallization had been removed by the strong 
affinity of the sulphuric acid for that liquid thus leaving the ferrous 
sulphate white instead of light green. In addition, if the sulphuric 
acid had been manufactured by the lead chamber process, there might 
have been particles of white sulphate of lead suspended in the sludge 
with the ferrous sulphate. These compound — ferrous sulphate and 
lead sulphate — are not volatile and, therefore, could not have been 
present in the air of the tank. 

4. The conditions in the tank were favorable for the production 
of a gas known as arsine which is extraordinarily poisonous, very 
much more poisonous, "based upon the quantity of metallic arsenic 
it contains in combination, than any other known compound of 
metallic arsenic. The conditions which favored the production of 
arsine in the tank were 

(a) Iron of the steel tank. 

(b) Sulphuric acid stated in the testimony as containing 
between three ten thousandths of one per centum of 
arsenic. 

(c) Water which was conducted into the tank for the pur- 
pose of washing it. 

5. In' what manner was the arsine produced? 

The tank, according to the testimony, was estimated to have contain- 
ed approximately 4">00 .pounds of sludge. In order to remove this 
sludge water was conducted by means of a hose into the tank in the 
afternoon until the tank was filled, and when filled, was permitted 
to flow through the hose into the tank and overflow at the opening at 
the top of the tank for a period of about one and a half to two 
hours. Then during the night of the same day the water was removed 
from the tank by means of a syphon and in the morning of the next 
day Marshall entered the tank to remove the sludge. 

The action of sulphuric acid of the concentration of that which 
had been in the tank upon iron (steel) is very slow. The sulphuric 
acid in Ihe sludge was of this concentration. However, on diluting 
such sulphuric acid with water the action npon the iron is very much 



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140 

aeelerated. In this action the sulphuric acid is decomposed with 
the formation of ferrous sulphate and the evolution of a gas called 
hydrogen. The hydrogen as it is evolved in the reaction is said to 
he in the nascent state and in this condition will immediately enter 
into combination with arsenic in solution to form gaseous arsine. 
an exceedingly poisonous compound. This then is what occurred 
in the tank — namely, arsine was produced. As long as the sludge 
remained of the concentration, testified to the action of the sulphuric 
acid upon the iron of the tank was slow, but when the acid was dilut- 
ed with water the action of the acid upon the iron was accelerated 
with, in both cases, the production of nascent hydrogen which in 
the presence of the arsenic contained in the sulphuric acid would 
produce arsine. 

However, the arsine that may have been produced by the action of 
the concentrated acid in the sludge upon the iron of the tank and 
which would be disseminated in the air of the tank, was displaced by 
the water which was used in filling the tank. The water thus used 
diluted to a considerable extent the sludge acid in the tank and in 
consequence accelerated the action of the acid upon the iron with the 
production of a larger quantity of arsine per unit of time than when 
the acid was undiluted with water. The act of introducing water 
by means of a hose after the tank had been filled with water and 
thus causing an overflow could not have had any particular effect in 
further diluting the contents of the tank, because water introduced 
in that manner into a filled tank 28 feet long and 5 feet high would 
not cause a circulation of water throughout the entire contents of 
the tank but only in the immediate locality into which it is introduc- 
ed. 

At this time the water was removed by means of a syphon. The 
water now in the tank contained sulphuric acid, derived from the 
sludge, which was contaminated with arsenic. The upper layers ol 
water were weaker in content of acid than the lower layers, so that 
descending from the surface to the bottom the water would progres- 
sively contain larger quantities of acid. As the water now contain- 
ing sulphuric acid contaminated with arsenic, was withdrawn from 
the tank during the night by means of the syphon, ample opportunity 
was afforded during the period of withdrawal for this diluted acid 
its dilution accelerating its action, to act upon the iron of the tank 
with the production of hydrogen which in the nascent state wonld 
combine with the arsenic in the sulphuric acid to form the gas called 
arsine. When practically all of the water had been withdrawn in the 
operation of syphoning, there still remained some sludge which con- 
tained diluted acid and for the removal of which Marshall entered 
the tank. At what time during the night the removal of the water 
by syphoning was completed is not stated in the testimony, but at 



141 

any rate if all or the acid water removable by the process of 
syphoning had been remord some diluted arsenical sulpher acid 
would still remain in the sludge and this acid would continue to act 
upon the iron with the production of arsine. The larger production 
of arsine began when water was introduced into the tank and the 
accumulation of the gas began when the process of syphoning the 
water from the tank began. As the water was being removed from 
tfiTe tank there was an inward flow of air from outside to occupy the 
space from which the water was removed, consequently there was 
practically no escape" of arsine through the two appertures in the 
tank, and, as after the removal of the water there were practically 
no air currents in the tank the arsine remained mixed with air un- 
disturbed in the tank. Ursine gas has a specific gravity of 27 (air — 
1.0) thus being much over double as heavy as air, it would have a 
tendency to remain in the tank particularly in the lower layers of 
air in the tank. 

6. It should be borne in mind that the principal symptoms pro 
duced by poisoning with arsine are characteristic of it and do not 
correspond with the symptoms of poisoning by any other arsenical 
compound. 

A quantity of arsine amounting in weight to 0.0000104 grain, 
equivalent to 0.00Q160 grain, is sufficient to produce serious symptoms 
in an adult. 

liven assuming that the quantity of arsine in the air breathed by a 
man may be infinitesimal he is taking this small quantity into his 
lnngs at each inspiration and absorption of the arsine into the blood 
occurs with the resulting destruction of red blood corpuscles upon 
which the continuance of his life depends. In short a dose of the 
poison is taken into his lungs at each inspiration and a time will 
arrive when the accumulated results of the action upon the red 
blood corpuscles will be such as to cause death. 

7. The symptoms observed by the attending physicians of Marshall 
are those typical of poisoning by arsine. The looseness of the bowels 
testified to by his wife, however, is not characteristic of arsine poison- 
ing, but this purgation may be attributed to the action of the calomel 
administered by the physicians. Arsine's principle action is upon 
the red blood corpuscles which are destroyed by the gas and the 
products of the destruction being foreign substances in the blood are 
removed by the action of the liver. The liver converts the red color 
ing matter of the corpuscles into bile pigments which arc excreted 
by the bile and the urine. When these pigments are produced in ex 
cess of the quantity which may be removed by means of the bile and 
the urine the pigment* accumulated in the body tissues and produce 
the yellow appearance of the skin termed jaundice. This appear- 
ance was observed in Marshall's case. 



142 

The great excess of bile pigments produced in arsine poisoning 
overtax the kidneys and in consequence there is produced an inflam- 
mation of the kidney tissue termed nephritis and the urine wilt in 
consequence contain albumin. The physicians of Marshall observed 
both of these conditions. Also in consequence of the nephritis the 
urine passed becomes scanty in volume, concentrated in soluble 
urinary constituents and highly colored, reddish brown. This was 
observed by the physicians in Marshall's case. 

Vomiting is also one of the symptoms and this was also observed. 
General ill-feeling, -weakness observed in this' case, are symptoms in 
arsine poisoning. 

The period of time in which death usually occurs in acute poisoning 
by arsine — eight to fourteen days — in accord with the period of the 
beginning of the illness and the death of Marshall. 

8. The death of Charles M. Marshall was caused by the inhalation 
of an arsenical gas known as arsine. 

CONCLUSIONS OF LAW. 

1. We hold that Article III of the Workmen's Compensation Act 
of 1915 aplies to the contract of employment between Charles M. 
Marshall and the Pennsylvania Salt Manufacturing Co. 

2. That the claimant's deceased husband, having died of disease 
or infection that naturally resulted from inhaling the poisonous gas 
as hereinbefore determined, while in the course of his employment 
with the defendant company, and the claimant being dependent 
upon the deceased husband for support at the time of his death, she 
is entitled to recover compensation as provided in Section 307 of the 
Workmen's Compensation Act of 1915 as amended by the Act of 
1919, the sum of $100 for burial expenses, and the cost of the same 
as filed with said Compensation Bureau. 

(The award follows) 



Ziais v. Mohawk Mining Co. 

Practice mid procedure — Appeal nunc pro tunc — if wit net out nature of the evidence. 

Where tlie petition reqnoiiMng nn appeal nunc pro tunc alleges an the reason 
after (Uncovered evidence which is material to Hie issue, it must set out the nature, 
of Hie evidence, otherwise the petition will lie dismissed. 

Claimant represented by E. O. Golden, Kittanning. 
Defendant represented by J, D. Darragh, Pittsburgh. 

OPINION BY COMMISSIONER JARRETT— April 2fi, 1921 

The claimant filed the petition before us, asking for a hearing 
df novo. No doubt what he intended was to ask for an appeal 
nunc pro tunc, but even if the petition was for an appeal nunc 



143 

pro tune, we would have to dismiss it as lie gives as his reasons 
after-discovered evidence which is material to the issue but does 
not set out the nature of the evidence, which is absolutely necessary 
when an appeal is asked for on these grounds, 
The petition is therefore dismissed. 



Philbin v. Home Life Insurance Co. 

Burden of proof — Where it is alleged that hernia is due to accident. 
Where it is alleged that a hernia was occasioned while decedent was in the 
course of hix employment, the burden is on the claimant. 

Claimant represented by M. J. Martin, Scranton. 
Defendant represented by Robert J. Murray, Scranton. 

OPINION BY COMMISSIONER HOUCK— April 26, 1921. 

This is an appeal by the claimant from the Referee's disallowance 
of compensation. The claimant's deceased husband was employed 
by the defendant as a district superintendent. As such it was part 
of his duty to canvass his district to interview policy holders and 
prospective risks. The claimant contends that while he was engaged 
in this work on September 13, 1919, he strained himself in some 
manner and that this strain resulted in a hernia, necessitating a 
surgical operation which resulted in bis death on January 4, 1920. 
The Referee disallowed compensation on the ground that the claimant 
failed to prove that her deceased husband sustained any injury 
while in the course of his employment. This question is a pure 
question of fact. 

The claimant testified, over the defendant's objection, that her 
husband told, her that while canvassing with an inspector of the 
defendant company, named Gallagher, he slipped and felt a severe 
pain in his side, and that it was necessary for him to sit down and 
rest. This evidence is purely hearsay and not sufficient to sustain 
an award. 

tlallagher, the inspector, also testified. He said that he was not 
with the claimant's deceased husband on September 13 but was 
with him on one of the days of that week prior to September 13. 
He said that he knew nothing of any accident to the decedent but that 
the decedent complained of being "all in" and that it was necessary 
for him to rest for a while. 

Br. Patrick McDonnell also testified on behalf of the claimant. 
He was called to treat the decedent early in the morning of Sep 
t em her 14, 1919, and he found him suffering from an old hernia. 
The doctor said that the decedent said nothing to him about having 
slipped or injured himself. 



144 

This is practically the extent of the claimant's proof and there 
is no competent evidence whatever showing the happening of an 
accident while in the course of employment. The medical testimony 
shows clearly that the hernia was of long standing, and there is noth- 
ing to show what caused the condition to become acute on September 
13. No report of any accident was made by the decedent, although he 
returned to work on September 26 and continued to work until 
December 2, 1919. At that time it became necessary to perform 
a surgical operation on the deceased. The decedent did not make 
any complaint of any accident to any of his fellow employes, to any 
of the attending physicians or to any of the nurses, and the claimant's 
testimony that he complained to her of having slipped stands alone. 
It is purely hearsay, unsupported by any of the surrounding circum- 
stances of the case and not sufficient to warrant an award. If the 
decedent had slipped and injured himself while canvassing with 
Gallagher, it is impossible to believe that Gallagher would not have 
known something about it and that, the decedent would not have 
said something to Gallagher. Instead of this, all that the decedent 
said was that he was "all in". From a careful review of all the 
evidence in the case, the Board is convinced that the claimant has 
failed to prove the happening of any accident while the decedent was 
in the course of his employment. Therefore, the Referee did not 
err in disallowing the claim. 

The findings of fact and conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



Lavinski p. Delaware, Lackawanna & Western R. R. Co. 

Injury — Sustained while disolej/ino order*. 

Where claimant whs injured while disobeying orders, such disobedience of orders 
was nothing more than negligence on his pnrt. nn<! negligence on the l>ort of an 
cm|ilo.ve is no bar to corri|ipnFiiitioti. 

Claimant represented by Roger J. Dever, Wilkes-Barre, 
Defendant represented by D. R. Reese, Scranton. 

OPINION BY COMMISSIONER HOTJCK— April 26. 1921. 

The Referee found in this case that the claimant was employed 
by the defendant as a door tender and that while riding on a motor 
in the defendant's mine for the purpose of tending to one of the doors 
of which he had charge, his foot caught between a rail and the motor 
and smashed two of his toes, resulting in total disability up to June 
11, 1920. The Referee accordingly awarded compensation and the 

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defendant lias appealed. The defendant's main contention is that 
there is no evidence to warrant the findings of the Beferee. 

The evidence shows very clearly that the claimant was employed as 
it door tender in the defendant's mine and that he had charge of 
about six doors. It was his duty to open these doors to allow the 
motor and the cars attached to it to pass through and then to 
close the door in order that the air currents in the mine would not 
be interrupted. These six doors were situated at a considerable 
distance from each other. One of the defendant's section foremen 
testified that the distance between the two farthest doors is 1,43d 
feet. The evidence also shows that the claimant, after opening and 
closing one door, customarily rode on the motor to the next door 
which was to be opened. It was while riding the motor in this fash- 
ion and for this purpose that he met with the accident. The evidence 
also shows, and it is admitted by the claimant, that he was directed, 
on several occasions, by his superiors not to ride on the motor. He 
was to learn from the motorman what door was to be opened next 
and to proceed to that door on foot. From all the evidence in the 
case it is very apparent that the claimant was in the course of his 
employment when he was injured. He was proceeding with the 
motor to the next door which it was his duty to open. 

The case then involves the single proposition, whether the claim- 
ant's right to compensation is defeated by reason of the fact that 
be was disobeying orders at the time he was injured. The Board 
is of the opinion that this does not bar the claimant. His diso- 
l»edience of the order not to ride on the motor was nothing more 
than negligence on his part, and negligence on the part of the employe 
is no bar to compensation. Gnrski v. Susquehanna Coal Co., 262 
Pa., 1. Conceding, therefore, that the claimant was performing 
his duties in a negligent manner and contrary to express instructions, 
he nevertheless was injured while in the course of his employment 
and is entitled to compensation. The findings of the Beferee are 
supported by the evidence and his conclusions based thereon are 
without error. 

The findings of fact and conclusions of law of the Referee are 
affirmed and the appeal is dismissed. 



Snyder v. Dravo Contracting Co. 

Sintnct* — Not connected tcith employment. 

Where the evidence does not show any connection between the exposure of the 
employe to inclement went'ier find the pneumonia from which he suffered, there 
can be no award of compensation. 



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Claimant represented by F. K. Willmann, Pittsburgh. 
Defendant represented by Bruce Harrison, Pittsburgh. 

OPINION BY COMMISSIONER HOUCK— April 26, 1921. 

This is an appeal from a disallowance of compensation by the 
Referee. The claimant was first employed in the fall of 1918 as a 
helper to the electrician and later did work of a clerical and mess- 
enger nature. About June 1, 1920, work became slack and the 
claimant was given the choice of working in the shop or in the 
yards. At this time he was seventeen years old, weighed 120 pounds 
and was not very robust. He chose to work in the yards. His 
work consisted of piling up steel. With the help of three or four 
other men he piled up steel varying in weight from 74 to 350 pounds. 
He was doing this sort of work on June 8 and on that day it 
rained from about 7.30 A. M. until 10 A. M. The claimant worked 
in the rain and wore a slicker and rubber boots furnished by the 
defendant, but did not wear a rubber hat which was also furnished. 
Some of the- rain got under the collar of the slicker and wet the clai- 
mant's back. He worked after this on June 9, 19, 11 and 12. On 
June 10 he was transferred to the shops and he complained on June 
10 of having a pain in his chest and back. He quit work on June 12 
and on June 15 summoned a doctor. On June 27 he was removed to 
a hospital where it was found that he was suffering from pneumonia. 

The Referee disallowed the .claim on the ground that the claimant 
failed to prove an accident while in the course of employment, and, 
after a careful review of all the evidence in the case, the Board 
if of the opinion that the Referee did not err. The claimant was 
unable to trace his condition to any specific strain and we agree 
with the Referee that the pains felt by the claimant were muscle 
pains due to work to which he was not accustomed. Nor docs the 
evidence show any connection between the exposure to inclement 
weather and the pneumonia. 

The findings of fact and conclusions of law of the Referee are 
affirmed and the appeal is dismissed. 



Lubanski v. Delaware, Lackawanna & Western R. R. Co. 



Where by rwson of the change of status of the dependents, they become k*q- 
resident aliens, they are entitled to receive as compensation two-thirds of the amount 
to which they were entitled to as resident aliens. 



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Claimant represented by John B. Gallagher, Scranton. 
Defendant represented by D. IE, Reese, Scranton 

OPINION BY COMMISSIONER JARRETT— April 26, 1921. 

The agreed fact; and the agreement of compensation upon which 
thia matter is submitted shown that an agreement is on file providing 
for the payment of compensation by the D. L. & W. R. IJ, Co., de- 
fendant, to Frances Lubanski, widow, for herself and two minor 
children, Rose Lubanski and Helen Lubanski, from April 28, 1018 
to November 24, 1922, 238—5/7 weeks at 50% of $20 or $10 per week, 
and from November 24, 1922 to January 25, 1924, the end of the 
300 week period, 61 — 2/7 weeks, 45% of $20 or $9 per week and there- 
after to the guardian of Helen Lubanski, 15% of £20 or $3 per week 
until December 4, 1930, when Helen Lubanski arrives at the age of 
16 years. 

That on November 17, 1920 commutation was granted out of the 
remainder of the first 300 weeks in an amount sufficient to provide 
for the transportation and expenses of the return of Frances Lubanski 
and her children to her native country, Poland. For this purpose 
there was commuted the sum of $611.19. The said amount repre- 
sented the value at the time of commutation of $4 per week for a 
period of 165 weeks, leaving compensation still due the widow 
03 — 5/7 weeks at $6 per week and thereafter 61—2/7 weeks at $5 per 
week. 

That the said Frances Lubanski and the said children, on the 8th 
day of February, 1921, became residents of Poland and thus became 
non-resident aliens. 

Upon these facts the Board is asked to determine the rate or rates 
of compensation due the widow and the children from the Eighth 
day of February, 1921. 

Section 310 of the Act is in part as follows: 

"Compensation under this article to alien depend- 
ent widows and children not residents of the United 
States Bhall be two-thirds of the amount provided in 
each case for residents." 

and Section 413 of the A,ct provides that agreements or awards are 
to be modified whenever there is a change of status. 

It is plain from the foregoing that the widow and children becom- 
ing non-resident aliens, have changed their status and are therefore 
only entitled to two-thirds of the compensation to which they were 
entitled as resident aliens. 

The question then is: What should be the rate or rates of future 
compensation as affected by the commutation? Should the weekly 
amount which is to reimburse the defendant for the advance of the 

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148 

commutation be aubtrated from the original rate and two-thirds of 
the balance be the compensation, or should the weekly amount 
which is to reimburse the defendant for the advance of the commut- 
ation be subtracted from two-thirds of the original rate and the 
remainder be the compensation? 

Section 316 of the Workmen's Compensation Act is in part as 
follows : 

"The compensation contemplated by this article may 
at any time he commuted by the hoard at its then 
value * • • » 

Under this Section the Board undoubtedly has the power to com- 
mute any part or all of the compensation due under an agreement 
or an award. If the Board commutes all of the compensation, the 
employer cannot recover any part of the amount commuted if there 
be a change of status during the period compensation was to be paid. 
The same rule applies if the Board commutes the amount from the 
whole period immediately due or if it commutes the amount from 
the end of the period. It follows in our judgment that the same 
applies if the amount commuted is to be deducted over a period 
of weeks as in this case. 

The amount commuted was commuted at its then value. Its then 
value was on a basis of $10 per week until November 24, 1922 and 
$9 per week thereafter until January 25, 1924. That value remains 
the same during the period of reimbursement. 

The Board therefore holds that by reason of the changes of status 
of the dependents, they having become non-resident aliens, they are 
entitled to rceive as compensation two-thirds of the amount to which 
they were entitled as resident aliens, to-wit, two-thirds of the differ- 
ence between $10 per week and $4 per week, the amount withheld 
account of the commutation, i. v.. two-thirds of $6 per week or $4 
per week from February 8, 1921 to November 24, 1922, and two-thirds 
of the difference between $9 per week and $4 per week, the amount 
withheld account of the commutation, i. e., two-thirds of $5 or $3.33 
per week from November 24, 1922 until January 25, 1924, and then 
to the guardian of Helen Lnhanski, two-thirds of $3 per week or 
$2 per week from January 25, 1924 to December 4, 1930. 



Gtffert v. State Workmen's Insurance Fund. 

Evidence — Sufficient to support claim. 

Where the Board is unable to escape the conclusion that the accident either 
caused the claimant's present condition or aggravated a pre- existing condition 
which has result**] in disability, compensation will be awarded. 

- HlglC 



Claimant represented by Acheson & Crumrine, Washington, Pa. 
Defendant represented by Samuel I. Spyker, Huntingdon. 

OPINION BY COMMISSIONER HOUCK— April 29, 1921. 
HEARING DF. NOVO AT PITTSBURGH 

The claimant was injured on uVugnst 6, 1919. Fe was working in 
the defendant's mine and was caught in a fall of coal which covered 
up to the neck. A compensation agreement was entered into and on 
July 23, 1920, the defendant filed a petition to terminate the agree- 
ment ou the ground that disability due to the injury ceased. After 
hearing, the Referee made an order terminating the agreement as of 
July 13, 1920. Although the Referee believed that the claimant is 
still totally disabled, he terminated the agreement on the ground 
that his present disability is not due to the accident, but is due to 
some systemic disease. The Board granted a hearing de novo and 
additional testimony was taken. 

Taking into consideration the fact that the claimant was apparent- 
ly in good health and a steady worker prior to the accident and that 
since the accident he has been totally disabled, together with the 
severity of the injury received, the Board is of the opinion that the 
agreement in this case should not be terminated. The disability of 
the claimant at present is due largely to a heart and lung condition, 
and Dr. R. J. Ttehn testified that the claimant's present disability 
was at least aggravated if not caused by his injury. 

The rock which fell on the claimant was about four feet wide and 
five feet long, and fell a distance of six feet. It covered the claim- 
ant's chest and he was pinned under it for about twenty minutes, 
and it took four men. using a post aa a lever, five minntes to release 
the claimant from the rock. The Board is unable to escape the con- 
clusion that this accident either caused the claimant's present con- 
dition or aggravated a pre-existing condition which has resulted in 
disability. In either case the claimant is entitled to compensation. 

Prom nil the evidence in the case the Board makes the following 
findings of fact: 

FINDINGS OP FACT 

1. That the claimant. Joseph A. Giffert, was employed by the de- 
fendant company as a laborer in Oolliery No. 2. of the defendant's 
mine at Ellsworth, at an average weekly wage in excess of ?20 per 
week, and while in the course of bis employment on August fi 1919, he 
sustained injuries by a rock, about four feet wide and five feet long, 
falling on him from a distance of six feet and covering his entire 
body from his feet to his neck. 

2. That as a result of this accidental injury the claimant sustained 
a comminuted colles fracture of the right wrist, a fracture of the, 

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150 

2nd, 3rd, 4th and 5th distal ends of the metatarsal bones of the right 
foot and injuries to the chest, which have resulted in an involvement 
of the lungs. , 

3. That the injuries to the foot and the wrist have practically 
healed and on April 12, 1!>20, he returned to the hospital and was 
operated on for chronic appendicitis, from which he has recovered. 
That the claimant, due to an involvement of the lungs following the 
injury suffered on August 6, 1019, is still totally disabled. 

4. That the claimant's present total disability is due to an injury 
suffered while in the course of his employment on August 6, 191!). 

From the foregoing findings of fact the Board draws the following 
conclusions of law: 

CONCLUSIONS OF LAW 

1. That since the claimant is still totally disabled due to an injury 
received while in the course of his employment, he is still entitled to 
compensation under the Workmen's Compensation Act of 1915. 

2. The defendant's petition to terminate Compensation Agreement 
No. 803920 is accordingly dismissed, compensation to be paid under 
said agreement as long as the claimant's disability remains unchanged 
within the limits of the Workmen's Compensation Act. 



Hahn v. Lehigh Valley R. E. Co. 

Interstate commerce — Work closely related to. 

(lie work being done by the employe was so closely related to iuter-ntote 
as to be part of it, no compensation win be allowed. 

Claimant represented by Harry A. Hillyer, Easton. 
Defendant represented by W. F. Gleason, New York, N. Y. 

OPINION BY COMMISSIONER HOI ICK— April 29, 1921. 

The claimant's deceased husband was a police officer in the em- 
ploy of the defendant company. His duties were to inspect seals on 
cars, place new seals where the original ones were destroyed, and to 
do general police duty about the premises of the defendant company. 
His headquarters were at Easton, and be was on duty from the time 
he reported at the headquarters in the evening until he reported off 
the next morning. On the evening of March 30, 1920, the decedent 
was directed In a letter from his superior, Lieutenant of Police Frank 
(larbarino, to get the seal record of a certain car which carried on 
intrastate shipment. The decedent, with a fellow officer, went to the 
South Bethlehem yards of the defendant company on the night of 



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March 30, 1920. as was their custom. The decedent obtained the seal 
record of the intrastate car, which he was directed to got, and he 
also inspected the seals of an aiitomohile special train in the South 
Bethlehem yards, which train, admittedly, contained several cars 
carrying inter state shipments. He went to the office of the assistant 
yard master at about 4:45 A.M., obtained a certain record and left 
the office. While proceeding across the tracks of the defendant com- 
pany he was struck by a shifting engine and sustained injuries which 
resulted in his death on the same day. 

The Referee, among others, made the following findings of fact: 

"(8) That the decedent went to the office of the assistant 
yard master at about 2 A.M., and got from him the seal 
record of Erie car No. 90869, and the name of the con- 
ductor who took it with his train to Wilkes-Barre. He 
then left the office. He returned again about 4:45 A.M., 
to get from the yard master the destination of the three 
cars of the automobile special that he had placed new 
seals on. This information was given him by the assis- 
tant yard master. He wrote it on a piece of paper and 
placed it in his pocket. He next called his fellow officer 
on the'phone and talked with him for some minutes. 
He loitered about the office for a brief time and then left. 
Outside this office, he started across the tracks of the 
defendant corporation and was struck by a shifting en- 
gine and very severely injured. He was taken to St. 
Luke's Hospital, Bethlehem, where he died the same 
day. The time of the accident was about 5:07 or 5:10 
A.M. 
{10) That at the time the decedent was fatally injured he 
was engaged in work so closely related to interstate 
commerce as to be a part of it," 
The Referee accordingly disallowed compensation and from this dis- 
allowance the claimant has appealed, contending that the Referee's 
findings are not supported by the evidence. 

The Referee's eighth finding of fact, quoted above, is based on the 
evidence of the assistant yard master who furnished the reports to 
the decedent. If the Referee believed the testimony of the assistant 
yard master, his finding would follow as a matter of course. The 
Referee had the witnesses before him and is the best judge of their 
credibility, and since his findings are supported by the evidence, the 
Board is not disposed to interfere with them. Having found that the 
decedent was in the act of obtaining a record of an inter-state ship- 
ment at the time of the accident, the Referee had no other course 
hut to find that the decedent was engaged in inter-state commerce, 
" or at least, that the work which he was doing was so closely related 



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152 

to inter-state commerce as to be a part of it. Consequently, the 
Board is without jurisdiction in the case. We can find no error in 
the Referee's disposition of the claim. His findings are supported 
by the evidence and bis conclusions of law follow logically from his 
findings of fact. 

The findings of fact and conclusions of law of the Referee are, 
therefore affirmed, and the appeal is dinrissed. 



-Watson v. Lehigh Coal & Navigation Co. 

riifiercuJar — Resultant effect of accident. 

Where the tubercular peritonitis of which employe died ia the resultnnt effect 
of an injury sustained while in the course of his employment, his dependents sire 
entitled to compensntion. 

Claimant represented by Roger J. Dever, Wilkes-Barre. 
Defendant represented by Geo. M. Roads, Pottsville, 

OPINION HY COMMISSIONER HOUCK— -April 29, 1921. 
HEARING DE NOVO AT POTTSVILLE 
The testimony taken before the Referee was adopted to be con- 
sidered as if taken before the Board and additional testimony was 
taken. 

HEARING DE NOVO AT POTTSVILLE. 

1. The claimant is Mrs. .lohn (Mary) Watson, who claims compen- 
sation from the defendant for herself and children, to-wit, Dorothy 
Watson born March t>, lOOfi; Mary Watson born May 14, 1908, and 
Benjamin Watson horn August J4, 1911, account of the death of her 
husband, -lohn Watson. 

2. The defendant is the Lehigh Coal & Navigation Co. of Lansford, 
and is engaged in the mining of coal, and operates what is known a? 
the No. 1 Nesquehoning tunnel, Carbon county. 

3. The claimant and her children reside at Xesquehoning, and 
and were at the time of the death of the said John Watson, living 
with him and were being maintained and supported by him, as con- 
templated by the Workmen's Compensation Act of 1915. 

4. On October 17, 1916 at 3 P.M., while the claimant was in the 
course of bis employment, being actually engaged in the furtherance 
of the business of the defendant as a miner, on the premises of the 
defendant, to-wit, at its No. 1 Nesqueboning tunnel, he met with an 
accident, which happened as follows: "While timbering he stepped on 



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153 

ii plank- and twisted his ankle and resulted in tlie sprain of the left 
, ankle." 

5. The said John Watson and the defendant company entered into 
a compensation agreement for compensation due as a result of the 
said accident and was paid compensation up until May 19, 1019. ag- 
gregating $921,70. This compensation was paid him for disability 
resulting from the injury sustained by the accident. 

6. That as a result of the said injury he was treated at his resi- 
dence by Br. Behler until January 18, 1917 when the ankle became 
infected and he was taken to the State Hospital at Coaldale, Carbon 
county; there it was learned that osteomyelitis had set in and an 
operation to relieve the condition was performed on January 30, 1917. 
The decedent was confined to his bed in the hospital until March 29, 
following this operation. On (April 6, 1917 the decendent was o- 
bliged to take to his bed again owing to the ankle condition and a 
second operation was performed. A third operation was done one 
month later. He left the hospital and went to his home on June 14, 
1917. His ankle grew slowly better until some time in November, 
1918 when redness appeared and a "hole opened in it." Iodine was 
applied and the hole closed and the inflamation disappeared. How- 
ever, the deceased suffered pain in the injured ankle and affected 
parts; was unable to use his foot to any extent and did not work, 
used cnitches, and was under compensation until the time of his 
death, which occurred May 19, 1919. 

7. That a post mortem examination was made of the dead body 
the day following his death, and it revealed a miliary tubercular con- 
dition of the stomach mesentery, the small and the large intestines, 
the mesenteric glands, and the omentum. One end of the stomach 
was thickened and the other end showed slight enlargment. The 
pyloric end of the stomack was adhered to the left lobe of the liver. 
The cardiac end of the stomach was nodular which suggested begin- 
ning malignancy. The right kidney showed slight degeneration. The 
splean revealed roughening of the capsule and some cloudy swelling. 
There were two pus cavities in one lung. The left ankle was fixed 
and one-third larger than its normal size in the region of internal 
maleolus. It showed evidence of injury to cutaneous structure in 
this area. There was considerable callous around the ankle, especial- 
ly the interior portion. In the internal part of the tibia there was a 
purulent pus cavity of about two to three inches in length. There 
had been a past involvement of eight inches to this part of the tibia. 

8. The defendant had been tubercular for a period of fifteen tr> 
, twenty years before his death ; nevertheless he appeared to be in fair- 
ly good health. 

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154 

9. The injury sustained by the said John Watson by this accident 
was violence to the physical structure of the body and the osteomy- 
elitis which developed was, under the circumstances, a natural result 
and the condition brought on due to the accident; that is, the ankle 
condition and the osteomyelitis following so lowered the vital resist- 
ance of the said John Watson that a tubercular condition which was 
in his system at the time of the accident was hastened to development, 
causing his untimely death on May 1ft, 1010. The cause of death was 
tubercular peritonitis, the quick development of which was, under 
the circumstances, a resultant effect of the violence suffered. 

10. The average weekly wage paid the decedent was $13.86. 

11. The expense of the last sickness and burial was $350, no pari 
of which has been paid by the defendant company. 

12. The decedent and the defendant were at the time of the acci- 
dent bound by the provisions of the Workmen's Compensation Act of 
1015. 

riiXCHHIOXH OF LAW 

1. The decedent and the defendant were, at the time of the acci- 
dent, bound by the provisions of the Workmen's Compensation Act of 
1915. 

2. The decedent having met with an accident while in the course 
of his employment on the premises of the defendant, and the injury 
sustained thereby being violence to the physical structure of his body 
and the tubercular peritonitis of which he died being a resultant effect 
as stated, the claimant and the Children are entitled to compensation. 

{The award follows.) 



Rock v. State Workmen's Insurance Fund. 

De/rrrr. of disability — Drjirnd.i on jnctx in eitcn ciisr. 

There cnn be no fixed standard with reference to the decree of disability. Any 
evidence that would be material in any legal forum should be presented to the 
Board, including medical testimony and the opinion of those who are accustomed 
t . work in pertain employment, from which the Hoard will determine under what 
degree of total disability the employe is siiffcrinp and what is the market value of 
bis labor in view of his particular circumstances. 

Claimant not represented. 

Defendant represented by Samuel I. Spyker, Huntingdon. 

OPINION BY MACKEY— Chairman— April 20, 1021. 

Under the findings of fact in this case as sot out by the Referee, 
the claimant was injured on May 14, 101ft, and entered into a com- 
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166 

pensation agreement with the defendant for the payment of compen- 
sation at the rate of |10 per week, begining May 28, 1919. This 
agreement was duly approved by the Board. 

On December 21, 1920, the defendant filed a petition to terminate 
tbe said compensation agreement on the ground that the claimant 
had recovered from his disability and was able to resume work of 
some kind. 

The injured man filed an answer setting out that he was unable to 
follow his usual occupation and was still under medical treatment. 
The Referee found from the medical testimony that the disability of 
(he claimant had not ceased and that he would lie permanently unable 
to perform the work of a roofer, which was his occupation at the time 
that he was injured. The claimant expressed perfect willingness to 
undertake to do some work which would allow him to alternately 
stand and walk, provided it could be furnished him. The Referee 
found, from the testimony, that the claimant would be able to do some 
little work provided a suitable position icould be found for him; but 
because of lack of any reliable testimony as to what work the claim- 
ant can do and what wages he could earn, were any suitable employ- 
ment furnished him, the Referee properly dismissed the petition. 

The defendant appealed, very frankly stating that its object in so 
doing was to draw from the Board some expression as to the necessary 
proof to be presented in cases of this kind to relieve employers or in- 
surance carriers from the responsibility of paying full compensation, 
when the evidence establishes that total disability has been, at least, 
changed to partial disability. In addition, the defendant as an in- 
surance carrier, asks the Board in this appeal, to indicate the method 
of procedure and to fix the standard of proof whereby an employe's 
earning capacity may be established without such an employe being 
actually at work. The defendant has cited Josephite v. Coal Co.. 7 
Dept. Reports 229, and Fornatti v. Coke Co., 6 I>ept Reports 2454, 
as well as the learned opinion of Judge Evans of Cambria county in 
Zenny v. Railroad Co., (not yet reported) in support of the proposi- 
tion, as was well stated by Judge Van Swearingen "That there is no 
provision in the Workmen's Compensation Act of June 1 915, P.L. 736, 
giving authority to a Referee or to the Compensation Board or to the 
Court to require an employer to give work to an injured employe and 
no order or judgment based upon such a requirement can he sus- 
tained." 

There grew up a misunderstanding of tbe Board's position follow- 
ing the publication of Olerka v. Lehigh & Wilkes-Baire Coal Co., ". 
Dept. Reports 2954. We were there pointing out that an employer 
liad no right, under the law or our practice to determine for himself 
that disability bad ceased and to terminate the payment of com- 
pensation at his own pleasure. It was our endeavor in that case to 



150 

lay down the rule that the employer must file a petition to terminate 
or to modify accordingly as he avers a change in the employe's status, 
and to present to the Board reliable testimony to substantiate the 
allegations of such petition. In a case where total disability has 
been changed to partial disability, we held that, inasmuch as it was 
the employer's petition, that he assumed the burden of proving under 
what partial disability the employe then was suffering, and, if he 
avers any earning capacity in the employe, the burden of proving 
su,ch earning capacity is upon him. The Board, not with the idea of 
expressing the thought that it has the power to direct an employer 
to give an employe work, was indicating what in its judgment is the 
highest form of evidence in this particular. In other words, in a 
case where the employer avers that the employe had acquired an 
earning capacity, the best evidence to establish that fact is that the 
man is actually at work. In the Olerka casc(svpra) we merely went 
a step and showed that it 'is within the power of the employer to 
present this convincing evidence by giving the employe that employ- 
ment which he is able to perform. 

This position on the part of the Board and such a standard of 
evidence practically amounts, indirectly, to the exercise of that power 
which we disclaim. But we recognize the fact that labor conditions 
at the present time are very abnormal and that the consideration 
of this question must be based upon the fact that many employ- 
ers are powerless to furnish injured employes any employment "what 
soever. Therefore, we must temper the rigors of our rule, for the 
time being at least, and take into consideration other testimony and 
collateral facts to determine what the employe could earn, were n 
position available. 

There can be no fixed standard in this particular. Any evidence 
that would be material in any other legal forum should be presented 
to us. This necessarily includes medical testimony and the opinion 
of those wno are accustomed to work in certain employments. Iu 
other words, each case must stand upon its own facts and if no 
employment can be furnished, then, we must determine from the 
best evidence that is presented to us, under what degree of total 
disability the employe is suffering and what is the market value of his 
labor in view of his particular circumstances. 

In the case under appeal, however, we find in the record only a 
vague suggestion that the employe has acquired an earning capacity. 
There is no satisfactory evidence to indicate a cessation of disability 
nor a power to perform any particular work. There is nothing in 
the evidence to enable us to place a money value upon his limited 
earning capacity at this time, if he has- any. 

Therefore, this appeal is dismissed and the Referee is accordingly 
affirmed. 



Angello v. Philadelphia & Beading Coal & Iron Co. 

Commutation — Dixcictioiairy with the lloard. 



As the allowance of commutation under the Apt is discretionary with the Boiird, 
i; must igrorc the happenings of those events which might relieve the uVfenditiil 
uf payments, stich as re-marriage or death . 

Claimant represented by Charles F. Squillace, Philadelphia. 
Defendant represented by B. 1). Troutman and John F. Whalen, 
Pottsville. 

ORDER BY THE BOARD— May 6, 1921. 

On July 25, 1917, the Board granted commutation to Josephine 
xiugello whose husband, James Angello, had been killed in the course 
of his employment for the defendant. 

The commutation granted was in the Bum of $156.10. This amount 
was determined by the deduction of twenty weeks' compensation of 
the last installments of the three hundred week period during which 
time the widow was to receive the said compensation. The said 
Josephine Angello died on August 6, 1920. Upon proof of this fact 
having been brought to the attention of the Board, said compensation 
agreement, on November 24, 1920, was accordingly terminated as to 
the deceased, but continued as to Nicola Angello, a minor child, who 
had been previously provided for in the said Compensation Agree- 
ment. 

The defendant now claims that in view of the fact that the widow 
had become the beneficiary of the said order of commutation, and 
died before the time when the defendant could have been reimbursed, 
because of the deduction of twenty weeks from the period of three 
hundred weeks, then the Board ought to make an equal deduction in 
time, or make an allowance to the defendant from the compensation 
payable to the minor to thus reimburse the defendant for the money 
advanced to the widow. 

As we view commutation, it is a discretion allowed under the Act 
to the Board. The conditions required in the Act for the exercise of 
this power must be satisfactorily met by the petitioner, and in grant- 
ing commutation we must ignore the happening of those events that 
might relieve the defendant of payment. In all cases of commutation 
to claimants who are permanently injured we must ignore the 
possibility of such claimant dying before the expiration of the com- 
pensation period. So in cases of widows, if we find it to their best 
advantage to commute to them a certain sum of money and also find 
that such commutation,' in view of the testimony then before ua, will 



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not work any harm or disadvantage to the defendant, we must, in 
granting such petitions, ignore the possibility of remarriage or death. 

The facts, as agreed upon in this case, which have become the basis 
of -the defendant's petition, will not warrant us in charging this 
advance payment made to the widow against future compensation due 
the minor child. 

The petition is accordingly dismissed. 



Kerestan, v. Vesta Coal Co. 

Foreign Consul — What arc proper credentials of. 

A certificate of the Department of State signed by the Secretary of State is 
sufficient evidenee as to the accredited Consul of any foreign government in tlic 
United States. 

Claimant represented by Arthur M. Grossman, Pittsburgh. 
Defendant represented bj Prank M. Painter, Pittsburgh. 

ORDER BY THIS BOARD— May 6, 1921. 

The findings of fact and conclusions of law of the Referee are 
affirmed and the appeal dismissed. 

The Board finds that the said Albert Mamatey is the duly accredit- 
ed Consul of Czecho-Slovakia, located at Pittsburgh, and is the legal 
iind proper representative of the widow and dependent children in 
this case, who are now residing abroad. 

There will be found in the record a certificate of the Department of 
State signed by His Excellency, Bainbridge Colby, former Secretary 
of State, and upon these credentials the Board feels satisfied that 
the award has been properly made. 



Niedeleoff v. Stone & Webster Engineering Co. 

Alien resident — Eff<.cl o) his removal to Europe. 

Oimitensation awarded an alien resident will not be reduced by reason of Im 
voluntarily and without notice removing to Europe. 

The one-third reduction of compensation under the Act does not apply to au 
in^ired employe but only to dependents. 

Claimant represented by F. W. Stouecipher, Pittsburgh. 
Defendant represented by N. C. Praley, Pittsburgh. 



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159 
OPINION COMMISSIONER .IARRETT— May 6, 1921. 

The claimant in this case, a resident alien, was awarded com- 
pensation. He then moved to Bulgaria and thus became a non- 
resident alien. 

The insurance carrier intervening defendant filed a petition alleg- 
ing: 

"It is alleged he is now residing in his native country, 
Bulgaria, having voluntarily and without notice taken 
himself out of the jurisdiction of your Honorable Board 

and removed to Europe Your petitioner now 

respecfnlly asks that the Referee's award be modified 
to the extent that the claimant only receive two-thirds 
of the compensation which would accrue to a resident of 
the United States, on account of his having taken 
advantage of the money rate of exchange by removing to 
a foreign country." 

Referee Christley in his conclusions of law states: 

"Your Referee concludes therefore that the defendant 
is not entitled to have the award made in this case re- 
duced to two-thirdB of the amount of the award, for the 
reason that Section 210 of the Workmen's Compensation 
Act does not apply to an injured employe but only to 
dependents of the deceased employe." 

We are satisfied that the position taken by the Referee is correct. 
His findings of fact, conclusions of law and disallowance are accord- 
ingly sustained and the appeal dismissed. 



Edds v. Kinney. 

Independent contractor — Method of compcnuntum not determinative of. 

Where a person procures (he services of an employe for another person, who 
exercises full authority of a master over such employe, the method of compensating 
the employe is not determinnlive of the question of independent contractor. 

Claimant represented by J. R. Haughney, Erie. 
Defendant represented by J. C. Sherriff, Pittsburgh. 

OPINION BY MACKEY— Chairman— May 6, 1921. 
The appeal in this case raises a question of law and brings before 
us a most important interpretation of the Legal relationship thai 
existed between the parties involved in this case. We must ascer- 
tain" from the practically agreed facts whether the deceased was an 
employe of the defendant or of a third person who was an independent 
contractor or of a still undisclosed principal. It must also be de- 



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160 
iermined whether or not the deceased was a partner engaged in an 
independent business with no relationship of servant to any master 
whatsoever. 

We will re-state the facts as they appear to us in the evidence and 
the findings of fact, which the Referee has very carefully and, wc 
think, correctly assembled. If, however, in the statement of these 
facts we should in any degree modify, or differ with, the findings of 
the Referee, it will be our facts upon which our conclusions will be 
based, for under the amended Act we have the power to set aside any 
particular finding and substitute our own without the formality of 
granting a hearing de novo. See Act of June 26, 1919, P. L. 66*, 
Sec. 423. 

James William Edds was the husband of the claimant and, while 
Working Upon the premises of the Peerless Sand Co. situated in 
Fairview, Erie county, was, on November 10, 1920 kicked by a horse 
end immediately died in consequence thereof. He left to servive him. 
the claimant, as a dependent widow and two sons under the age of 
Sixteen as follows: Earl Edds, born March 17, 1010, and Walter 
Edds, born February 28, 1905. His average weekly wages were more 
than $20. The expenses of his burial were 8203. 

The work in which he was engaged at the time of his death was 
hauling moulding sand from a sand pit. located upon the property 
hereinbefore mentioned. The said property was leased by the said 
Peerless Sand Oo. and was placed in charge of the defendant, Jay 
Kinney, whose duty was to oversee the loading of the sand. Kinney's 
testimony is rather important and should be referred to at this time, 
for it is very evident that be as defendant, seeks to establish the fact 
that the deceased was his employe. It appears that this defendant 
had insured his compensation liability in the Fidelity & Casualty 
Co. of New York, and that this contest is being conducted by the in- 
surance carrier for the purpose of relieving itself of the payment of 
compensation, which the real defendant very seriously contends that 
it, as his insurer, ought to pay. 

Tt becomes our positive and important duty, however, to consider 
this case thoroughly from this angle, for the reason that the insurance 
carriers of the State must necessarily conserve their resources, as 
is their right and duty under the law, and protect themselves against 
any possible collusion between claimants and employers who insure 
their liability. We find the following questions and answers in the 
testimony of the defendant: 

Q. Tn the line of your business did you have occasion 

to employ men ? 
A. Yes sir. 
Q. State who was employed by you; first state if Mr. 

Edds worked for you? 
A. Yes sir. 
Q. When? 



161 

.V. Well, from November 4 until— or October 4 

he was working there before November 10. 

Q. What year, 1920? 

A. 1920, yes sir. 

Q. About how long did he work for -you? 

A. I think from October 4 to November 1". 

Q. I>o yon recall when .Mr. Edds died ? 

A. Yes sir, 10th of November. 

A. Yes sir, 10th of November. 

<}. November 10, 1020? 

A. Yes sir. 

Q. Where? 

A. In the sand pit at Fairview. 



Q. State Mr. Kinney about how many men or teams 

at that time were in your employ? 
A. Well, there was twelve or fourteen teams. 
Q. Where were you hauling this sand? 
A. To the Nickel Plate R. R. at different points. Mr. 

Edds was hauling to what is known as Walker's 

sand-spur. 
Q. And Mr. Edds was one of the drivers of those teams? 
A. Yes. 
y. Describe your supervision and control of the man 

and the teams? 
A. I had full control of the men when they were on 

that job. 
Q. Also the teams? 
A. Yes sir, that is the teams — I did not look after the 

teams so much as 1 did what they were handling. 

1 wanted the right material and that is what 1 

looked after. 
Q. What did you pay these men Mr. Kinney? 
A. Well, different prices at different times. At the 

time of Mr. Edd's death they were getting eighty 

cents a ton. 
Q. What was Mr. Edds getting? 
A. Mr. Edds was supposed to get one-half of the eighty 

cents, forty cents a ton. 
On cross examination we find the following: 
Q. Mr. Kinney, you have stated in answer to a question 

by counsel for the claimant that Mr. Edds was work- 
ing for yon, is that strictly speaking correct? 
A. He worked for me when he was on that job. 
Q. Was he employed hy you ? 
A. No sir. 
Q. That is what you want to tell the Referee? 



By whom was Mr. Edds employed? 
Mr. Busch. 



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162 

Q. By Mr. Busch? 

A. Yes sir. 

Q. Going back now to the beginning of that arrange- 
ment who was the owner of the sand pit where 
this work was being done? 

A. Well, Mr. Carroll owns the farm, the property. 

Q. Who bad it under lease? 

A. The Peerless Sand Co. 

Q. And it was being operated by the Peerless Hand Co. 

A. Why 1 was operating the pit; they leased the sand 
and hired me to load it. 

Q. They leased the sand and hired you to load it? 

A. Yes sir. 

Q. When did this take place, when they hired you to 
load the sand approximately? 

A. Two years ago last July. 

Q. With whom did you make the arrangement? 

A. Mr. Bixler. 

Q. What is Mr. Bixler's connection with the Peerless 
Sand Co., if any? 

A. General Manager. 

Q. Will you state to the Referee how this arrange- 
ment was carried out between yourself and the 
Peerless Sand Co; that is your method of doing 1 the 
work for them and reporting to them and receiving 
your pay? 

A. I took the job of them loading their sand and they 
was to give me so mnch money and T had hired these 
extra teams to draw sand, of course I have teams of 
my own. 

Q. You devoted all of your time, I believe, Mr. Kinney 
to the work of the Peerless Sand Co? 

A. IAJI the time that was needed. 

Q. The Peerless Sand Co. would send yon the orders' 
for what they wanted ; the different grades of sand 
they wanted and the quality;! of the sand and give 
you the shipping direction and you would load the 
sand and ship it? 

A. Yes sir. 

Among the teams thus hauling sand were several, either belonging 
to or procured by Lynn J. Busb. In this arrangement Bush had pro- 
cured the deceased as a driver. The drivers who had been thns hired 
by Bush were paid by Busch who collected from Kinney eighty 
cents per load and gave the drivers, including Edds, forty cents per 
load. 

The said Busch testified that Edds, first came to him seeking em- 
ployment and that the witness loaned him a team on the basis of an 
equal division of the payment per Load, so that Edds was receiving 



ma 

forty cents per load for bis team. Basel), however, explicitly stated 
in Ms testimony that when he entered into a contract with Edds, it. 
was purely in the interests of the defendant Kinney, and that the 
contract between the said witness (Busch) and the deceased was as 
to the team that belonged to the witness. It is clear from Bush's 
testimony that lie. like Kinney, was striving to establish the claimant's 
case as against the present defendant. It is also clear that Kinney 
had full charge of the deceased directing him aa to what sand was to 
be carted and where it was to be taken, and exercised full authority 
of a master over him as to all his actions, and, as asserted in the tes- 
timony, that he had full power to dicharge. 

Under the foregoing facts it is our conclusion that Linn J. Busch 
was not an independent contractor, but that in this particular case 
he merely procured the deceased to become an employe of the 
defendant, and that the method of compensating the deceased is not 
determinative of the important isues in this case whatever, but is 
only a matter of bookkeeping or tbe business arrangement between • 
them. 

The fact that Busch collected eighty tents per load and divided 
it with the deceased does not determine the question ; for it is per- 
fectly apparent that Hum!], owning the team, considered that he had 
a very large interest in its earnings and therefore collected the money 
first and the part he retained for himslf was to compensate him for 
the work done by his team. Therefore when the money passed from 
the defendant to Busch, the defendant, as a principal, was paying 
for the team and also for his own employe, the deceased. 

The record does not disclose the actual relationship between Kinney 
and the Peerless Band Company, but inasmuch as the defendant has 
not sought to avoid his own responsibility and the insurance icarrier 
of the defendant has not urged the question of the liability of the 
Peerless Sand Company, we do not think it is the duty of the Board, 
of its own motion, to enter into a discusion of that question. We will 
not look further than the present record for a responsible defendant. 

We take this position notwithstanding the fact that the testimony 
is not conclusive as to whether the present defendant is. an indepen- 
dent contractor or a superintendent or manager of tbe Peerless Sand 
Co. The claimant has mot the burden of proof which the law has 
placed on her. The insurer in the answer to the claim petition sug- 
gested the responsibility of the Peerless Sand Co. but in no way 
met the burden of proof thus thrown upon the defense. From this 
view of the case it becomes our duty to publish the following: 

(The award follows) 



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Friedrich. et al. v. Etna Connellsville Coke Co. 

Stiiiulc oj timittiliuHH- liit.ijirinictl iluriny tear for alien enemy. 

Tin? statute of limitations will be smipeiided during lime of war between tlie 
t'nitcd SluteB ami Austria-Hungary, wli'-n the dependents of the tWeitsed employ 1 ' 
live in Austria- Hun gii ry. The statute cannot run as against the rights of those 
dependents until some determinative action shall have been taken by the Congress 
ot the United States or a treaty of peace shall have been exeentett. 

Claimant represented by Crow, Shelby & Tabor, Uuionlown. 
Defendant represented by C E. Graham, Pittsburgh. 

OPINION BY MACKEY— Chairman— May 12, 1921. 

HEARING DE NOVO 

Frank Friedrich while employed by the defendant, The Etna-Con- 
nellsville Coke Co., at Dunlap, was instantly killed. The date of 
his death was June 4, 1919. At the time he was earning wages in 
excess of |20 per week. He left, as surviving dependent children. 
Maria Friedrich, born August 18, 1903, Inna or Irma Friedrieh, born 
January 5, 1907, and Frank Friedrich, born June 29, 1913. These 
children at the time of the death of their father were alien resident 
dependents, residing in Divin. 

At the hearing de novo the following agreement was entered of 
record: 

"The town of Divin is now claimed by the Republic of Czech-Slo- 
vakia ; and it is further agreed that the town of Divin was formerly 
under the jurisdiction of and part of the territory of Austro-Hungary, 
Europe, and that it was at the time of the accident, alien enemy 
. territory." 

Tbe testimony taken before the Keferee, prior to the hearing de 
novo, by an agreement of the parties was adopted so as to be con- 
sidered by the Board as though taken before it. 

Nowhere in the proceedings has the right of Edward O. Tabor to 
represent the minor children been challenged, but the entire defense 
of the insurance carrier, the Ocean Accident & Guarantee Corp., is 
that this action is barred by the statute of limitations under Section 
315 of the Workmen's Compensation Act of 1915, as amended in 
1919, for the reason that the claim petition was not actually filed 
until Jury 8, 1920, more than twelve months after the death of the 
father. 

Counsel for the dependents has read into the record a number of 
communications that passed between him and the insnranee carrier 
in an attempt to show that he was lulled into this position by the 
admission of responsibility at the hands of the insurance carrier, 



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166 

and its assurance of an amicable adjustment. It has been sought, 
by this testimony, to show that practically a compensation agreement 
had been determined upon, thus tolling the running of the statute 
under the provisions of the Act. This is denied by the insurance 
carrier, and we take it that the real question irt this case is whether 
or not the statute of limitations has as yet run or will begin to run 
until after the actual conclusion of the status of war between the 
United States and Austro-Hungary by action of Congress or the 
signing of a treaty of peace. 

The Referee made certain findings of fact concerning which we 
find no evidence, but undoubtedly he felt that they touched matters 
of such public concern and that he could take judicial cognizance 
of them. These observations of the Referee were as follows: 

''The proclamation of the President of the United States recogniz- 
ing Czecho-Slovak nation as a de facto belligerent government for the 
purpose of prosecuting the war against the enemies of the United 
State was issued on September 3, 1918 previous to the ending of 
hostilities. Soon after the Czeeho-Slovak Republic completed the 
organization of its government and on November 14, 1919 had its 
Consul General at New York city. The death of Frank Friedrich 
did not occur until June 4, 1919 and at that time the United States 
had recognized the Czechoslovak Republic and was not at war with 
that nation nor has it been at war with this Republic since that date." 

With this statement and conclusion we cannot entirely agree. It 
it now in the record as an agreement between the parties, that the 
town of Divin is situated in territory that at the time of the accident 
belonged to Austro-Hungary, and was alien enemy territory. It 
seems to us that this agreement fixes the status of this case. We find 
as a fact, and as a matter of which the court can take judicial cog- 
nizance, that the town of Divin is situated in territory that was form- 
erly know as Hungary and that it was so known at the time of the 
lieginning of the War between United States and Alustro- Hungary. 
And while it is unquestioned, that if there be at sometime in the 
future, a ratification of the territorial lines as projected by the Peace 
Conference, the town of Divin will then be located in the Republic of 
Czecho-Slovak, still, for the purposes of this case, we cannot estab- 
lish the status of the parties upon any such consideration. And, 
while undoubtedly the Referee was right that the United States, by 
executive proclamation, had recognized the belllgerancy of the 
Czecho-Slovak government, nevertheless, the appeal in this case cor- 
rectly states a principle of international law that the President by 
so doing did not, and neither did he, have the authority to fix, the 
territorial boundaries of such recognized belligerant republic. 



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166 

In Dudas v HillBide Coal & iron (Jo., 3 Pernio. Workmen's Com- 
pensation Board Decisions, page 155, we denned our position in re- 
gard to the status of non resident alien enemy claimants, and held 
that it was not within our power, during a state of war, to proceed 
with the prosecution of these cases. We there observed: "It oc- 
curs to us that we ought to be most zealous to preserve for the wi- 
dows and children of these An stro -Hungarian subjects, killed within 
our jurisdiction in the prosecution of our industries, ever; safeguard 
that a board and humane law' guarantees to them in times of peace. 
The fact that a state of war exists between the United State and 
Austro-Hungary cannot be seized as an excuse for invoking techni- 
calities nor any undue nor precipitate haste in the disposition of 
the cases that involve the rights of these helpless and innocent de- 
pendents who have uot the slightest responsibility for present inter- 
national conditions." 

We then held, that "Trading with the Enemy Act" substituted, 
automatically, the custodian of allien property for the claimants, 
and that, even though in a number of cases the Referees had proceed- 
ed with the hearings, neverthless, we held it to be a fiction of the law, 
that there had been no hearings, and the cases were still underter- 
inined and within the control of the Custodian of Alien Property. 

We think that these observations control us in the present case. 
We have previously observed that there has been no challenge pre- 
sented as to the right of Edward 0. Tabor to stand as a responsible 
party in the prosecution of the claims of the minors. Nevertheless, 
we feel that he must act solely in the interest of the Custodian of 
Alien I'roperty. We therefore direct the inclusion of the Custodian 
of Alien Property in the records of this case as a claimant in behalf 
of these minor children. 

We hold that the United States and Austro-Hungary is still, techni- 
cally, in a state of war and will be so until some determinative ac- 
tion shall have been taken by the Congress of United States or a 
treaty of peace shall have been executed. Under this state of affairs 
we also hold that the statute of limitations cannot run as against 
the rights of these children. 

The rule is that an international war suspends the statute of limi- 
tations between citizens of the countries at war so long as it con- 
tinues. When peace is restored the statute again begins to run. An 
interesting review of the common law rule and the reasons therefor is 
found in Wall v. Robson, 2 Nott & M. (S.C.) 498, where the question 
was whether the statute of limitations ran against a bill of exchange 
drawn by an American citizen in favor of a British subject, during 
the period of the War of 1812. In deciding it did not run, the court, 
in the course of an elaborate discussion, said inter alia, (page 503). 

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Ifi7 

"From the principles laid down by Lord Coke, it appears, that the 
common law recognized the civil law, and they both coincide and 
harmonize upon this important subject, namely, that in time of war 
no action can be maintained by an alien enemy; but upon the re- 
turn of peace, all the friendly relations between the subjects and 
citizens of the two countries are restored, and their rights may be 
mutually prosecuted in the courts of justice in either country re- 
spectively, without hindrance or interruption. And the reason given 
for not permitting an alien enemy in time of war, is a good one, as 
it might have a tendency to draw the resources out of the country, 
iiod the better enable or aid the opposite party to carry on the war 
on his part. War then does not deprive the individual, in an en- 
emy's country, of his right or demand ; it only suspends it until the 
courts of justice are open to enable him to recover it. The privilege 
of commerce has secured this right to the subjects of all nations; 
and the state which should refuse this right at the present day would 
not deserve to be ranked among those of the civilized world. . Upon 
the return therefore of the day of peace all those rights recommence 
which had lain dormant or had 'been suspended during the period 
of war. A contrary doctrine would enable every debtor in a country 
lately restored to peace, where there had been commercial dealings 
l>efore the war, to cheat and defraud his just and bona flde creditors, 
us very well observed in the argument, since every nation in its po- 
litical capacity disdain or disclaims every idea of confiscating com- 
mercial debts to its own use. If then it is clear and evident both by 
the common law and the law or courtesy of nations, that there is no 
national principle existing to bar or prevent an alien in a foreign 
' country from recovering a just debt after the restoration of peace, 
shall it be said or allowed, that any municipal regulation of one of 
the states shall have that effect where the general law of nations 
and those of foreign commerce say the contrary ? T very much ques- 
tion the power or authority of any state or nation, at this enlighten- 
ed period of the world, to pass such a law, if they were disposed to 
do such an act of injustice." 

And further on Page 505: 

"War, it is admitted on all sides, cuts off all friendly intercourse 
between the citizens and subjects of contending nations, and shuts 
up the courts of justice against the demands of each other, however, 
numerous and great the credits or creditors may be. It is an event 
that the creditors could not control, ad over which they had no 
power. There is no default in them. It is an event that the 
creditors could not control, and over which they had no power. 
There is no default in them. It is one of those things which Plowden 
says could not be avoided by foresight or diligence; and when such 



168 

power. There is mi default in them. It m one of those things which 
Plowden says could not be avoided by foresight or diligence; and 
when such things hapjien, the law will not punish a man for it; for 
if the law should punish a man for an accident, or for an event, which 
by no* foresight or diligence could be avoided, it would be utterly 
against reason. Now to apply these principles and the force of this 
reasoning to the case immediately under consideration, the Law of 
Nations, not only permits, but favors foreign commerce; and as a 
natural conseqnence, the right of recovering debts. For example, a 
man in Sojuth Carolina, contracts a debt with a merchant in England, 
and imports his merchandise in good order, and due time, agreeably 
to order." Within one month after this contract is made,, war is 
declared between Great Britain and America, (and lasts, we will 
suppose, for five years, the time mentioned in the act,) at the end of 
these five five years peace is restored ; and the merchant in England 
calls upon his debtor in South Carolina for' his money; no says the 
debtor, we have a statute in force in South Carolina, which 
says, all debts, not sued for within five years, shall be forever barred ; 
that this statute began to run, when the contract for the goods was 
made, and it ran out, which operates as a bar to your recovery. Bat 
replies the English merchant, I was prevented from bringing suit, as 
war was declared immediately after the contract was made, and I 
brought my action as soon as possible after the war ended, and peace 
was restored. No matter for that, rejoins the Carolina debtor, our 
statute of limitations began to run from the day of the contract, and 
nothing could stop it till it ran out. So your debt is gone forever. 
Would this be justice? Would it not be punishing an innocent man 
for an event he could not forsee, and which no diligence on his part 
could prevent? Would it not lastly (as Plowden says), be utterly 
ngainst reason? Most undoubtedly it would." 
And finally on Page 510: 

"From every view therefore which I have been able to take of this 
new and important subject, and from all the authorities which I 
have been able to examine, which have a bearing upon it, I am 
decidedly of opinion, that the declaration of war amounted to a 
suspension of the limitation act, against British creditors; and that 
the whole of the time which elapsed from its declaration to the day 
when peace was proclaimed, ought to be thrown out of the com- 
putation of time mentioned in the statute for barring a plaintiff of 
a just demand." 

The rule above stated was also followed in Hopkirk v. Bell, 3 
Cranch 459; Dnnlap v. Alexander, 8 Fed. Cas. No. 4166; Nickes v. 
Martindale, 18 Amer. Dec. 647. 

The same rule was also applied to the Civil War. Thus in Jack- 
ion Ins. Co. v. Stewart, 13 Fed. Cas. No. 7152, it was said: 

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"It ia a well-settled principle, that contracts made before war are 
only suspended by the war, whereas, contracts made during the war 
are void. This principle is fully recognized by the Supreme Court 
in regard to our late civil war. In ancient times private property 
of alien enemies, and debts of every kind were confiscated to the 
state. Happily, all this has been changed in modern times; and 
now, while contracts made during war between alien enemies are 
absolutely void, being against public policy, private interests an 1 
protected, and bona fide contracts made before the breaking out oi 
the war are suspended during its continuance, but revive at its term- 
ination. To the honor of the United States and Great Britain be 
it said, that these rights have always been respected by them. 
"It has been Tepeatedly decided by both state and federal courts, 
that where, by a legislative enactment, parties are prevented from 
prosecuting tbeir claims, the interval during which such prevention 
lasts is not to be counted as uart of the time allowed by statute of. 
limitations. Xow, the power to make war and peace is by the con- 
stitution of the United States delegated exclusively to the federal 
government ; and as during the war, the plaintiff, being a corpora- 
tion of the State of Tennessee, had no right to bring suit against 
the defendant, who was a citizen of Maryland, the Maryland statute 
of limitations was suspended during this period. The general rule 
unquestionably is, that where the statute of limitations had once 
begun to ran, no subsequent disability will arrest it. But we have * 
already seen that a legislative enactment suspends the running or 
the statute, and the same result follows from the declaration of war 
by the supreme power of the land. For it is a well recognized prin- 
ciple of the law of nations that the right of a creditor to sue for the 
recovery of his debt is not extinguished by the war. It is only sus- 
pended during the war, and revives in full force on the restoration 
of peace. A war, then having certainly existed between Tennessee 
and the Federal government, from the President's proclamation of 
August 16, 1861, and which, although a civil war, yet, according to 
the decision of the Supreme Court in the Price cases, carried with 
it all the consequences and disabilities of a public war, one of which, 
as we have seen, was the suspension of the right to sue during the 
war; it follows, therefore, that the plaintiff in this case could have 
instituted no proceedings in this court until peace was proclaimed 
by the President's proclamation of June 13, 1S65. This suspension 
being by the exercise of the paramount authority of the government, 
cannot be held to work a forfeiture of the plaintiff's cause of action, 
but his right to Bue. suspended by the war, revived when it ceased ; 
and as it has not been three years from the maturity of the cause of 
action to the commencement of the war, and from the termination of 

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170 

the war to the commencement of this suit, this suit is not barred 
by limitation, and the demurrer is therefore overruled." 

See, also, to the same effect, Bird v. Louisaiuia State Bank, 915 
U. 8. 96; Batesville Inst. v. Konffman, 18 Wall. 151; Hiatt v. Brown, 
15 Wall. 177, and cases cited in Vol. 3 Penna. Workmen's Compen- 
sation Board Decisions, pages 155 — 165. 

The Bureau is hereby directed to send a copy of this opinion to 
the Custodian of Alien Property at Washington, and the considera- 
tion of the case will be postponed until the Bureau shall have been 
notified by the said Alien Custodian that peace has been declared be- 
tween these two countries, or that he has no further interest in the 
case and consents to the prosecution of the ease by the representa- 
tive of the minora In the meantime the case will rest in the hands of 
the Referee as though no hearing had been held. 



Burgoyne v. Pittsburgh Coal Co. 

Dependency — Parents upon children. 

The fact tliat the father and several sons are all employed and contribute their 
earnings to the mother for the support of the family, does not preclude a finding 
by the Board that tbe patents were dependent upon one of the sous for support 

Claimant represented by David Hickey, Pittsburgh. 
Defendant represented by George T. Emery, Pittsburgh. ■ 

OPINION BY COMMISSIONER JARRETT— May 17, 1921. 
HEARING DS NOVO AT PITTSBURGH 
The testimony taken before the Referee was adopted to be con- 
sidered as if taken before the Board and additional testimony was 
taken. 

FINDINGS OP FACT. 

1. That no notice was served by James Henry Burgoyne upon the 
Pittsburgh Coal Co. or by said company upon him rejecting Article 
III of the Workmen's Compensation Act of 11115, and that the Board 
has made no personal investigation of the facts in this case other 
than those appearing in the claim petition, answer filed and facts 
adduced at the hearing. 

2. That James Henry Burgoyne was employed by the Pittsburgh 
Coal Co., on the 21st day of April, 1920, at its Black Diamond mine, 
in Washington county, at an average weekly wage in excess of. $20 
per week and while in the course of his employment he sustained 
injuries bv slate railing upon hitn, killing him instantly. 

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3. That the expenses of his burial were in excess of $100, no part 
of which has been paid by the defendant. 

4. That at the time of the death of the said "James Henry Bur 
goyne. he was unmarried and without issue but he was survived by 
his father, Percy Burgoyne, age 64 years and his mother, Sarah Ann 
Burgoyne, 64 years; that Percy Burgoyne is a coal miner by occu- 
pation and that the family consisted of namely, Herbert Burgoyne, 
25 years of age, John Francis Burgoyne, ag<xl 23 years, Alrid Bur- 
goyne, aged 16 years and Herman Burgoyne, aged IS years; that in 
September 1917, Herbert Burgoyne went into the United States 
Army and John Francis Burgoyne went into the service of the United 
States Army in 1918. The former returned from the army in Sep 
tember, 1919 and the latter returned in November, 1919, shortly 
after the Armistice was signed. During the time these two sons 
were in the army there remained to constitute the working force of 
the family, the father, and Alrid Burgoyne, aged 16 years and James 
Henry Burgoyne, the deceased ; the other boy, Herman Burgoyne, 
aged 13 years, was going to school. At the time of the death of 
James Henry Burgoyne, Herbert, John Francis, Alrid and the father, 
Percy Burgoyne, were all working; the Wages of the father being 
#5.15 per day, John Francis |5.26 per day, Herbert ?5.44 per day 
and the deceased boy, James Henry, ?5.48 per day, and Alrid was 
working with his father in the mine begining some time in the early 
part of October, 1920, to work; that the father and the boys turned 
over their money to the mother, she giving them their spending 
money; that they owned no property and have not been able to save 
any money after the living expenses of the family have been paid. 
At the time previous to the deceased son's death and while the two 
sons were in the army, they not having made any allotment of money 
to their parents and that the deceased son, James Henry Burgoyne 
remaining at home, contributing his earnings and continued to con- 
tribute his earnings until the time of his death, we find that the 
claimants, Percy Burgoyne and Sarah Ann Burgoyne, were dependent 
upon their deceased son for support to some extent within the mean 
ing of Section 307 of the Workmen's Compensation Act of 1915. 

CONCLUSIONS OF LAW. 

Upon the facts appearing in this claim the Board arrives at the 
following conclusions of law: 

1. That Article III of the Workmen's Compensation Act of 1915 
applies to the contract of employment existing between the deceased 
and the defendant on April 21, 1920. 

2. The claimant's deceased son having come to his death by reason 
of injuries sustained by an accident while in the course of his em- 

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172 

ployment with the defendant company, the claimants, bis father 
and mother being dependent upon him to some extent at the time 
of his death, they are entitled to recover compensation as provided 
by Section 307 of the Workmen's Compensation Act of 1915 and an 
additional sum of ¥100 for the expenses of the last sickness and 
burial of the deceased. 



The Board accordingly awards to Percy Burgoyne and Sarah Ann 
Burgoyne, claimants, against the Pittsburgh Coal Co., defendant. 
compensation at the rate of 20% of $20 or $4 per week for a period 
of 300 weeks beginning May 1, 1920, payable as the wages of the 
deceased were payable and an additional sum of $100 for the burial 
expenses of the deceased son. 

No bill of costs filed. 



Alchoff v. Philadelphia & Reading Coal & Iron Co. 

DeaHt^—Jfo relation to injury. 

Where decedent died from infections meningitis, and the meninEtis and death 
had no relation to the injury which deredont previously sustained, no comiii'nsatioii 
will be allowed. 

Claimant represented by Roger J. Dever, Wilkes-Barre. 
Defendant represented by B. D. Troutiiian and John F Whalen, 
Pottsville. 

. OPINION BY COMMISSIONER HOUCK— May 24, 1921. 

On October 10, 1920, the claimant's deceased husband was in the 
employ of the defendant company as a loader. About 9 o'clock in 
the morning of this day coal lodged in the chute and the decedent 
went up the chute to loosen the coal. "When he did bo there was a 
rush of the coal and he was carried down the chute with it He was 
carried as far as the check, which is the point where the chute ends 
and the coal falls into the car beneath. He was soon released from 
the chute and he and a number of fellow employes went to the stable, 
which was about 200 feet away, and ate some lunch. The decedent 
made the remark that he was more scared than hurt, hut he com- 
plained of a slight pain in the small of his back. He resumed work 
after ten or fiffeen minutes rest and continued until the end of the 
work day. He worked five days after this occurence without further 
complaint and then requested that he be furnished with an order to 
Dr. A. P. Seliginan, one of the defendant's compensation physicians, 
directing treatment for an infected index finger and a lacerated 



173 

face. He was given the order and he reported that evening to Dr. 
Kelignian, who lanced his finger. The doctor dressed his finger daily 
until the 20th of the same month and then discharged him as cured 
and able to resume work. He resumed employment on October 22 
and worked the 23rd and 24th. On the evening of the 24th Dr. 
Seligman was again sent for and he found the decedent to be very 
ill, with a temperature of 104 and complaining of pain in the region 
of the second lumbar vertebra. The physician diagnosed the case 
as meningitis, and on October 28th he sent him to the State Hospital 
at Fountain Springs where he died on November 1, 1920. The 
claimant tiled a claim petition claiming that the decedent's death 
was due to the accident of October 10th. 

A great deal of medical testimony was introduced at the hearing. 
Dr. Seligman testified that there was no connection between the 
decedent's death and the injury, and he was corroborated by Dr. 
3. L. Warne, who testified on behalf of the defendant as an expert. 
On the other hand Dr. J. C. Biddle, the superintendent of the Miners' 
Hospital, testified that, in his opinion, there was a connection be- 
tween the decedent's death and the injury; and Dr. W. T. Leech, 
an interne in the Hospital, testified to practically the same thing. 
In this state of the record the Referee continued the hearing and 
gave both the claimant and defendant the privilege of calling other 
experts if they so desired. 

At the continued hearing the defendant called Dr. E. J. O. Beards- 
ley, assistant professor of medicine in the Jefferson Medical College, 
Philadelphia. Dr. Beardsley testified in substance that there was 
no testimony in the record showing any connection between the injury 
suffered by the decedent and his subsequent death. The Referee 
found as a fact that the decedent died from infectious meningitis, 
and that the meningitis and death had no relation to the injury which 
the decedent sustained on October 10, 1920. He accordingly dis- 
allowed compensation and the claimant has appealed. 

The Referee's findings are supported by the evidence and the Board 
is unable to say that the Referee has erred. The record shows that 
the Referee considered the case very thoroughly and his opinion 
shows that he weighed all the evidence carefully. Therefore, the 
Board is not disposed to interfere with the Referee's disposition 
of the case. 

The findings of fact and conclusions of law of the Referee are 
affirmed and the appeal is dismissed. 



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174 
Cardan r. Sci-aiiton Holt & Knt Co. 

Death — Oecnrring before hearing fie novo. 

Where the Referee iiwan's ™miicnsation ami tile Eoard grants a hearing de novo, 
hut claimant dies before the hearing, the petition will be dismissed. 

Claimant represented by D. J. Davis, Scranton. 

Defendant represented by John J. Ziegler, Philadelphia,and B. F. 

Tinkliam, Scranton. 

OPINION BY COMMISSIONER JARRETT— May 24, 1921. 

In this case the Referee awarded compensation. The Board set 
aside the award and granted a hearing da novo- The hearing was 
set for February 25, 1921 and the claimant died February 2, 1921. 
I'ndi'r these circumstances, the claimant's death occurring before 
the hearing dc novo, we will have to dismiss the petition. See 
Ktretch v. Hotter & Garman, 5 Dept. Reports, 62; Ella M. Kinly i». 
I\ R. R., 6 Dept. Reports, 1304. 

The petition is accordingly dismissed. 



Wilmot r. Strawbridge & Clothier. 

Death — Petti-ting heating dc novo. 

When claimant dies after the granting of a heat-ins de novo, and before tlio 
,lu aring, the case will be stricken from the record. This, however, without prf- 
^judico to any possible claim by the widow or other dependent. 

Appellee represented by George C. Klauder, Philadelphia. 
Appellant represented by Layton M. Schoch, Philadelphia. 

ORDER BY THE BOARD— May 24, 1921. 

Now, May 19, 1921, it having been called to the attention of the 
Board by George ('. Klauder, Esq., attorney of record for the clai- 
mant, that Ebenezer Wilmot, the claimant, has died since the grant- 
ing of the hearing dc hoi;o, the case is stricken from the record. This 
is done without prejudice to any possible claim by the widow or other 
dependents. , \ m ,- ;J 



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West r. Cummings. 

Course of employment — Agrirmltural irorfc. 

When nn employe wns employed by defendant to (insist him with work on de- 
fendant's farm, and drfendant was also the owner of timber whieh was being manu- 
factured into lumber, and the employe is killed while hauling rollers and bark from 
the lumber job to the railroad station, i-omiK'tisation will be awarded. 

Claimant represented liy WatiouK, Miirsh & Crichton, Wellsboro. 
Defendant repienented lv A. H. Dunsruore, Wellsboro. 

OPINION BY COMMISSIONER HOUCK— June 1, 1921. 

The claimant's deceased husband was employed by the defendant 
to assist him with work on the defendant's farm. The defendant was 
also the owner of four timber tracts containing about twenty acres 
and estimated at about 200,000 feet board measure of lumber. The 
defendant paid $2,000 for this timber and after the purchase he and 
one, Minor Gerow, entered into a partnership for the purpose of 
manufacturing the timber into lumber. The partnership agreement 
provided that the defendant should receive the purchase price of the 
timber; that each of the partners should receive a fixed rate per day 
for his own labor and that of his teams and employes, and that any 
profit should be divided equally l>etween the two. After the claim- 
ant's deceased husband had been working on the defendant's farm, 
he was directed by the defendant to haul rollers and bark from the 
lumber job to the railroad station and the defendant furnished him 
with a team for this purpose. The bark had been sold and the de- 
cedent was hauling it to the railroad for shipment. On October 16, 
1920, the decedent left the lumber job with a load of bark and some- 
time later he was found dead upon the public highway. His body 
had the appearance of having had the wheel of the wagon pass over 
it between the shoulders and the head. There was an extensive 
laceration of the flesh of the face, from the chin to the ear, and a 
fracture of the vertebrae in the region of the neck. These injuries 
were the cause of death. Nobody saw the happening of the accident 
but the conclusion is irresistible that the decedent met his d»:ith by 
falling from the wagon and being run over by it. The Referee found 
that the decedent met with an accident while in the course of his em- 
ployment as a teamster for the defendant, which resulted in his death, 
and he accordingly awarded compensation. The defendant has ap- 
pealed from the award alleging five exceptions to the Referee's find- 
ings of fact and nine exceptions to his conclusions of law. 

All the exceptions might be reduced to three; namely, that the 
Referee erred in not finding that the partnership existing between the 
defendant and Minor Gerow was liable instead of the defendant 



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176 

individually; second, that the Referee erred in finding that the de- 
cedent was not engaged in agricultural pursuits; third, that the 
Referee erred in not finding that the employment was casual in 
character and not in the regular course of the business of the 
employer. 

As to the first ground of appeal, the evidence shows that the de- 
cedent was not employed by the partnership but was employed by the 
defendant individually as a teamster for the purpose of hauling the 
bark. He was paid by the defendant and was answerable only to the 
defendant, and under all the facts of the case, the defendant is 
liable if there is any liability. 

As to the second ground of appeal, the Board is convinced, after a 
careful review of all the evidence, that the Referee did not err in 
finding that the decedent was not engaged in agricultural pursuits. 

The selling of the timber, which the defendant bought, was not 
connected in any way with the conduct of his farm. There is some 
evidence that the defendant purchased the timber for the purpose of 
securing enongh lumber to construct farm buildings, but it is also 
admitted that he intended to sell the balance of the lumber in order 
to make a profit. As far as the timber operation is concerned, the 
defendant stepped outside of his business as a farmer and became en- 
gaged in a business unrelated to agriculture. Therefore, he is liable 
under the Compensation Act for any injury which might have happen- 
ed to any of his employes engaged in the timber operation. 

Nor was the decedent's employment on the timber casual in char- 
acter and not in the regular course of the business of the employer. 
The defendant, at the time of the acicdent, was engaged in the busi- 
ness of cutting and selling timber, and in that business it was neces- 
sary that the timber be hauled to the railroad for shipment. The de- 
fendant contracted to do this hauling, and he thereby made the haul- 
ing of the timber his business. Since the decedent was an employe of 
the defendant and was killed while in the regular course of the defend- 
tan'B business of hauling timber, his dependents are entitled to com- 
pensation. 

Since there is no error in the Referee's disposition of this case, 
the findings of fact and conclusions of law of the Referee are affirmed 
and the appeal is dismissed. 



Norcross v, S. P. Mayer Brick Co. 

Dependency — I'osthamuous child. 

(ik of a deceased employe, who was killed in the course of his em> 
irries before the birth of a poatliumuous child, such child is entitled 
i miller the provisions of Section 307 of the Workmen's CompeniH- 



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Claimant represented by F. A. Amnion, Pittsburgh. ■■< 
Defendant represented by II. M. Hose,, Huntingdon. 

OPINION BY COMMISSIONER JIAKRETT— June 3, 1921. 

Is a posthumous child of a deceased employe entitled to compensa 
tion if ihe mother, the widow of the deceased employe, re-marries be- 
fore the birth of the child and at the time of its birth is being sup- 
ported by her husband? This is the question raised by this appeal. 
Keferee Christely decided the question in the affirmative and with 
him we agree. 

Section 307 of the Workmen's Compensation Act is in part as fol- 
lows : 

" . . . The terms "child" and "children" shall 

include stepchildren and adopted children and children 
to whom he stood in loco parentis if members of dece- 
dent's household at the time of his death and shall include 
posthumous children ..." 

Counsel for the defendant contends that the child's right to com- 
pensation is barred by the re-marriage of the widow, for the reason 
that upon her re-marriage her husband assumed all obligations for 
its support aud maintenance. 

It may be that these obligations were assumed as stated, but it 
does not follow that the child's right to compensation is barred. The 
wording of the Act is plain that it is entitled to compensation ; no 
change of status of the widow can bar this right. The Act is so 
plain that we see no need for further discussion. 

The findings of fact, conclusions of law and award of the Referee 
are sustained and the appeal dismissed. 



Tomcheck v. Pittsburgh Coal Co. 

Findings of fuct-~-WegUrct of Referee to find material faets. 

When the Referee neglects to find certain fact* which tlie Board deems material, 
the Anilines of fact of the Referee will be disregarded and oilier findings substituted 
as provided by Section 423 of the Act of Ifllft, P. L. 642. 

Medical services— Failure of employer to furnish — Reasonahlv time. 

Where the employer's physician could not be loeatcil nt the lime of the accident, 
the claimant will be reimbursed for tbe expense of hiring another doctor, and will 
also be reimbursed for the medical expenses incurred during the first thirty days 
after [he accident when the employer fails to furnish medical attention. 

Claimant represented by David Hickey, Pittsburgh. 
Defendant represented by George T. Emery, Pittsburgh. 



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OPINION BY COMMISSIONER JARRETT— Jnne 3, 1921. 

Upon examination of the record, we find that the Referee haB ne- 
glected to find certain facts which we deem material. We will 
therefore disregard the findings of fact of the Referee and will sub- 
stitute the following facts, as provided by Section 423 of the Act of 
1919, P.L. 642. 

FINDINDS OP FACT. 

1. The record shows that the claimant, John Tonichock, was em- 
ployed as a miner by the Pittsburgh Coal Co., at its Crescent mine 
on March 4, 1920 at an average weekly wage in excess of {20 per 
week, and while in the course of his employment he sustained an in- 
jury, to-wit, the big toe of his left foot was crushed. * As a result of 
the injury he was totally disabled. On March 1.4j 1920, Compensation 
Agreement No. 925931 was entered into between the claimant and the 
defendant, agreeing upon a weekly compensation of $12 per week ; 
compensation was paid under said agreement from ten days after 
the accident until April 10, 1920, a period of four weeks, the compen- 
sation paid totaling $48. The claimant fully recovered from the in- 
jury sustained by the accident and on September 1, 1920, signed a 
final receipt. On January 13, 1921, the claimant filed a petition to 
review, which is before us, alleging that he was under the impression 
that the defendant would reimburse him for the amount he expended 
for the services of his doctor daring the first thirty days of his dis- 
ability. 

2. That at about 11:30 A.M. on the day of the accident the claim 
ant was given first aid at the mine foreman's office of the defen- 
dant and was then taken to his home which was between three and 
five miles from hie place of employment. Before being taken to his 
home effort was made to get Dr. Farquhar, defendant's physician, to 
attend the claimant but he could not be located. About 12 o'clock 
the day of the accident, after the claimant arrived home, application 
was made to the defendant for medical services but Dr. Farquhar 
could not be located. The pain became worse and at 4 o'clock appli- 
cation for medical services was again made to the defendant with 
the same result. Dr. R. W. Smith, whose office is between three and 
five miles from the home of the claimant, was then called. Dr. Smith 
arrived at the claimant's home about 4:45 P.M., the same day, and 
found one of the main arteries of the toe bleeding. The doctor re- 
moved part of the nail and some braised flesh, and continued to 
treat him from said date, to-wit, March 4, 1920 to April 12, 1920, 
making nine visits to the claimant's home, for which he charged $10 
for the first visit, which was the usual and customary charge of phy- 
sicians in that vicinity for like services, and $5 each for the other 



179 

eight visits. The claimant then went to Dr. Smith's office six times, 
fox which the doctor charged the sum of |1 for each visit. All the 
medical expenses thus rendered Amounted to $56 which was paid by 
the claimant's father, but the medical expense for the first thirty 
days amounted to but 1 53. 

3. On the evening of March 4, 1920 about 6 P.M. Dr. Farquhar, 
the defendant's physician, came to the home of the claimant and ten- 
dered mediral services and offered $2 to defray the expense of the 
first visit of Dr. Smith. The whole offer was rejected for the reason 
that it was not known what Dr. Smith's bill would be. The claim- 
ant's father told Dr. Farquhar to settle with Dr. Smith, which he 
made no attempt to do so far as the testimony shows. Dr. Parqn-. 
har, although offering to treat the claimant, never returned. 

4. We find as a fact that the service rendered by Dr. Smith brought 
a good recovery and that the charge made by him of $10 for the first 
visit and $5 for other visits to the home of the claimant and the $1 
charged for visits of the claimant to the office were the customary 
and usual fees charged by physicians in that vicinity for like ser- 
vices and were not unreasonable. 

5. We further find as a fact that the defendant had notice that 
this was sncb an injury that needed medical services and further 
that each time application was made for medical services, the claim- 
ant's condition, due to the accident, was such as needed medical 
services. 

Bison ss ION. 

It is contended by the defendant that inasmuch as Dr. Farquhar, 
its physician, offered to pay $2 for the first visit of Dr. Smith and 
offered future services, and the claimant having refused the whole 
offer, it is such a refusal on the part of the claimant as to relieve the 
defendant of its liability under the Act The part of the Act appli- 
cable here is Clause E of Section 306 and is as follows: 

"(e) During the first thirty days after disability 
begins the employer shall furnish reasonable surgical 
and medical services, medicines, and supplies, as and 
when needed, unless the employe refuses to allow them 
to be furnished by employer . . . If the employer shall, 
upon application made to him, refuse to furnish such 
services, medicines, and supplies, the employe may pro- 
cure the same, and shall receive from the employer the 
reasonable cost thereof within the above limitations." 
It is to be noted that the services to be famished are to be "re- 
asonable" and are to be furnished "as and when needed." It follows 
then in our judgment that it is the duty of an employer to furnish the 
services within a reasonable time after notice of the accident or after 
application made, the promptness with which the services most be 

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ISO 

furnished -to depend upon the circumstances; that is, the "need* of 
the services. 

It is true that the defendant, like many other employers, have 
skilled surgeons and physicians in its employ to care for the injured 
hut it does not follow by reason of this that an injured empoye is to 
wait an unreasonable time on the employer to furnish the services, as 
the law contemplates, as stated, services "as and when needed," to be 
furnished within a reasonable time after notice of the accident or 
after application made. It is the duty of the employer, if one of its 
surgeons or physicians cannot be procured, to send an outside phy- 
sician or surgeon; the services must be furnished as stated. If the 
employer neglects or delays, as in this case, for an unreasonable time 
in sending such, aid to the injured employe, it is our opinion that 
such neglect or delay is to be considered as a refusal and such a re- 
fusal as to justify the employe to procure his own services, but under 
circumstances as here, if the employer sends it physician or surgeon 
and the employe has already been cared for by another procured by 
him and the employer's physician or surgeon offers an adequate 
amount to pay for the services of the one called by the employe and 
offers to furnish future services, it is the duty of the employe to ac- 
cept the offer and a refusal to accept the offer is to be considered such 
a refusal as to bar the employe from recovering the medical expense 
from the employer, bnt if the employer's surgeon or physician does 
not offer an adequate amount to pay the physician called by the claim- 
ant and future services, the employe is justified in refusing the offer 
and is entitled to recover the amount expended by him for the ser- 
vices from has employer. 

CONCLUSIONS OF LAW. 

The claimant having met with an accident while in the course of 
his employment with the defendant, as contemplated by the Work- 
men's Compensation Act of 1915 and its amendments, and the de- 
fendant, after application made to it, having, under the circumstan- 
ces, refused to furnish medical services as provided by the Act. the 
claimant Is entitled to recover from the defendant the amount ex- 
pended by him, to-wit, $53, for the medical services needed and pro- 
cured by him during the first thirty days after his disability began. 



The Board accordingly awards to John Tomcheok, claimant, against 
The Pittsburgh Coal Co., defendant, the sum of $53 for medical ser- 
vices rendered the said claimant during the first thirty days of his 
disability. 



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181 
Brick v. David Lupton Sons Co. 

Final receipt — -TYken set aside — Partial dimbitit y. 

A final receipt which was signed throe months previous to tlip date thori'Oii, will 
be set aside when the employe Is not able to return to work and perform his former 
duties, owing to his physical condition whan the date specified in the final receipt 

Claimant not represented. 

Defendant represented by Frank L. Ward, Philadelphia. 

ORDER BY THE BOARD— June 10, 1821. 

The petitioner, Louis Brick, was very seriously injured while in the 
employ of the defendant, David Luptons Sons' Co., whose insurance 
carrier was then, and is now, the Aetna Life Insurance Co. 

A compensation agreement was entered into in consequence of 
the said injury, and approved by the Workmen's Compensation Board 
on December 19, 1918. Compensation was regularly paid under the 
said agreement tip to June 16, 1920, when, in consideration of a lump 
sum payment of |150 the insurance carrier persuaded the injured 
workman to sign a final receipt in which it was stated that his dis- 
ability had ceased on September 19, 1920, and that he had gone to 
work on September 20, 1920. Thus, in this paper called "the final 
receipt" was a statement anticipating what the man might do in 
about three months hence. 

As a matter of fact, at the time the final receipt was thus executed 
under the circumstances described, the workman had not recovered 
sufficiently to return to his former occupation and neither had he 
k-> recovered when September 19 arrived. The petitioner then en- 
tered upon the only work that he could do, some time in July, and 
continued in that occupation until lAlugust. This work was of a " 
very unimportant and menial character, but was all his physical con- 
dition would allow him to do. It consisted of cleaning up about the 
employer's premises and doing little odd jobs that did not subject 
his injured hip to any physical strain. His wages at this work were 
$15 per week. 

True to his declared intentions, on September 20 the petitioner 
made an attempt to do work assigned to him, which was of a heavy 
and laborious nature. He persisted in his efforts for four hours, and 
(hen was compelled to quit work because of his physical condition. 

There is no evidence before this Board showing that his present 
condition is any different than it was during July and August of 1920. 
The Board has held several meetings to ascertain the true facts of 
[his case and subjected f lie petitioner to various physical examina- 
tions, and extended every opportunity to the insurance carrier to pre- 



182 

sent evidence that would protect its interests in every possible way. 

We find, however, as a fact, that the final receipt did not represent 
the true state of facts at the time it was executed and muat be taken 
only as a receipt for money actually received and not as a final ac- 
ffuittance of liability either to the defendant or the insurance car- 
rier. We find that this payment, however, paid the compensation up 
to September 20, 1920. In the meantime, the petitioner has proved 
his earning capacity upon which the Board can reliably estimate his 
partial disability. We find he has an earning ability of f 15 a week 
His former wages, under the compensation agreement, were $23.65 » 
week, which entitles the petitioner to partial disability from Septem- 
ber 20, 1920, to the present time, and as long as his condition remains 
as it is now, of $4.32 per week. 

The final receipt is set aside, the compensation agreement is re- 
vived as of September 20, 1920, subject to the modifications of this 
order. 

And it is so ordered. 



Dull r. Rohn Bros. 

Medical terrier* — When performed more than thirty daps after aeiidrul, widow 

Where an employe dies more than thirty days after sustaining an accident at 
work, his widow is not entitled to receive an award for medical services as provided 
by Section 308. Clause "E," of the Workmen's Compensation Act. If any right 
(o recover ciists, it resfs with the personal representative. 

Claimant represented by Orrin Searfass. Easton. 
Defendant represented by Nicholas Dano, Scranton. 

OPINION BY COMMISSIONER JARRETT— June 10, 1921. 

The husband of the claimant was injured on August 5, 1920, and 
died on November 8, 1920. He was paid compensation for nine weeks. 
$108. 

It appears from the record that during the first thirty days of dis- 
ability the hospital and medical services amounted to $112 and after 
30 days of disability the "sickness", a result of the accident, set in 
whir.* <:aused his death. 

The Referee awarded $100 for "hospital treatment and surgical 
supplies" procured by the deceased during the first thirty days of dis 
ability; $100 for the expense of the last sickness and bnrial; $15.10 
costs, and compensation to the widow from November S, 1920 to 
September 34, 1922 at the rate of $10 per week, and from September 



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15, 1922 to June 6, 1926 at the rate of $8 per week, the latter date 
being the date nine weeks before the expiration of the widow's 300 
week period. ' 

The defendant has appealed and contends that the Referee erred in 
awarding }100 for "hospital treatment and surgical supplies" during 
the first 30 days, in addition to the $ 100 for the expenses of the last 
sickness and burial. 

There are two instances made plain by the Workmen's Com- 
pensation Act when an award can be made for medical services, etc., 
the one nnder Section 30fi, Clause (e) of the Act ; here to the employe 
for medical services, etc. during the first thirty days of disability ; the 
other under Section 307, Subdivision 7 of the Act; here to the de- 
pendents or the personal representative of the employe for expense 
of "last sickness and burial! Therefore the claimant is not the 
proper party to file a claim for medical expense, etc. daring the first 
thirty days of disability as this right was in the deceased. 

The last sickness not setting in until after the expiration of the 
first thirty days of disability, it is an open qneston as to whether or 
not the amount as provided by the Act for the expense during the 
first thirty days of disability can be recovered from the defendant. 
If the defendant is liable the right to recover is in the personal 
representative of the deceased. As to whether or not it is liable is 
a question for future consideration. 

The defendant is of the opinion that we must take into consider- 
ation the money value of compensation paid the deceased in his life 
time. This is not the case. 

"The language of the clause under interpretation 
clearly indicates that the intention of the Legislature 
was that the deduction should not be as to the money 
equivalent of the time period already paid, but should 
be an actual deduction of the time period itself, for the 
law speaks for a period rather than an amount." Gor- 
ence v. F. A, Mizener Coal Co., 2 Board Decisions 467 ; 
3 Dept. Reports 3312. 
In accordance with what we have set out, we will modify the award 
by striking out the |100 awarded for the "hospitaf treatment and 
surgical supplies'' during the first thirty days of disability; and the 
record not showing that notice was served on the defendant as to the 
costs as provided by the rule of the Board, we will modify the award 
by striking out the |15.]0 awarded for costs. 

With these modifications, the findings of fact, conclusions of law 
and award of the Referee are sustained and the appeal dismissed. 



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184 

Richards v. Philadelphia & Reading Coal & Iron Co. 

Course of employment — Injury ichUe playing at noon hour. 

Whore a breaker boy was injured while playing with a rock car on the employer's 
premises at noon hour, compensation will he awarded when the evidence shows that 
tliia was the daily noon hour sport of the breaker boys, and was never forbidden by 
the defendant. 

Claimant represented by Roger J. Dever, Wilkes-Barre. 
Defendant represented by B. D. Troutman and John P. Whalen, 
Pottsville. 

OPINION BY MACKBT— June ltt, 1921. 

HEARING DE NOVO AT POTTS VI MJ3 

At the hearing the testimony originally taken iH'fore the Referee 
was adopted by agrement of counsel and no additional testimony 
was offered. 

FINDINGS OF FACT. 

1. That on March 22, 1920 the claimant was in the employ of the 
defendant company as a slate picker at its Phoenix Part colliery, 
located at or near Llewellyn, Schuylkill county. 

2. That during the lunch period at about five minntes before 
time to resume work on the day and date above written, the claimant 
and three other boys pushed a mine car that was used to haul rock 
to a dump, up to the summit of the incline plane and jumped upon 
it and started it down the plane on the other side. When near the 
bottom of the plane they jumped off. The claimant had a sprag in 
his hand with which he made an effort to sprag the car. As he did 
so the sprag caught 'before it left bis band, twisted and fractured 
his right wrist. 

it. That the accident to the claimant happened on the premises 
of the employer, at a point from one hundred to one hundred and 
fifty feet from the breaker in which he worked. 

4. That the* claimant reported to the "breaker boss*', John 
O'Neill that he broke Mb wrist. However, he went into the breaker 
and tried to pick slate, but was unable to nse his hand. He re- 
ported his inability to work to the "chute boss" and then went home. 

5. That it wa.s almost the daily habit of many of the boys who 
carried their lunches and worked at this colliery to indulge in this 
fcport during the noon lunch period. 

6. That the claimant and three of the witnesses of the defendant 
company testified that they were never admonished from engaging 
in this pastime by the colliery authorities. This was about the 
only exciting sport they could engage in at this season of the year. 



185- 

7. That the defendant company had knowledge of the accident 
the day it occurred. It did not furnish surgical treatment to the 
claimant, woo had Dr. G. A. Mefkel of Minersville, to set the 
fractured member. On March 24, the claimant went to the of- 
fice of Dr. E. L. Straub, Minersville, a compensation physician of 
the defendant company who treated him until April 25, 1920, but 
not as a compensation case. 

8. That Dr. Merkel's bill for setting the fracture was $10 and 
Dr. Stranb's bill for the first thirty days after disability was $9.50. 
Neither of these bills were paid. 

9. That the weekly wages of the claimant were $15.09 and were 
paid semi-monthly. 

10. That the claimant fully recovered from the disability caused 
by the accident and returned to his work for the defendant company 
on April 25, 1920, at the same rate of wages. 

11. That Article III of the State Workmen's Compensation Act 
applied to contract of hiring that existed between the parties at 
the time of the accidental injury sustained by the claimant. 

AWARD. 

In compliance with provisions of Article III, Section 306, Clause 
(a), of the Act, we hereby award the claimant compensation at the 
rate of 60% of $15.09 or $9.05 per week from April 1, 1920 to April 
25. 1920, a period of 3 weeks and 3 days, or the sum of $31.03. 

In addition to above, claimant is awarded $19.50, covering medi- 
cal and surgical treatment for the first thirty days after disability. 



Carlin v. Coxe Bros. & Co. 

Iliac abscess — Resulting form accident. 

Where deceased was squeezed by a car and had two ribs fractured, later dying 
from an iliac abscess which wax the result of internal injuries received at the time 
of thr accident, compensation will be awarded. 

Appellant represented by D. W. Kaercher, Pottsville. 
Appellee represented by Roger J. Dever, Wilkes-Barre. 

OPINION BY MAOKEY— Chairman— June 14, 1921. 

HKARINO UK \OVO. 

When this case was first before the Compensation Boaid, a hear- 
ing de novo was granted and after hearing all the testimony in the 
nine, we disallowed compensation because we were convinced that 
Hie death of decendent on June 5, 1919 from iliac abscesses was 



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ISfi 

not the result of a fracture to tlie ribs on March 27, 1919, nor of 
infection naturally arising therefrom, but occurred from natural 
causes. A petition for reargument was filed by the claimant which 
was pressed so vigorously that we referred the wbole record of the 
case to a disinterested medical expert, who rendered an opinion 
which was incorporated in the order of the Board on November 24, 
1920. The final testimony in the case was taken on May 26, 1921, 
as Bhown by the evidence incorporated in the record. The delay in 
the case was due to a combination of events over which neither the 
claimant nor the defendant had exclusive control, for the reason 
that each at various times asked that the hearing be continued for 
various reasons. As a result of this testimony we find the follow- 
ing medical facts: 

1. Peter Carlin, deceased husband of the claimant, was employed 
as a night watchman by the defendant company at the Beaver Dam 
colliery; on March 27. 1919, he was struck by a steel gondola loaded 
with coal coming out from the breaker, and squeezed between the 
car and a foundation nearby. He fell to the ground across a dinner 
pail which he was carrying under his arm at the time of the acci- 
dent. 

2. His injuries consisted of: 

(a) Fracture of the eighth and ninth ribs on the left side in the 
axillary line. 

(b) Internal injuries in the right side of the body giving rise 
to a haematoma, caused either by a blow against the side or back 
by the moving car, or by the squeezing force exerted between the 
car and foundation. At the time of the injury, there was no visible 
evidence of a bruise, but marked shock occurred of greater severity 
than would result from a simple fracture of two ribs alone. 

3. Healing of the fractured ribs progressed normally and union 
was completed in eight weeks. 

4. However, the patient's general condition did not improve, 
he ran a temperature for a few days, he was confined to bed for 
weeks because of marked weakness. Condition pointed to .a com- 
plication which was not associated with the. fractured ribs and 
which did not manifest itself until an abscess appeared in the right 
iliac region in the latter part of May, 1919. This abscess ruptured 
spontaneously and discharged considerable puss. Retrogression was 
rapid and death occurred on June 5, 1919. 

5. There is no history of any injury between March 27, 1919, and 
June 6, 1919; nor does the testimony show that the abscess resulted 
from natural causes. 

6. The death of the decedent on June 6, 1919, from an iliac 
abscess was the result of internal injuries received March 27, 1919. 



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187 

7. The claimant was living with the deceased at the time of his 
death, was his lawful wife, and was dependent upon him for sup- 
port. 

8. Both the claimant and defendant at Hie time of the accident 
which caused the decedent's death were hound by the provisions of 
Article III of the Compensation Act of 1915. 

9. The decedent's wages at that time were more than $20 per 
week, payable semi-monthly. 

10. The funeral expenses were $192, no part of which has been 
paid by the defendant 

11. The accident to the claimant as described in the testimony 
occurred while the claimant was in the course of his usual occupa- 
tion for the defendant, upon the defendant's place of business, and 
consisted of violence to the physical structure of his body as con- 
templated by the Workmen's Compensation Act, which occurred 
on March 27, 1919. The deceased died as a result thereof on June 
5. 1019. 

AWARD. 

There is awarded to the claimant, Ellen Carlin, as against the 
defendant Coxe Bros. & Co., 40% of $20 or $8 per week for three 
hundred weeks. Payment to begin as of June 1!), 1019. 

In addition to the above the defendant to pay $100, covering last 
sickness and burial expenses. 



Norman 'v. Oliver Iron & Steel Co. 

Practice and procedure — Burden of pi-oaf — Failure to meet. 

Whery deceased died us a result of blood slrcnm infection, or streptocosis. hut the 
evidence, fails to show any injury in the course of his employment, compensation 
will be refused. 

Appellant represented by W. H. Dithrich, Pittsburgh. 
Appellee represented by John T). Turner, Pittsburgh. 

OPINION BY MACKEY— Chairman— June 25, 1921. 

HEARTNO DE NOVO 

At the hearing dc nnro Evan Lewis, who had testified before the 
Keferee that some time in July 1920, Earl Norman, the deceased, 
son of the claimants had told him that a piece of steel had entered 
his hand, and that his boss. Jack Hutchison, had taken it out, ex- 
plained that this accident was in the latter part of June, 1920, and 



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this testimony was followed by a statement of W. H. DiUirich, at- 
torney for claimants, that compensation was not based upon this 
particular incident, and therefore the testimony of the witness, Evan 
Lewis, should be eliminated from the record. 

The testimony taken before the Referee, by agreement of the 
parties, was adopted by the Board as though taken before it at this 
hearing de novo. There is no. question but that the boy died as a 
result of blood stream infection, or streptocosis. We have searched 
the record in vain to find some substantive testimony upon which 
we could conclude that the boy had suffered an accident in the 
course of his employment. Originally, the witness Evan Lewis, just 
referred to, had testified as to a conversation that he had had with 
the deceased in regard to the deceased suffering an accident to bis 
finger. This incident was denied by the boy's immediate boss, or 
assistant foreman. Mr. Hutchison; and later, a*$ we have just stated, 
the testimony of the witness was removed entirely by his own state- 
ment and admission of counsel for the claimants. 

We cannot find any testimony except the statements of the 
parents to the physician, and also some testimony by the boy, as to 
any injury. This situation does not satisfy the law of evidence, 
and we are constrained to find that there is nothing in the record 
upon which we can determine that any accident ever took place. 
Even if no witness had actually seen the occurrence, had the boy 
immediately reported to his superior officer that he had suffered an 
accident to bis finger, and displayed the same, and sought treat- 
ment, Buch conduct being natural and in accordance with ordinary 
human experience, we would have concluded that the fact of an 
accident had been established. But there are no such elements in 
this case. Therefore, compensation must be disallowed, because the 
claimants have not met the burden of proof in this, particular. 
Compensation is refused. 



Speaker v. American Reduction Co. 

Evidence— Failure to nhow accident. 

Wlwre the deceased, a garbage ean inspector, fell on an icy pavement, and later 
died of acute nephritis with peritonitis, compensation will be disallowed when the 
evidence fails to show such un accident, and the cause of his death could not be 
attributed to such an accident, if it had occurred. 

Claimant represented by II. J. Nesbit, Pittsburgh. 
Itefendnnt represented by S. T. Patterson, Pittsburgh. 



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189 
OPINION BY MAKEY— Chairnian^June 14, 1921. 

George B. Speaker, the husband of the claimant, died on Janu- 
ary 25, 1920, at the age of 5T. At that time he was an employe of 
the American Seduction Co. He was inspector of garbage cans, and 
his duty took him out upon the street. He left to survive him a 
wife, Amy F. Speaker, the claimant, who was dependent upon him 
at the time of his death. 

The claimant, maintains that her husband was injured on Janu- 
ary 21, 1920, by falling on an icy pavement in the city of Pittsburgh, 
sustaining an injury to his hand. 

Upon the death of the deceased the attending physician issued a 
death certificate setting, out the cause of death as acute nephritic 
and mitral regurgitation. This physician, however, somewhat modi- 
fled this death certificate in his testimony as death from acute 
nephretis with peritonitis, 

There are two controlling reasons why we must refuse compensa- 
tion: First, because there is no such certainty that the deceased 
suffered an accident described with any such particularity and cor- 
roborated by such substantive evidence as will justify an award of 
compensation upon the same. While we have gone a great way in 
relaxation of the rigors of the old rules of evidence, we would not 
be justified in basing an award of compensation upon any such testi- 
mony as can be found in this case. There are no circumstances 
that can be said to corroborate the hearsay evidence that has been 
here introduced. And secondly, we cannot find, even upon the sup- 
position that the accident has been accurately described, and did 
actually occur, that death followed from this cause. We have a 
typical old man suffering with arterio sclerosis and the general 
debility of age suddenly breaking down with an acute attack of 
nephritis, the heart yielding to the sudden stress placed upon it. 
and death naturally following as a consequence thereof. 

Compensation is disallowed. 



Snyder v. Wolverine Supply & Manufacturing Co. 

Erythema— Wken resulting from natural cauacn. 

Where claimant whs suffering with searljitinu form erythema, which could only 
result from his employment by a cut or cuts, compensation will be disallowed when 
the evidence failed to show any evidence of cuts whatsoever. 

Claimant not represented. 

Defendant represented by Chas. M. Smith, Pittsburgh. 



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190 
OPINION BY MAKEY— Chairman— June 14, 1921. 

By agreement of the parties the testimony that had been previ- 
ously taken before the Referee was adopted as though taken by the 
Board- each side to have an opportunity to present whatever evi- 
dence it might desire. 

Taking advantage of this opportunity the defendant called Dr. 
Stanley Crawford, who testified mainly as he did before the Refer- 
ee, except that he examined the claimant on January 6 iast and 
found him suffering with scarlatina form erythema. The claimant's 
condition indicated that he had experienced an exfoliation of the 
skin, superficially, of the arms, face, anterior trunk and both the 
palma and soles. 

It is clear from the medical testimony that the only way in which 
the claimant could have suffered this condition in consequence of 
his employment for the defendant would have been by first receiv- 
ing cuts upon his hands, and then some form of germ poisoning 
entering his body through these cnts as portals of entry. These 
germs of infection might have been in the dust in the bin, or on 
the material which he handled. 

This is a very refined theory to account for the physical mani- 
festations of the claimant, which could be accounted for more natur- 
ally and scientifically as an ordinai-y skin infection suffered by hun- 
dreds of people without the experience of this employe in the course 
of his employment. . 

It became necessary for the claimant to testify that there were 
cuts on his hands in order to account for his physical phenomena. 
We find, however, the more reasonable statements of fact in the 
testimony of Miss Mueller, the nurse, on page 34 of the notes of 
testimony, where she says: "He showed me his hands, and they had 
apparently little blisters on them which resembled poison ivy, to 
me. and they discharged crystal white serum." Her testimony is 
also corroborated by Joseph H. Richards, superintendent in charge 
of the defendant's work, who said he saw pimples and eruptions 
upon the claimant's hands without any evidence of cuts whatsoever. 

It is the opinion of the Board that the claimant did not suffer 
any accident in the course of his employment, and the physical mani- 
festations to which he testified were due to natural causes, and were 
not the result of any injury received in the course of his employ- 
ment, and compensation is disallowed. 



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191 

, Susich v. Jones & Laughlin Steel Co. 

Final receipt — When set aside — Low of use of eye. 

A final receipt will be set aside when it is afterwards determined that tile claim' 
ant had lost the usa of his eye at the time be signed it, which fact was not deter- 
mined no til a later date. 

Permanent injuria — When Board will find. 

While there is any hope of an injured member yielding- to medication, the Bonrd 
will never find a permanent Iocs of the nan of that member, and it it is Inter shown 
that the loss is permanent, the agreement will be so modified. 

Appellee represented by W. S. Maxcy, Pitteburg. 
AppellaDt represented by Frank M. Painter, Pittsburgh, 

OPINION BY MACKEY— Chairman— June 14, 1021. 

After having filed a petition for compensation for an accident 
suffered in the course ofhis employment for the defendant company, 
claimant entered into a compensation agreement No. 919188 with the 
defendant company, and in the same stipulated that he had returned 
to work on March 8, 1920. 

On October 28, 1920, claimant filed a petition to review said 
agreement, containing this statement and the final receipt setting 
out: "That when I signed final receipt my disability bad not ceased. 
I ask your Honorable Board to set aside final receipt as my injury 
to my eye has increased to the extent that I have lost the use of 
right eye. * • • That when I was in the hospital I received com- 
pensation . and signed final receipt in which I did not know that my 
compensation would stop." 

An answer was filed denying those allegations. Testimony was 
taken, and the petition for review dismissed. Subsequently a peti- 
tion for reinstatement of tbe agreement under the terms of the 
amended Act was filed. This was referred to Referee Snyder and 
testimony was taken 1 hereunder and an order was made by the 
Referee as follows: 

"The final receipt is ordered set aside and compensa- 
tion reinstated as of March 8, 1920, to run for a period 
of 125 weeks, for the loss .of the claimant's right eye, 
defendant taking due credits for compensation already 
paid tinder the above agreement." 

Objection to this order is now raised by the defendant on the 
ground that the testimony before the Referee did not indicate that 
there was any change in the condition of the eye from the time that 
the first petition to review the agreement was dismissed, up to and 
at the present time. 

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192 

As a matter of fact, the Referee in hie report states that two 
physicians testified that there waB do change in the status of the 
eye from the time they had examined it under the first proceeding 
and up to the present. 

The Referee based his order upon the testimony of Dr. B. E. E. 
Wible, who testified before him as follows: 

"In the right eye I found the pupil irregular, due 
to adhesion against the front part of the eye on the 
outer side — we speak of it as the temporary side of the 
eye — and on taking his vision X found what we speak 
of as four two-hundredth s — that is, letters which should 
be seen at 200 feet he would see at i feet. I tried to 
improve him with glass and it was impossible — couldn't 
improve his vision with glass." 

1'he report also states that Dr. Wible testified before him that 
tnis condition could not be remedied— that it was a permanent con- 
dition — and was the result of an injury to that member. 

As we viewed this case when it was before us before and the eye 
was subjected to the examination of the two doctors who testified 
recently before the Referee, the eye was in such an injured condi- 
tion that it could not be definitely determined that there was n. 
permanent loss of the'use of the member. While there is any hope 
of an injured member yielding to medication the Board will never 
find a permanent loss of the use of that member. The employer is 
entitled to have every such doubt resolved in his favor while medi- 
cal treatment is being furnished, and it is only after a complete 
demonstration of the fact that medical science can no longer al- 
leviate the condition that we will find the permanent loss of the 
use of any particular member. 

The amended Act was drawn in conformity with all our decisions 
which have been sustained by the courts of every jurisdiction where 
they have been heard, and finally by the Supreme Court in Hughes 
v. American International — not yet reported — that these agreements 
are flexible, elastic instruments, entirely within the control of the 
Board during their statutory life. This is so because it becomes 
our duty to suspend compensation in favor of the employer when 
the facts of any particular case 'justify such procedure. Likewise, 
it will also become our duty to revive compensation when time and 
experience and medical treatment have demonstrated the fact that 
there has either been a i-ecurrence of disability, or the certainty of 
the permanent loss of some particular member. 

This is the situation in this case. There was some doubt about 
the loss of the us,e of this eye when the matter previously was be- 
fore us. Time alone could solve the question. We gave the employer 



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ids 

the benefit of that time, and now the Keferee has found, — from per- 
fectly competent testimony — which, as a matter of fact, is not 
denied — that. this claimant has lost the use of this eye through the 
accident for which this compensation agreement was executed. 

Therefore we find as a fact. Under our powers under the amended 
act we supplement the findings of the Referee to the extent, that at 
tlie present time claimant has suffered the permanent loss of the 
use of his right eye in consequence of an accident which he exper- 
ienced in the course of his employment for the defendant company, 
which accident was 'described and provided for in the compensation 
agreement in this case. 

The final receipt was therefore executed under a mistake of fact, 
and must be set aside. The compensation agreement must be modi- 
fied, and by this order is modified to provide for the 1 loss of the use 
of the eye. The defendant is entitled to credit for payments al- 
ready made .■ 



Depietrantonia r. Kelly & Jones Co. 

Light work — Duty of employe to accept tcften partially disabled. 

Where mi employe whs injured by having a barrel full on bis toot, and was later 
given light work, which he was able to perform, it was his duty to aeeept the same, 
and if he does not accept the offer he is not entitled to have his agreement modified 

to provide for additional (Compensation. 

Claimant represented by Curtis (iregg, * Jreensburg. 
Defendant represented by James Balph. Pittsburgh. 

OPINION BY JIACKKY— Chairman— June 14, 1921. 

On December 7, 1020, this Board in an opinion by Commissioner 
J;irrett found as follows: 

"The claimant was injured January 2;t, 1020, while in the course 
of bis employment with the defendant company at its plant at South 
Greensburg. The defendant is engaged in the manufacture of valves, 
and iron fittings. The occupation of the claimant at the time was 
a pickler in its galvanizing department. The accident is described 
as follows: "Hook slipped off trunion while lifting barrel with 
electric hoist, allowing barrel to fall on his foot. Soft part of foot 
crushed. Bones hroken half way between toes and ankle of left 
foot." The testimony shows that the accident resulted in a fracture 
/if the second metatarsal bone of the injured foot, and soft part of 
the foot crushed. The claimant was in the hospital as a result of 
.the accident for about three weeks ; when lie iyas discharged, his foot 

13 



194 

was sore, considerably swollen. Tlie claimant was paid compensa- 
tion up to May 12, 1920. * * * The testimony shows that the 
claimant returned to work on March 23, 1920, and worked part of 
the time up to May 13, 1920, when he quit of his own free will. It 
is true that during this time compensation was paid him, and it is 
likewise true that during this time he worked at light employment, 
such as, we are satisfied from the testimony, he was able to do. 
The company was willing and is willing to give him employment 
such aB he can do. We think it was and is the duly of the claimant 
to accept the employment, as we are satisfied from the testimony 
that he is not totally disabled, and that he can do light work. 
The claimant is therefore directed to accept the employment. We 
will then be in position to determine his disability. The petition is 
dismissed without prejudice." 

On February 28 the claimant filed a petition for the modifica- 
tion of this order. The same came on for hearing on May 2, 1921, 
before Referee Henderson, who clearly, definitely and very ably 
reviewed the case, as evidenced by his findings of fact; and upon 
these findings he concluded: "The claimant's disability having 
ceased as of the date when he returned to work on March 23, 1920. 
and having no disability thereafter as a result of the injury he sus- 
tained on January 23, 1920, that would prevent him from working 
at the employment provided by the defendant company, he is not 
entitled to have Compensation Agreement Mo. 904408 modified to 
provide for additional compensation." 

The findings of fact and conclusions of the Referee are affirmed 
and the appeal dismissed. 



Shrope v. Pioneer Brush Washing Machine Co. 

Employer — What constitutes. 

Where a washing machine company, a corporation, for the purpose of advertising 
its eoods became interested in a laundry, it is not liable for the compensation due 
an employe of the laundry company who was injured during the course ef her 
employment, when the evidence shows that the corporation and the laundry were 
distinct bodies. 

Claimant represented by Charles H. Young, Pittsburgh. 
Defendant represented by O. M. Smith, New Kensington. 

OPINION BY COMMISSIONER JARRETT— June 15, 1921. 
HEARING DE NOVO 

It is contended by the defendant, the Pioneer Brush Washing 
Machine Co. that it is not the party liable for the payment of com- 
pensation under this petition. The defendant is a corporation or- 



195 

ganized under the laws of the State of Delaware and is engaged in 
the sale of a certain washing machine which is manufactured by a 
company known as the Vierling Machine Co. of Pittsburgh. Joseph 
Vierling is the secretary and treasurer of the defendant company 
and, it seems, is one of the principal owners of the Vierling Machine 
Co. 

It appears from the testimony that the defendant company was 
not having much success in the sale of the machines and the idea 
was conceived by Mr. Vierling to open a laundry and install the 
machines of the Pioneer Washing Machine Co., so that the machines 
could be demonstrated to the public. A partnership was formed 
hetween certain of the stockholders of the defendant company for 
the purpose of opening and operating the laundry. It was called 
the Brush System Laundry, Arrangements were made between Mr. 
Vierling and the stockholders of the defendant company who put 
money into the partnership, that he would guarantee their money 
by a certain number of shares of stock of the defendant company, 
which shares were owned by him. The parties interested in the 
partnership raised flfiOO. Mr. Vierling then engaged William E. 
Grazier to look for a place where a laundry could be opened and 
they finally opened the laundry at 114 Federal Street, N. B. Pitts- 
burgh. 

Mr. Vierling was not a member of the partnership but engaged 
Mr. Grazier for the partnership as its manager as he had been told 
by the parties interested in the partnership to do what he thought 
best to promote its interests. Mr. Vierling says that in engaging 
Mr. Grazier he did not do it for the defendant company but did it 
for the partnership; that the corporation was in no way connected 
with the partnership only that it was going to furnish the ma-hines 
and if the venture was successful, the partnership was to pay for 
them; that the corporation considered this a much cheaper means 
of advertising than to get into the newspapers and magazines. 

The business was operated for some time and it appears that it 
was not a successful undertaking; that on several occasion money 
was needed for the purpose of paying expenses and this money was 
furnished individually by Mr. Vierling. At no time did the defend- 
ant company pay any of the expenses of the partnership. 

When the laundry was ready for operation Mrs. Grazier engaged 
Ihe claimant to work in the laundry to demonstrate the washing 
machines. She says that she was employed and was working for 
the defendant company, but on cross-examination site stated in 
substance that she did not know for sure. 

Along about the 1st of September, while she was turning a 
spigot ou one of the wash-tubs, she so injured the thumb of her 






196 

right hand that a felon developed which finally resulted in the am- 
putation of the thumb. She was totally incapacitated aw a result 
of the injury, from Octolier 1, liHil, to August -, 1920, and she in- 
curred medical expense of *S;> account of the injury, during the first 
fourteen days of disability. 

We are satisfied that the claimant did meet with the accident as 
staled ; that she niel with it while she was on the premises of the 
Brush System Laundry at No. 114 Federal Street, X. S. Pittsburgh, 
while she was actually engaged in the furtherance of her employer's 
business, but after a careful consideration of Ihe record we are of 
the opinion thai the defendant company was not the employer; 
that she was in the employ of the Brush System Laundry, and we 
will therefore have to dismiss the petition. 

It is true that Mr. Vierling, who is the secretary and treasurer 
of the defendant company, did engage Mr. Grazier to open the lawn- 
dry, but it was at the suggestion of the partnership and was not 
an act of the corporation. It is to be noted that he was not only 
interested in the sale of the washing machines but in the manufac- 
ture of them also and it was therefore to his individual interest to 
see that the machine was so advertised as to increase the sale of 
the same, thereby increasing the output. This accounts for his 
activities in the partnership affairs. Again, if the partnership hat) 
been a success, it would only be the stockholders of the corporation 
who put their money into the partnership who would be benefited 
from its profits, and it is also noted that the loss suffered by the 
partnership was not borne in whole or in part by the corporation. 

We are satisfied that the partnership and the corporation weie 
separate and distinct, bodies and that the organization of the part 
nership, and the operation of its business was without corporate 
sanction of the defendant such as to make it liable. 

The defendant not being the employer as contemplated by the 
Workmen's Compensation Act of 101f>, we will have to dismiss the 
petition. 

The petition is accordingly dismissed. 



Critchlow v. Steen. 

Compensation agreement — When terminated — ;Vo Ion* of earning power. 

Where clnimant suffered nn injury to his hand whereby he rould not work his 
iismil trade of tjn>] dresser, hut win j'lirnitiE an mivli mnney working on n farm. 
tin. 1 cwniwusntiim agreement will be terminated. 



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197 

OPINION BY COMMISSIONER JARRETT—Jnne 15, 1921. 

IIEARINQ UK VOYO 

Claimant not represented. 

Defendant represented by W. C. Brown, Pittsburgh, 

Thomas Critchlow, the claimant was employed by B. 8. Steen in 
Forward township, Butler county, on November 10, 1916. He was 
employed as a tool dresser and while in the course of bis employment, 
being actually engaged in the furtherance of the business of the 
defendant, on the premises of the defendant, he met with an acci- 
dent, to-wit, "the temper screw ran off and caught his right hand, 
breaking the bones in the back of the hand." 

Following the injury the parties entered into Compensation Agree- 
ment No. 55756 for the payment of compensation at' the rate of $10 
per week and under this agreement compensation was paid to Janu- 
ary 1, 1918. Dn January 2, 1918 a petition was filed by the defend- 
ant for the termination of compensation, which petition was re- 
ferred to Referee 'Christley who made an order modifying the agree- 
ment to provide compensation at the rate of $5 per week from Janu- 
ary 2, 1918. 

On April 23, 1918, another petition was presented by the defend- 
ant to terminate compensation, which petition was later withdrawn. 

On March 19, 1919, the defendant by its insurance carrier, The 
Aetna Life Insurance Company again presented a petition to ter- 
minate compensation, which was referred to Referee Christley and 
on May 12, 1919, the Referee found as his second finding of fact: 

"That the claimant has been paid compensation un- 
der modified agreement to January 1, 1919, and that 
the condition of his hand has improved somewhat at 
the present time. He has more gripping power in the 
hand than he had at the time of the hearing and he 
would be able to earn more money in the open market 
than he would have been at the former hearing ; that he 
is still unable to resume his former occupation as a 
tool dresser. At the present time he is working on a 
farm, engaged in plowing, building fences and other 
work. He gets his living off the place and also a share 
of .the crops." 
and reached the conclusion that his present earning capacity was 
$16.50 per week or equivalent to $70 per month, and found that 
his weekly wages previous to the injury were $22 per week, making 
a loss in earnings of $5.85, and made an order of modification 
awarding 50% of $5.85 or $2.92 from January 1, 1919, until his 
disability ceases or changes. The defendant appealed, from this 



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order to the Board ; a hearing dr. novo was granted by the Board. 
The Board found: 

"That the condition of the claimant's hand is grad- 
ually improving, but that lie is still uuable to resume 
his former occupation as tool dresser. At the present 
time he is working on a farm from which be obtains 
a living for himself and family, and also a share of the 
crops. That his present average earning capacity is 
equivalent to $70 per month or $10.50 per week. His 
weekly wages previous to the injury were ?22, making 
a loss in earning power of $5.85 per week." 

and on December 19, 191!), made an order awarding 50% of J5..S5 
per week or $2.02 per week from January 1, 1919, until his disability 
ceases or ehauges. Compensation payments were made under this 
order until September 22, 1920, and on October 28, 1920, the de- 
fendant tiled a petition to modify said agreement, alleging that 
the earnings of the claimant equals the amount of wages received 
at the time of the injury, and asked that the agreement be termi- 
nated. The petition was referred to Referee Qhristley, who dis- 
missed the petition on the grounds that the claimant's disability 
had not ceased or changed. The defendant appealed ; a hearing de 
novo was granted which was held before the Board at Pittsburgh 
on April 6, 1921, at which time testimony was taken. The claimant 
did not appear. 

The question is: Does the claimant's earning power at this time 
equal what it was at the time of the accident? The record shows 
l hat his condition has been gradually" improving; that be has not 
been attended by a doctor since October 2, 1919; that he can close 
bis fingers more tightly to the palm of the hand than he could a 
year ago. His grip is improved. 

Dr. W. A. Caven, who has examined the claimant on two or three 
different occasions, testified that the injured hand is about normal; 
that in his opinion the claimant is able to perform the work of a 
tool dresser, farm work or general labor. 

The claimant has been, for some time, doing general farm work 
such as plowing, building fence, pitching bay. baling hay, etc. He 
suffers some inconvenience in driving a team but the testimony, 
taking it through and through, convinces us that there is very, very 
little inconvenience suffered by him in the performance of his farm 
work owing to this injury. The claimant, from the operation of the 
farm, has maintained his family, a wife and three children, and has 
not incurred any indebtedness that he could not finally meet from 
the sale of products of the farm, ne testified that be thought his 
earning power on the farm was about ?2 a day. 



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19!) 

W. L. Eisler was called as a witness for the petitioner ami he 
testified that his father operates a large farm in Butler county, in 
the vicinity of the claimant's farm, and that they pay from $60 to 
$125 a month and up as high as $130 a month to farmers, the prices 
depending upon whether or not they live on the farm and as to 
(heir ability. He testified that they have on their farm a man with 
n wife and three children and that from January I, 1020 to Janu- 
ary 1, 1021, that they received outside of aalary, each month the fol- 
lowing: Milk $0.80; butter ?5.60; eggs $3.60; "meat from killing 
hogs" #6.70; potatoes $2; apples -*2.50-; other fruits $1.25; garden 
truck *4; flour 75^; house rent #15; fuel $3.50, which totals $52.51. 
These items are in addition to the salary, which in all aggregates 
$120 per month. 

Mr. John Trautman was called as a witness for the petitioner 
and he testified that he lives in the community where the claimant 
lives and that he has in his employ a man whom he deems an or- 
dinary farmer who has a wife and three children, and pays him $50 
in money, gives him two hogs, potatoes and cabbage, free rent, 
water rent and "everything else," and he estimated that in all it 
represents a wage of $90 per month. He testified that he knows the 
claimant and that the claimant and his brothers are looked upon as 
ordinary farmers. 

After a careful review of the whole record, taking into considera- 
tion pay (money, provisions, etc.) of ordinary farmers in the claim- 
ant's vicinity and he able to do, and doing, ordinary farm work, 
thereby maintaining himself and family from the products of the 
farm, gale and otherwise, we are convinced that his earning power 
is beyond $2 per day as suggested by him and that it is equal to 
what it was at the time of the accident, to-wit, $22 per week. The 
testimony shows that the claimant, in addition to maintaining his 
family from his labor on the farm, also buys, from the sale of pro- 
ducts of the farm, fertilizer to improve the farm. This in a way 
strengthens our position, 

We therefore find as a fact that the claimant's disability as a 
result of the accident has ceased; that his earning power is equal 
to his earning power at the time of the accident, to-wit, $22 per 
week, and conclude as a matter of law that the compensation agree- 
ment existing between the parties should be terminated. 

The agreement is accordingly terminated as prayed, 



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McOloiighton v . Dreuding Bros. Co. 

Coarse of employment— Injury receireil ujtrr rh'vkin-j nut. 

Where nil elevator operator checked mil tor lite day nml was found four hours 
later at the bottom of nn elevatnr shaft in another part of tlie building with injuries 
to his head and back, from which he later died, his death is not compensable when 
he had no duties to perform in that part of the building; was not required in the 
performance of his duties to go to that part of the building: and it was not neces- 
sary for him to go to that part of the building to leave the premises. 

Claimant represented -by Marshall H. Morgan, Philadelphia. 
Defendant represented by John J. Ziegler, Jr., Philadelphia. 

OPINION BY MACKEY— Chairman— Juno 15. 11)21. 

HEARING DE NOVO 

There are no presumptions growing out of the facts of this case 
that are favorable to the claimant. We are only justified in draw- 
ing what seems to be to us inevitable deductions from certain facts, 
and allowing the presumptions of law and facts to guide us in cases 
where there is no positive evidence that sncessfully rebuts such pre- 
sumptions, and does not prevent us from logically arriving at in- 
ferences of fact. 

In this case the positive facts show that the deceased had quit 
his employment, laid aside his working clothes, drawn his pay, and 
left the premises of the employer. There was nothing to call bitn 
back to the employer's premises, and there was no reason why lie 
should have visited the elevator pit located upon the same. The 
fact that he was found in the position in which he was and under 
the circumstances described in the testimony raises no presumption 
of an accident in the course of bis employment, for there are other 
theories that are just as plausible and carry with them just as much 
weight. 

We hold therefore, that the claimant lias not met the burden of 
proof, and we find the following facts: 

1. That on February 7, 1920, John McClougbtnn, the decedent, 
was working in the employ of Dreuding Brothers Co., defendant, 
as an elevator operator. 

2. That neither the decedent nor the defendant had rejected Ar- 
ticle III of the Workmen's Compensation Art of I ill 5, as amended 
by the Act of 1919. 

3. That the average weekly wages of the decedent were f 16. 

■1. That the Pennsylvania Manufacturers' Association Casualty 
Insurance Co. is the insurance carrier for the defendant, and has 
intervened as patty defendant. 



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201 

5. That after lie had completed Mb work for the day on Saturday, 
February 7, 1920, at noon, John McCloughton, the deceased husband 
of the claimant, went to that part of the defendant company's plant 
where the time clock is located, and checked out for the day. That 
subsequently, about 4 P. M. in the afternoon, he was found at the 
bottom of an elevator shaft located in another part of the building, 
with injuries to his head and back, which caused his death on March 
4, 1920. 

That after punching his time card at noon on said date, the de- 
cedent, John McCloughton, had no other duties to perform in the 
building, and was not required in the performance of his duties to 
go to that part of .the building in which the elevator shaft was lo- 
cated ; and it was not necessary for him to go to that part of the 
building to leave the premises. 

6. That at the time of his death the said decedent left to survive 
him as a dependent his widow, Rosabelle McCloughton, the claimant, 
with whom he was living and who was dependent upon htm for sup- 
port. 

7. That the expenses of the last sickness and burial of the de- 
cedent were in excess of $100, none of which has been paid by the 
defendant or its insurance carrier. 

Prom the foregoining facts and the reasons suggested in our dis- 
cussion, compensation is refused. 



Lokus v. W. E. McTurk Coal Co. 

Partial disability— Earning power— Duly of empliiyer. 

WhiTe the evidence shows thnt the duimaut is partially disabled, but is able to 
perform light work, the burden ia upon the employe to establish his earning power. 
It is no longer the duty of an employer to furnish an employe with employment 
so as to establish bin earning power. 

Claimant represented by George O. Klauder, Philadelphia, 
defendant represented by H. A. Davis, Philadelphia. 

OPINION BY COMMISSIONER JARRKTT— June 20 .1921. 

The matter in dispute is the extent of the claimant's disability. 

The claimant was injured on May 23, 191$. suffering a compound 
fracture of the left humerus, several fractured ribs and severe con- 
tusion of the back. He was paid compensation for total disability 
until September 15, 191.9 and on September 19, 1919, the insurance 
carrier intervening defendant filed a petition to terminate the agree- 
ment. The Referee suspended payments of compensation until the 
claimant went to work, so as to enable the Referee to determine his 

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202 

earning power. On May 24, 1920 the claimant filed a petition for re- 
view of the agreement. The hearing was held before the Board and 
the Board held that it was of the opinion that the claimant was not 
totally disabled ; that he was able to perform some kind of light work, 
and dismissed the petition. On January 31, 1921, the petition for 
review of the agreement which is before us was filed. The claimant 
still contends that he is totally disabled. The hearing was held be- 
fore the Board at Philadelphia on March 24, 1921. 

The insurance carrier intervening defendant offered employment to 
the claimant as that of a slate-picker and contends that this is work 
he is able to do. The claimant would not accept the employment as 
he contends that he is unable to do this class of work. There was 
not sufficient evidence as to what the duties of a slate-picker are, so 
the Board referred the record to Referee Seidel to take testimony 
along these lines. The testimony was taken before the Referee ou 
May 10, 1921 and is in substance that it is mostly hoys that are doing 
this kind of work ; that it is considered as light work ; that the duties 
are to pick the slate, rock and other refuse from the coal that iB pre- 
pared mechanically as it passed down the chute toward the loading 
pockets ; that the coal is really prepared before it gets to the slate- 
pickers and that they are the last to pick out the refuse before it 
goes to the pockets ; that the pieces of slate and refuse to be picked 
weigh about four to six ounces ; that all of the work is done with the 
hands; there is no necessity of climbing ladders to the place of em- 
ployment but is necessary to go up a flight of stairs about twenty 
steps; that while doing the work it is necessary to stand and bend 
over the chute; that the height of the chute from the floor is to the 
waist line ; that they are on their feet about 75%or 85% of the time, 
having about fifteen minutes or twenty minutes every hour as a rest 
period, this when no coal is coming down the chute. 

We are of the opinion that the claimant is not physically able to 
perform this class of work as. owing to his condition, he is not able 
to stand 75% or 85% of the time as is required neither has he such 
active use of his left arm as is required to successfully do the work, 
but we are still of the opinion, however, that the claimant is not to- 
tally disabled. 

Dr. C. P. Chandler, witness for the claimant, testified that there 
are certain kinds of work that he is able to do. He could not state 
jnat what it was; said that it was hard to name the position but. 
would say that he could be able to wait on a lunch counter or some 
work where he could sit down, and recommended that he engage in 
some sort of work as it would be beneficial to him. Then we have the 
testimony of Dr. Harvey E. Rchoch, witness for the insurance car- 
rier; he is of the opinion that the claimant is able to do some kind of 



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light work. He was of tbe opinion that he waa able to do the work of 
a slate-picker but, as stated, we cannot agree with him. 

With both Dr. Chandler and Dr. Schoch of tbe opinion that he is 
able to do some sort of light work, we cannot hold otherwise than 
that the claimant is but partially disabled. We do not know the 
extent of the disability as his earning power is not shown. The 
claimant must establish it by his earning power by going to work, or 
by evidence as hereinafter suggested. 

It is true the testimony shows that the claimant has made several 
efforts to work at light employment such as working in a restaurant, 
cleaning tables, picking up napkins, etc., and that he was discharged 
because he could not do the work and also that he has made several 
applications for work and has been refused owing to his condition. 
This testimony has not much weight with us as we are really of the 
opinion, from the evidence and our observation of this claimant, that 
the greater part of his inability to go to work is due to his mind be- 
ing set on obtaining full compensation. We think his condition is 
not as serious as he would have as believe. If he would put forth 
the proper effort and disabuse bis mind of the thought that he is not 
able to work and the thought of getting cnmpens-ition, it would not 
be long until he would be self-supporting. 

We sympathize with the claimant in the trouble that he has bad, 
the pain suffered, etc., but we feel that we are acting to what is his 
best interest in the end- 
It is no longer the duty of an employer to furnish an employe with 
employment so as to establish his earning power {Fornatti r. Tower 
Hill Connellsville Coke Co., 6 Dept. Reports 2454) so it follows when 
there is evidence under circumstances as here, that the claimant is no 
longer totally disabled, the burden is upon the claimant to establish 
is earning power. He should either obtain employment or come be 
fore the Board with evidence as to what work he is able and quali- 
fied to do, showing the wages paid or earnings. We will then be in 
position to fix his compensation. 

We are therefore in hopes that the claimant will arouse himself to 
the situation and will do one or the other ; that is, get employment 
or come before the Board with evidence as to what he feels he is able 
and qualified to do, showing wages paid or earnings. 
The petition is therefore dismissed. 



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Calderwood v. City of Altoona. 

Commutation — When granted— Protection of minor • itdten, 

When the testimony indicates that it is fur the best interest* of the claimant 
that the compensation be commuted, commutation will be awarded when the rights 
of the minor children nrc properly protected by the appointment of a guardian, and 
in the title to the property. 

Commutation — Bond — Widjtc not required to /i(rjii*A. 

An indemnifying bond is not required when a widow's compensation is commuted 
as there is no provision for the same in the Workmen's Compensation Act. 

Claimant not represented by counsel. 

Defendant represented by Thomas 0. Hare, Altoona. 

ORDER BY THE BOARD— June 20, 1921. 

This is a petition for commutation. 

Laura Calderwood is a widow whose husband met his death in the 
course of employment, while engaged in the business of a policeman 
of the city of Altoona. He left a wife and a dependent minor. 

The testimony in support of his petition indicates that it is for the 
best interests of the claimant that the petition be granted, and that 
she receive in present value her compensation in lump sum, in order 
that she may devote the same to the^best interests of herself and her 
ininor child, in the purchase of a home for them both. 

The defendant, the city of Altoona, has filed an answer stating that 
it has no objection to computation of the future installments- which 
are payable to her, and which are for her benefit, and which termin- 
ate on December 18, 1921 "provided the guardian of Florence C. 
Calderwood, a dependent minor, acting under the authority of the 
Orphans' Court of Blair county joins in the application for commuta- 
tion and becomes a party to proceedings." 

On June 10, 1920, the President Judges of Blair county appointed 
the Altoona Trust Co., guardian of the said Florence C. Calderwood, 
and decreed that the said guardian "shall join with Mrs. Laura 
Calderwood in a release of satisfaction to the city of Altoona, when 
the amount of commutation of the several awards made in the estate 
of George D. Calderwood, deceased, shall be paid by the city of 
Altoona," 

The Referee in taking the testimony has made the following nota- 
tions of record: "Defendant, not present nor represented, notified 
the Referee Hint it would interpose no objection if the Board saw fit 
to grant same, and the proper bond of indemnity furnished, protec- 
ting the defendant against the remarriage or death of the said claim- 
ant." 



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205 

The Board determines as a fact that to commute this amount would 
be for the best interest of the claimant and her minor child. The 
facts of the case have been before the Orphans' Court of Blair county, 
and in consequence oj what appeared to be for the best interests of 
the said minor, that Court appointed the Altoona Trust Co. as guar- 
dian and ordered a release of compensation when paid by the defend- 
und to it in behalf of the minor for the purpose of making an invest 
ment in the home as desired by the mother. 

This is a determination of fact, supported by a judicial decree, 
that answers the terms of the Compensation Act, andVatfords proper 
protection to the minor involved. 

As to the suggestion made of record by the defendant, that if the 
Board grant commutation, it couple the same with an order directing 
the petitioner to enter the bond to protect and indemnify the defend- 
ant against the possible re marriage or death of the claimant, is one 
to which the Board will not yield. Notwithstanding the fact that the 
courts of one particular county in the State feel that such an in- 
demnifying bond is due to defendants or employers in cases of this 
kind, nevertheless the Board can find no provision for the same in 
the Workmen's Compensation Act 

Marie Cecere v. Philadelphia Boot Black Supply Co., C. P. No. 2, 
Philadelphia county, December term, 1920, No. 8870, sustains the 
attitude of the Board in granting commutation to a widow and de- 
clining to order a bond of indemnity as against her death or re-mar- 
riage. It will be noted in this case that the defendant raises no 
question as to the right of commutation to the guardian of the minor 
child. 

It is therefore ordered and directed that commutation be made in 
this case and that the present value be paid in a lump sum forthwith 
to the Altoona Trust Co., with direction that the said company shall 
see to the application of the money and that the minor's interest is 
properly protected by taking title to the property in such manner as 
may be directed by competent ami proper jurisdiction. We make 
this order notwithstanding Murphy t>. Railway, 6 Dept. Reports 783, 
for our views are expressed fully in our review of this subject in Q 
Dept. Reports 2833. 



Costa v. Barber Asphalt Paving Co. 

Brain abscess — Its relation to heat exhaustion. 

Where decedent had a brain absccm mid later became ill because ' 

ion while at work, and then died, his death is not compensable win 
bows Lis death due to the brain abscess. 



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Claimant represented by A. B, Repetto, and Isaac M. Price, Philadel- 
phia. 

Defendant represented by Nelson Sailor am] ('. Brewster Rhoads, 
Philadelphia. 

OPINION BY MACKEY— Chairman—June 20,1921. 

The evidence in this ease clearly indicates that Jacob Costa, the 
deceased husband of the petitioner, died on September 25, 1920, as a 
result of a brain abscess. It is reasonable to assume that this ab- 
scess antedated the attack of illness of August 14. 1920. This has 
lieen established by several physicians who were present at the 
autopsy. They all agreed that the abscess was of a chronic type, 

It is also certain that with the abscess in existence prior to August 
11, it could not have been caused by heat exhaustion suffered on 
that day. More than this, heat exhaustion and heat stroke are not 
recognized as causes of brain abscesses. The usual cause of the 
brain abscess in the frontal lobe is frontal sinuses or infection of 
the face or the bones of the face. 

There are many instances of brain abscesses where the cause can- 
not be fixed. There is some serious doubt as to whether or not the 
attack of Agust 14 was due to heat exhaustion. From the medi- 
cal evidence in the record, it seems possible that the symptoms 
enumerated might have been caused by heat exhaustion, altho con- 
vulsions are very rare on such occasions. Physicians tell ue thai 
convulsions occur more readily in heat stroke than heat exhaustion. 
The temperature of August 14, while no)t excessive, was yet i 
ciently accompanied by the high humidity to cause heat exhaus 
tion. 

It is evident, in view of the subsequent history of Costa's case, 
including also the findings of the post-mortem, that the attack of 
August 14 was undoubtedly the first serious manifestation of his 
brain abscess. While headache usually follows such an attack, due 
to brain abscess, and while according to the testimony, Costa felt 
entirely well a few days after the attack, nevertheless, such absence 
of headache does not exclude brain abscess as the cause of his at 
tack, and it is to be noted that he did not resume work. 

The real question for us to determine in this case, is, having 
determined that the brain abscess existed before the attack of 
August 14 and that the manifestations of illness upon that day 
were due to heat exhaustion, whether or not death which would 
have inevitably ensued from the brain abscess, was hastened by the 
heat exhaustion. 

Medicine seems to be entirely bare of any statistics upon this 
particular question, which would give us some light, if they really 
were in existence. It seems very reasonable to assume that heat 



207 

exhaustion would be an existing factor in stirring up a latent abscess 
into acute manifestations. It is a recognized fact in medicine 
Ibat a brain abscess may be present for months or even years, with- 
out manifesting any particular noticeable symptoms. 

A resume of the proper findings of fact from the evidence before 
us is as follows: 

1. Costa's death was due to brain abscess. 

2. The brain abscess originated at a time prior to August 14, 
1!>20. 

3. There is no data before the Hoard nor any legal reason why 
we should interfere wilh the findings of fact and conclusions of law 
in view of the testimony before us, which we have herein before 
analyzed. 

The findings of fact and conclusions of law are accordingly affi- 
rmed and the appeal dismissed. 



Slater v. Clinton Iron & Steel Co. 



Whore an employe left the premise of his employer for the purpose of obtaining 
drinking water, and is killed while (iff the premises, there is not such a break in the 
continuity of the dny's employment as will take the employe out of the course of 
his employment. 

Claimant represented by W. G. Hetner, Pittsburgh. 
Defendant represented by J. 1>. Darragh, Pittsburgh. 

OPINION BY MACKEY— Chairman— June 25, 1921. 
HEARING DE NOVO. 

The deceased husband of the claimant was employed by and was 
actually in the course of his employment with the Clinton Iron ft 
Steel Co., of Pittsburgh, on September 9, 1920, He was known as 
a fireman on a locomotive crane. Between 12 and 1 o'clock P. M. 
of the date just mentioned, he had finished his lunch and had re- 
turned to his work. He and his companions were handling iron 
when the deceased stopped working and went for a jug of water. 
In going for this water the deceased walked off the immediate premi- 
ses of the defendant on to W. Carson street, a public highway of 
the city of Pittsburgh, upon which are located two street railway 
tracks and then took a well-beaten path, customarily under daily 
use of the employes of the defendant, with the defendant's know- 
ledge, which lead to the right of way of the P. C. C. & St. L. R. R. ; 
and while upon this mission and actually upon the right of way of 



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208 

the railroad, the employe was killed by the operation of the rail- 
road bj its own employes. 

It is in evidence and thoroughly established to our satisfaction 
that the route that we have indicated leads to a spring where the 
water flowed into a barrel, and for years the employes of the de- 
fendant had been taking this very route for the purpose of securing 
this particular water, which was most palatable and pleased them 
very much more than water furnished by the defendant upon its own 
plant. 

It is also in evidence, first found by the Referee and now readop- 
ted by us, that the defendant's foreman had instructions from the 
proper officials of the defendant to forbid their employes to visit 
this barrel for water during the night, but there were never any 
orders issued, nor any objections expressed to the employes about 
this practice during the day. 

It seems to us that the case as clearly indicated, — that when we 
find a man, such as the deceased, actually in the course of his em- 
ployment, engaged in prosecuting the master's work, upon the em- 
ployer's premises, and he momentarily devotes his efforts towards 
self-ministration, that this act is not such a break in the continuity 
of the day's employment aB will take the employe out of the course 
of his employment,— D^ikowski v. Superior Steel Co., Supreme 
Court Decision (1 Mackey 88)— 259 Pa. 578. 

The Courts have treated the employe's act of self -ministration as 
being a proper means of putting the employe in both a better physi 
cal and mental condition to more zealously and successfully carry 
out the purposes of the employer. There can be no escape from 
this conclusion, see Ferri v. Lenni Quarry Co., 2fi6 Pa. 264. Here 
the employe quit the premises of the employer for the purpose of 
self-ministration and assumed a very dangerous position underneath 
a railroad car and while there the train was started and the employe 
killed. Both the lower and the Supreme Courts held that while the 
employe was guilty of very great negligence in not only nnneces- 
sarily leaving the employer's premises for that purpose, but also 
in assuming the dangerous position that he did, nevertheless it was 
an act of self-ministration and was not such a break in his continu- 
ous service of the master for the day that he was taken thereby out 
of the course of his employment. We think these two references 
sufficient to justify an award of compensation by this Board. 

FINDINGS OP FACT. 

1. The deceased and the defendant were at the time of the acci- 
dent on September 9, 1920, bound by the provisions of the Work- 
men's Compensation Act of 1915, as amended in 1919. 



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21)9 

2. The petitiODer was the dependent wife of the deceased anil 
lived with him at the time of his death. 

3. At the time of the decedent's death on S<*pteiiilx>r 9, 1920, his 
wages were in excess of $20 per week. 

4. That besides the widow, the deceased left as dependent child- 
ren, — Alvin Chessroom, born October 26, 1904;,'Donald James, born 
September 1, 1!)14; Panl David, horn September 14. 1916; Martha 
Louise, born September 14, 1916; and Sherman Lewis, who is now 
21 years of age. These children were all living in the household of 
the deceased at the time of his death and were his natural children 
and dependent upon him for support. 

(The award follows). 



Xiipoliello r. Jolin Baizley Iron Works. 

Dciiri:tlrncy—Iw parentis. 

Coin pen rait iuu will be nwai-cli'il thi> ntqihi-WH iind ni^.TH of a deoeasril employe when 

l lie evidence shows that tlifi doc-rased liad exercised all tin' ailllioritj- a)i(t jurisdiction 

of a parent, and had extended the care and support to them that a father would 

have done, 

Claimant represented by M. C. Goglia, Philadelphia. 

Defendant represented by E. B. Brandriff, Philadelphia. 

OPINION BY MACKET— Chairman^Tune 20, 1921. 
HEARING DE NOVO 

The Board ordered a hearing dc novo in this case in order to 
determine more definitely, for its own satisfaction, whether the 
deceased was actually in loco parentis toward his brother's children 
or just merely a boarder in the household. 

Considerable testimony was introduced by the claimant at the 
hearing de novo to fortify her position that the deceased had exerci- 
sed all the authority and jurisdiction of a parent and had extended 
the care and support to her children that a father would have done, 
and that as a matter of fact he had come into the household and 
assumed responsibility over the same for its expenses and substi- 
tuted himself for the deceased father. 

The case has, therefore, been well established and we will re- 
publish and adopt, as our own, the findings of fact and the award 
as originally made by the Referee. 

FINDINGS OF FACT. 

1. That on October 14, 1919, Gerardo Mattia was working in the 
employ of the defendant, John Baizley Iron Works, aa an iron 
worker. 

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210 

2. That neither party had waived the operations of the Work- 
men's Compensation Act of 1915. 

3. That the average weekly wages of the deceased were in excess 
of |20, payable weekly. 

4. That the defendant is insured by the Travelers Insurance Co., 
which appeared as party defendant. 

5. That on October 14, 1919, while working in the course of bis 
employment, Gerardo Mattia met with injuries which caused his 
death on October 18, 1919. 

6. That at the time of his death he left surviving him eight neph- 
ews and nieces, Rocco Napoliello, born March 26, 1905; Anthony, 
born March 23, 1907 ; Annie, born May 14, 1909 ; Alfonso, bom Sep- 
tember 2, 1910, Mamie, born June 3, 1912; Olimpio, born April 3, 
1914; Edward, boru October 2, 1916, and Lousa Napoliello, born 
December 23, 1918, who were members of his household, dependent 
upon him, and to whom he stood in the relation of loco parentis. 

7. That the funeral expenses of his last sickness and burial were 
in excess of f 100, which has been paid by the defendant. 



The defendant is ordered and directed to pay 

To the guardian of Rocco, Anthony, Anuie, Alfonso, Mamie, 
Olimpio, Edward and Lousa Napoliello, 60% of the maximum weekly 
wage of $20 or $12 per week from November 1, 1019, to March 25, 
1921, 73 weeks, $876. 

To the guardian of Anthony, Annie, Alfonso, Mamie, Olimpio, 
Edward and Lousa Napoliello, 60% of the maximum weekly wage of 
$20 or $12 per week from March 26, 1921, to March 22, 1923, 118 
weeks, $1416. 

.To the guardian of Annie, Alfonso, Mamie, Olimpio, Edward and 
Lousa Napoliello, 60% of the maximum weekly wage of $20 or $13 
per week from March 23, 1923 to May 13, 1925, 111 weeks, 5 days, 
$1342. 

To the guardian of Alfonso, Mamie, Olimpio, Edward and Lousa 
Napoliello, 55% of the maximum weekly wage of $20 or $11 per 
week from May 14, 1925, to August 1, 1925 11 weeks 2 days, $113.66, 
and 50% of the maximum weekly wage of $20 or $10 per week from 
August 2, 1925 to September 1, 1926, 56 weeks 3 days, $565.01. 

To the guardian of Mamie, Olimpio, Edward and Lousa Napoliello, 
45% of the maximum weekly wage of $20 or $9 per week from Sep- 
tember 2, 1926, to June 2, 1928, 91 weeks 2 days, $822. 

To the guardian of Olimpio, Edward and Lousa Napoliello, 35% 
of the maximum weekly wage of $20 or $7 per week from June 3, 
1928 to April 2, 1930, 95 weeks, 3 days, $668.48. 



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211 

To the guardian of Edward and Lousa Napoliello, 25% of the 
maximum weekly wage of $20 or f5 per week from April 3, 1930 to 
October 1, 1932, 130 weeks 2 days, $651.66. 

To the guardian of Lousa Napoliello, 15% of the maximum weekly 
wage of $20 or $3 per week from October 2, 1932 to December 22, 
1934—116 weeks, $348. 
Total award; $6802.81. 



Bair v. Staley Bros. 

Itcleaae— Set aside when ohtuined fraudulent!]/- 
The Workmen's Compensation Board will not recognise a release which was ob- 
tained from [lie claimants whit were tillable to read or write and were ignorant of ■ 
their legal rights at the time. 

Claimant represented by Henry I. Wilson, Punxsutawney. 
Defendant represented by W. C. Brown, Pittsburgh. 

OPINION BY COMMISSIONER JARBETT— June 24, 1921. 

HEABING DE NOVO AT PUNXSUTAWNEY. 

FINDINGS OF FACT. 

1. Walter Bair, deceased employe, and the Staley Brothers, em- 
ployer, the defendant, were at the time of the accident which caused 
the death of the said Walter Bair, bound by the provisions of the 
Workmen's Compensation Act of 1915 as amended in 1919. 

2. The said Walter Bair, deceased, was, on August 30, 1920, in 
the employ of the defendant company at its Horner mine, Jefferson 
county, (the business of the defendant company being the mining 
of coal) and on said date, while on. its premises in the course of 
his employment he met with an accident, to-wit, while he was min- 
ing under the coal some rock fell from the roof, striking him on the 
head killing him instantly. 

^3. He was, at the time of the accident, receiving wages in excess 
of $20 per week. 

4. The insurance carrier intervening defendant paid $100 to ap- 
ply on the funeral expenses of $125. 

5. At the time of the decedent's death there was dependent upon 
him to an extent, his father, J. A. Bair and his mother, Susie Bair, 
residing at Big Run. 

CONCLUSIONS OF LAW. 

1. That the decedent, Walter Bair and the defendant company, 

Staley Brothers, were at the time of the accident, as concerns the 

application of the Workmen's Compensation Act of 1915 and the 

amendments of 1919, bound by its provisions. 



212 

2. The decedent, Walter Hair, having met death by accident 
while in the course of his employment with the defendant company, 
and while on its premises, and the said J. A. Bair and Susie Hair. 
parents, being dependent to an extent upon his wages, they are 
therefore entitled to compensation. 

It is true that there was a release signed in this case by the claim- 
ants, releasing all claims that they might have to compensation 
growing out of the death of their son, the said Walter Bair, and it 
is true that in said release it is set forth that they were not depend- 
ent, but under the circumstances, the claimants not being abb? to 
read or write intelligently and not being aware of their legal right 1 *, 
we refuse to recognize said release as binding upon them. 



There is awarded to J. A. Bair and Susie Bair, Claimants, the 
parents of Walter Bair, deceased employe, against the defendant 
Staley Brothers, and its insurance carrier, the Aetna Life Insurance 
Co., compensation at the rate of 20% of $20 per week or $4 per 
week for a period of 300 weeks, beginning September 9, 1920, to be 
paid as provided by the Act. 



McCoy p. Jones & Laughlin Steel Co. • 

Diphtheria — Death from — Result of fall. 

Where decedent fell while at work in the course of his employment, suffering 
internal injuries one] later dies from diphtheria, compensation will be awarded for 
bis death when the cause of the death and the decedent's injuries were so closely 
related that his death was hastened as a result of the injuries. 

Claimant represented by Wm. A. McConrieU, Beaver, 
Defendant represented by W. L. Oopeland, Pittsburgh. 

OPINION BY COMMISSIONER JARRETT— June 24, 1921. 

Oust Alexander McCoy, on account of whose death compensation 
is claimed, while in the employ of the defendant company at Wood- 
lawn, on January 21. 1920, fell from the roof of one of its buildings, 
a distance of about 21 feet, sustaining certain injuries which totally 
incapacitated him. Immediately after the accident he was taken 
to the Southside Hospital. He was in a condition of shock ; had 
very little pulse and was very weak. He was thirsty and had a 
cold perspiration on his face. He was injured internally and had 
contusions of practically all of the body and the area running from 



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213 

the short ribs to the pelvic bone was a mass of black and blue, but 
the main injuries were to the back and right shoulder. He was 
suffering a great deal of pain, mostly from his back and had a par- 
tial paralysis of the right side. An X-ray of the lumbar region 
showed a fracture of the transverse processes of three fumbar verte- 
brae. He ran a "fairly" high temperature during the first five days 
during which time he was unable to raise himself in bed or to turn 
over. The internal condition seemed to right itself after the first 
few days. 'At the end of the fifth day there seemed to be an improve- 
ment which was thought to exist until about the tenth day when he 
seemed to develop some trouble in the chest which was later thought 
lo be pneumonia. After a few days the chest condition seemed to 
clear up but still he seemed more sick than his chart indicated, 
Several examinations were made of his throat and cultures taken, 
which showed streptoeoccia conditions of the trachea and he was 
treated for this, being given a tube of streptococcic serum. About 
the fourteenth day some blood counts were taken, which showed 
a decrease in the red corpuscles. He died February 11, 1920 of 
diphtheria. On the morning he died he coughed up some casts and 
just before death they opened the trachea and took out a mass of 
membrane. 

The death certificate was made out setting forth that death was 
due to bruises, concussion, probably pneumonia and streptococcic 
infection. This was later recalled and a new certificate was made, 
giving the cause of death as diphtheria. This second certificate was 
made after analysis showed that the membrane taken from the 
trachea showed diphtheria germs. 

The Referee awarded compensation and the defendant company 
has appealed; the defendant company contends that death was doe 
to the diphtheria and the diphtheria was in no way connected with 
the injuries. 

After carefully going over the testimony, as well the report of 
Dr. J. B. Carnett, of Philadelphia, to whom the record was sub- 
mitted for an opinion as an impartial medical expert, we must agree 
with the Referee who in substance held that the cause of death and 
the decedent's injuries were so closely related that his death was 
hastened as a result of the injuries. 

Here we have a man who had always been apparently healthy, 
a steady worker. He has a fall of twenty-one feet, resulting in 
many bruises to his body, an injury to the right shoulder, a severe 
injury to the back and an internal injury. He is taken to the 
hospital. In the first five days his condition is improved and after 
the tenth day a condition develops which is thought to be pneumonia 
but it clears up apparently ; then a turn for the worse finally result 



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214 

ing, as related, in death from diphtheria. When we consider this 
chain of events and take into consideration all of the circumstances 
and there being testimony before us showing that the decedent's 
vitality was lowered as a result of these injuries and that by reason 
of the lowered vitality the claimant could not combat the diphtheria 
as well as if he had not been injured, we are constrained to hold 
that death was, under the circumstances, a natural resultant effect 
of the injuries. 

It is true that Dr. Oarnett. says : 

"It is my opinion based on the testimony that the 
patient died from diphtheria located in the trachea 
and that his injuries had too uncertain an effect both 
in regard to contraction and course of the vital disease 
to be held responsible for his death." 

but the doctor did state: 

"Mr. McCoy's injuries may or may not have contri- 
buted to his death in any one or more of the following 
three ways: 

1. By causing a weakened condition which lessened 
his resistance to infection by diphtheria bacilli. — for 
by streptococci). 

2. By weakening his physical condition and there- 
by rendering him less able to withstand the effect of 
the diphtheria (or streptococcic infection). 

3. By reason of his having been brought into con- 
tact with a diphtheria infection which he might have 
escaped had be pursued his usual home life in absence 

of injury." i 

We can then give weight to the statement that the injuries may 
have contributed to his death as stated, notwithstanding the fact 
that the doctor gives it as his opinion that the injuries had too 
uncertain an effect both with regard to contraction and course of 
the vital disease to be held responsible for his death. 

We have very high regard for the opinion of Dr. Carnett but 
under the circumstances here we cannot agree with him in his 
opinion adverse to what we here hold. We do not only rely on Dr. 
Camett's statement in this particular but also on similar testimony 
of medical experts called by the claimant. 

Counsel for both parties seem to place much stress on whether 
it was a streptococcia germ or diphtheria germ which caused death. 
We think it immaterial as concerns the question whether strepto- 
coccia or diphtheria. We think the question is: Did the injuries 
bring about the cause of death or was the cause of death hastened 
to development owing to the injuries? 



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215 

Certain facts which we deem important were not found by the 
Referee and certain conclusions of law which were necessary were 
not made by him. We will therefore disregard the findings of fact 
of the Referee and substitute the following findings of fact and the 
following conclusions of law, which conclusions of law will auto- 
matically set aside the conclusions of law of the Referee and we 
will award compensation. 

In addition to the facts found above, we find as follows: 

FINDINGS OF FACT. 

: The decedent. Gust Alexander McCoy and" the defendant, 
Jones & Laughlin Steel Co., were at the time of the accident as 
concerns the application of the Workmen's Compensation Act of 
1915 and its amendments, 1919, bound by its provisions. 

?. The decedent, on January 21, 1920 was in the employ of the 
defendant company (which company is engaged in the manufacture 
of steel at Woodlawn, Beaver county, as an electrician or wire line- 
man, and while he was on its premises actually engaged in the 
furtherance of the defendant's business, he met with an accident 
to-wit, while throwing a cable horse with a loose end wire on it, 
the loose end wire caught his glove and pulled him off the roof; he 
fell about 21 feet and sustained an internal injury, injury to the 
right shoulder, fr.ieture of Hie transverse process of three lumbar 
vertebrae and other minor bruises. 

3. The injuries sustained were "violence to the physical structure 
of the body." 

4. The decedent, died on February 10, 1920, in the Bouthside 
Hospital of diphtheria, his death being hastened as a result of the 
injuries, to-wit, that owing to the injuries the claimant's vital re- 
sistance was so lowered tbat he could not resist the infection by 
diphtheria bacilli, which attacked him after the injuries were sus 
tained and his system was so weakened, as stated, as a result of 
the injuries that he could not withstand tlve effect of the diphtheria 
and as a result his untimely death resulted. 

5. The development of the diphtheria and its final result was, 
under the circumstances, a natural resultant effect of the injuries. 

6. The decedent at the time of the accident was receiving wages 
in excess of $20 per week. 

7. The defendant furnished reasonable surgical, medical and 
hospital services on account of the injury. 

8. The burial expense of the decedent exceeded the sum of $100, 
no part of which has been paid by the defendant. 

9. The claimant left to survive him the claimant, Emma B. Mc- 
Coy, his widow, and a son, Clyde Edward McCoy, born April 9, 
1914, who were at the time of the accident living with the decedent 



in Woodlawn, Beaver county, and were wholly dependent upon him 
for support as contemplated by the Workmen's Compensation Act 
of 1915 and itn amendments, 1919. 

CONCLUSIONS OF LAW. 

1. The decedent, Gust Alexander McCoy and the defendant, 
Jones & Laugh! in Steel Co., were at the time of the accident as 
concerns the application of the Workmen's Compensation Act of 
1915 and its amendments 1919, bound by its provisions. 

2. The said decedent. Gust Alexander McCoy's death being a 
natural resultant effect of the injuries sustained by accident while 
he was actually engaged in the furtherance of the business of the 
defendant, while on its premises, and the claimant Emma B ; McCoy 
and Clyde Edward McCoy residing with him at the time and wholly 
dependent upon him for support, they are therefore entitled to com- 
pensation as provided by the Act. The defendant company having 
paid no part of the funeral expenses of the said decedent, the claim- 
ant is also entitled to the sum of $100. for burial expenses. 

(The award follows) 



McGuirk r. Sun Shipbuilding Co. 

Bye — Loss of use of. 

Whore claimant, while lighting an oil furnace, was injured by an explosion 
throwing dirt and oil against his eye causing a traumatic cataract which resulted in 
blindness, compensation will be awarded even though the medical evidence is con- 
flicting, when the rest of the evidence shows that claimant was in good health 
before the accident, never had any trouble with his eye, and when first employed by 
the defendant was subjected to n strict physical examination. 

Claimant represented by Joseph H. Taulane, Philadelphia, and 

Albert S. McDade, Chester. 
I defendant represented by Joseph Xeff Ewing and Benjamin O. Frick, 

Philadelphia. 

OPINION BY MACKEY— Chairman— June 24, 1921. 

HEARING 1)E XOVO 

It has been established beyond any question of doubt that John 

McGuirk, the claimant, on April 8, 1919, sustained an accident of 

more or less severity while actually engaged in the prosecution of 

the employer's work upon the master's premises. 

It is also admitted that the claimant has lost his vision in his 
right eye. The whole question at issue is as to whether or not this 



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217 

loss of vision is the result of natural causes, or whether it was 
either caused by or accelerated either in time or degree by the acci- 
dent as described by the claimant. 

There was such a sharp conflict in Hie medical testimony before 
the Referee that the Board took the case in hand under a hearing 
rfr novo and instituted the most thorough investigation as to the 
facts surrounding Ihe accident and the medical history of this 
organ. We have called before us the most distinguished specialists 
on this subject in Philadelphia, and still the line of difference of 
opinion is just as well marked now as it was before this investiga- 
tion began. 

The claimant is 43 years of age and at the time that he claims 
to have suffered an accident he was engaged in helping the boiler 
makers employed by the defendant. 

His wages were 54 cents per hour, or averaging $23.75 each week. 
At the time that he claimed to have suffered an accident he was 
engaged in lighting a fire in a furnace when he says there was an 
explosion, throwing out a flame from 15 to 18 feet. These were 
oil furnaces. They are lighted through holes through which the' 
employe inserts a torch after the gas and air have been turned on 
to be thus ignited. The claimant maintains that while engaged in 
this act, an explosion took place which hurled against his face and 
eyes, with great violence, oil and dirt, lie cl'iims that the next day 
Mb eye began to become sore and inflamed and he treated it with 
boracic acid. The claimant has testified that the next day he noti- 
fied the superintendent and by him was directed to see the man in 
charge of compensation for the defendant, and that after an examina- 
tion by the company's doctor, medical service was dismissed and 
he went back to his work and thus lost the sight of his eye; that he 
was finally sent to the Wills Eye Hospital by the defendant, where 
he found I>r. Pontius, who determined that he could do nothing to 
relieve this eye nf its blindness. 

He also has testified that this eye was then operated upon at the 
Wills Eye Hospital under the direction of the defendant. 

He also has testified that the president of the defendant company, 
after these experiences just recited, caused -¥100 compensation to 
he paid to him and that subsequently another payment of $50 was 
made by the treasurer of the defendant. 

It is also in evidence that sometime previous to this accident, at 
the time when the claimant entered defendant's employ, that he 
passed a physical examination or test to which the defendant sub 
jected him and there was no discovery of blindness nor any evidence 
of senile cataract developed at this examination. 

The workman who was alongside of the claimant at the time of the 
ulleged accident has testified that upon the dav of the accident, when 

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218 

(he claimant was struck in the eye with the oil and dirt, that he 
inspected that member and found it red and inflamed, hearing all 
evidence of an injury, and in a few days afterwards a view of the 
eye by the same man revealed it to be not red as before but a grayish 
scum then covered it. As a matter of fact, the whole medical expert 
testimony lias been centered about this statement by this layman and 
the whole medical question involves whether or not a blow, as de 
scribed by the claimant and his witness, upon a normal eye would 
produce a traumatic cataract in the space of time as alleged by the 
claimant. If this is scientifically impossible, then, of course, the de 
fendant's position ijntst be maintained that the claimant was suf- 
fering at that time with a senile cataract, which lead to the in- 
evitable result in which the claimant now finds the eye and that this 
&hoek of oil and dirt had no effect ii]ton the member and did not, 
" exercise the slightest agency in bringing about the present result. 
Dr. Walter A. Landrey was the first medical witness called. He 
is a specialist in the treatment of the human eye. He had examined 
the claimant's eye and found that the claimant had undergone an 
operation for cataract, technically named as iridictomy, which means 
a removal of a portion of the iris. Tie was asked this question: 

"Q. From your experience and hearing this test- 
imony, will you state whether in your judgment that the 
condition of the eye as described by him 1 meaning the 
claimant) could not have lieen caused by oil and dirt 
thrown from the furnace with force." 
He answered: 

"A", Not unless there waB physical force hack of the 
oil and dust in the eye. The capsule of the lens could 
have been affected and cataract could form almost at 
■ once, — several weeks. I cannot say whether it could 
form in several days positively, — but theoretically — 
yes." 

"Q. You have examined the man and heard his test- 
imony and in your judgment could this condition arise 
from the force which he has described?" 
"A. Yes. sir — it could have been done with force." 

And further he following question was addressed to the witness : 

"Q. Assuming all the facts which Mr. McGuirk told 
you are true, he could get a traumatic cataract and not 
a matured one?" 

A. Yes, sir." 

Dr. George H. Cross also testified as follows: 

"When I first examined his right eye, it presented 
the appearance of a normal eye with the exception of 
a mature senile cataract due to age and not to injury, — 
a cataract of that kind can form six months to ten or 



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219 

fifteen years, — they sometimes never mature — his hart 
matured at that time. A mature cataract cannot form 
within a few weeks — it takes months, and we do not see 
them as a rule until they are lualured. There was no 
sign of any character showing any injury to the external 
part of his eye,— no scars or any signs or traumatism." 
This testimony was 1 ia.se J upon an examination made by this wit- 
ness on August 21, 1919. 

Dr. Paul J. Pontius testified that he specializes on the eye, and 
that he performed an operation upon the claimant's £yo. He testified 
as follows: 

"Diagnosis of this case would be matured cataract. 
That means that the lens inside the eye back of the iris 
became opaque, so that the light could not pass through 
and be refracted on the retina. In other words, com- 
pletely blinded hiin. That was the condition for which 
the operation was performed and the lens removed. 
The record here shows that the operation was success- 
ful." 
This operation was between the 4th and the ISth of November, 
1!>19. 

Dr. Pontius was asked this question: 

"Doctor, it has been testified in this case that prior to 
April 7, 1919, Mr, McOuirk had not noticed anything 
wrong with the sight of that eye. That on the 7th of 
April be lighted an oil furnace, and that when he lighted 
it there was an explosion whch threw oil and dirt and 
dust into that right eye. That an employe who examin- 
ed his eye a few hours later saw that it was red and 
inflamed, and the same employe examined his eye several 
days later and noticed a peculiar white color in the eye 
which he had not noticed there before, and that McOuirk 
noticed he was blind in that eye. Assuming those facts 
to be true, Doctor, would you connect the accident which 
he described in any way with the condition which you 
discovered at the time of your operation?" 
The witness answered: 

"I have seen so many phases of cataract formation 
that I feel that anything might be possible. The small- 
est particle may give you acute congestion of the eye. 
So, that traumatic cataracts in children or adults may 
start in a few days, but usually it is of longer duration. 
The subject is so broad. We find cases of patients who 
have had cataracts for years and the patients are not 
cognizant of it until by some accident they are discover- 
ed. Then we have other cases that develop traumatic 
cataracts in a very short time; all depending upon the 
irritation causing the cataract, and the phyical condi- 
tion of the patient. So that I should hesitate in dis- 



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criminating. I say it is possible, and, as a small 
delicate organ it is very susceptible at times." 

Dr. Percy L. Ballentine made an examination of the claimant at 
the request of the defendant. His examination was on April 11, 1!)I9. 
and he expressed the opinion that the claimant had been Buffering 
from a senile cataract rather than one whose origin was traumatism. 

I.'nder the Board's investigation this theory was corroborated by 
Dr. William C. Posey. 

Dr. L. W. Fox, however, supported the claimant's position and 
testified as follows: 

"Upon making an examination, found a cataract 
operation had been performed on the right eye, and very 
successfully. I could not discover a scar on the cornea 
proper, even though I used a corneal microscope of high 
power, but to produce a cataract of this character a scar 
need not necessarily be present. There have been cases 
in our clinics where small bits of coal or slivers of steel 
have passed through the eye without leaving a scar. iA 
blow upon the eye may give rise to a traumatic cataract, 
and this condition may develop in the course of a few 
days — the entire lens becoming completely opaque. This 
is due to a laceration of the suspensory ligament, pre- 
venting the normal nourishment of the lens. In the case 
of John McGuirk there has been a slight thickening of 
the posterior capsule following the operation, but this 
is not unusual. The blow as described by the claimant 
could produce a traumatic cataract. From the opera- 
tive standpoint the procedure for a senile and a trau- 
matic cataract is the same. However, in some cases 
of traumatic cataracts, after a certain length of time, 
the body of the crystalline lens becomes absorbed, leav- 
ing behind the anterior or posterior capsule, obscur- 
ing the vision. When this condition exists we make an 
incision through the capsule with a De Wecker's scissors 
or a sickle shaped knife, producing an artificial pupil. 
In the case of the claimant the lens proper, or cataract, 
was not absorbed so the operation for senile cataract 
was performed, and quite rightly so. 

The differential diagnosis between a senile cataract 
and a traumatic cataract is, that the former has a gray- 
ish reflex in the pupil, and the latter, traumatic, has a 
bluish or opalescent tint. However, in some cases it is 
difficult to differentiate between the two conditions. 

My diagnosis is that of traumatic cataract. If a 
senile cataract the tendency is for the fellow eye to be- 
come cataractous, which is not so in this case — the left 
eye being practically normal. 

In conclusion — Firjt, a cataract can be developed by a 
force such as described by the claimant ; second, it would 



221 

be known as a traumatic cataract,and could develop in 
from twenty-four hours to three weeks ; third, an opera- 
tion for the removal of a cataract of this character 
would he the same as that for a mature senile cataract." 

On the contrary, Dr. William C. Posey states as follows: 

"It is my belief that he (meaning the claimant) had a 
well-developed cataract upon the right eye on April 8, 
191!*, although he was as he claims unaware of the poor 
vision in that eye." 

In view of the fact that McGuirk was in good health before the 
accident and had never experienced any trouble with his eye, and had 
nut been compelled to wear glasses, and that when he was first em 
ployed by the defendant he was subjected to a strict physical b it, 
we will adopt the testimony of the experts who have testified that it 
is their conviction that the claimant, on the date of the accident as 
described, suffered such an injury to the right eye that there developed 
therefrom a traumatic cataract, which has lead to the loss of the use 
of that organ. 

The testimony of Dr. L. W. Fox is not only clear, logical and con- 
vincing, but coines to us as the result of years of scientific research 
and most extensive experience. 

We, therefore, find that as a consequence of the injury suffered on 
April 8, 1919, John McGuirk lost the use of his right eye and is 
entitled to compensation therefor. 

His average weekly wage was in excess of ?20 per week and he is, 
therefore, entitled to compensation of |10 per week for 125 weeks 
from the date of his actual disability. April 22. 1919. The defendant 
is to be given credit for }150 paid on account of the said com 
pensation. 



Touzour r. Traylor Shipbuilding Corp. 

Statute of limitation*— Section J/J Workmen's Compensation . 

N'lierc n compensation nRrcement has been i^rminatecl because, it is ' 
ilimihility liaa eeascd, the Board may Inter, under n petition 1 
cip]niM>ri nation for permanent disability. 



Appellee represented by Isaac M. Price, Philadelphia. 
Appellant represented by Richard A. Smith, Philadelphia. 

OPINION BY MACKEY— Chairman— .Tilly 1, 1901. 

This appeal is from the order of the Referee reinstating a com- 
pensation agreement which was executed, between the claimant ami 



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defendant on the 3rd day of September, 1918. The said agreement 
was drawn because of the fact that the claimant was injured in the 
i-ourse of his employment for the defendant and further that he had 
suffered an admittedly compensable accident. 

On April 5, 1919 the defendant filed a petition for the termination 
of said agreement on the ground that his diaabality had ceased. 
Subsequently, the defendant withdrew this petition and on January 
14, 1920 filed another petition for the termination of the said agree- 
ment, and again the records show that the case was disposed of by 
tbe defendant "withdrawing its petition. But liiiiilly, on September 
16, 1920, the Referee heard the testimony under a subsequent petition 
to terminate and on September 30 following, hauded down an order 
terminating the said agreement. 

Front this order an appeal was taken. Commissioner Houck hand- 
ed down the following opinion: 

"This is a petition by the defendant for termination 
of a compensation agreement, the defendant contending 
the claimant's disability has ceased. lAfter hearing, the 
Referee terminated the agreement as of September 16. 
1920. The evidence indicated that the claimant is able 
to resume his occupation but is obsessed with the idea 
that he is unable to work. The Board is of the opinion 
that the claimant should make an effort to return to 
work and, accordingly, the Referee's termination of the 
agreement will not he interfered with. 

"The order is affirmed, and the appeal is dismissed." 
The language of the Referee upon which this comment of the Board 
is made, as found in the order of September 30, is as follows: 

"After taking the testimony in this case, the Referee 

is of the opinion that the claimant is in such condition 

that he is able to perform the duties of a carpenter. 

which was his occupation at the time of his accident on 

May 3, 1918, or at least he is able to perform some work. 

so the prayer of the petition to terminate Compensation 

Agreement No. 634791 is hereby granted as of September 

16, 1920, the date of the hearing, and the burden of proof 

is placed upon the claimant to prove that he is suffering 

from any disabilitv caused by the accident of May 3, 

1918." 

On February 1, 1921 the claimant filed a petition praying that the 

original agreement be reinstated. This petition was referred to 

Referee Rosier, the same Referee who had made the previous order, 

and after taking the testimony in support of the said petition, the 

Referee ordered the said agreement reinstated. Tn this order tht 

Referee makes the following statement: 



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22a 

"A hearing on this petition was held on April 6, 1921, 
but as the claimant was unable to have his doctor ap- 
pear, the hearing wan continued until April £2. at which 
time the Referee was of the opinion that additional X- 
rays should be taken, with a view of endeavoring to as- 
certain exactly what was causing the pain and disability 
of the claimant. There had been a number of X-rays 
taken of the claimant prior to this hearing but all of 
them were indistinct, making it very hard to arrive at 
any definite conclusion. Ity agreement of counsel, it 
was arranged to have Dr. O. E. Pfahler X-ray the claim- 
ant and report his findings to the Referee, it being under- 
stood and agreed that Dr. Hauler's report would be 
made a part of the record. The claimant was X-rayed 
by Dr. Pfahler on May 5. 1921, and his report shows that 
the claimant has had fractures of the ninth, tenth and 
eleventh ribs on the left side, about two and one-half 
inches from its attachment to the spine; and a fracture 
of the eleventh rib on the right Bide, about two and three- 
quarter inches from its attachment to the spine. There 
is also marked decalcification of the left twelfth rib. 
These fractures have united properly and should cause 
no pain. The decalcification is a systemic condition, 
which was not caused by the accident and should not be 
the origin of any pain. He has had a fracture of the 
transverse process and the articular process on the right 
side of the fourth lumbar vertebrae, and he has an art- 
iculating transverse process on the left side of the fifth 
lumbar vertebrae, and the upper portion of this trans- 
verse process has the appearance of an old fracture. 
The condition of the fourth and fifth lumber vertebrae 
are such as would cause the pain and disability" which 
the claimant alleges. This condition is brought to our 
attention now for the first time, as heretofore the ori- 
gin of his pains has always been attributed to the frac- 
tured ribs. The claimant has in addition to the above, 
a large pusiform, thoracic aneurism, -which was not 
caused by any injury. He also shows evidence of an 
ORtieo-arthritis, involving the dorsal vertebrae, which 
is also a systemic condition and one not caused by any 
accident." 

The Referee then goes on: 

"The defendant contends that this petition for rein- 
statement should not be considered, as the Compensa- 
tion Agreement was terminated by the Referee and the 
rule affirmed by the Board ; and as no appeal was taken, 
the claimant is barred from any further recovery. This 
contention would undoubtedly hold good provided there 
had been no change in the status of the case, but we are 
now in possession of facts that were not in evidence at 
the time of the termination of the Compensation Agree- 
ment, and we must conclude, therefore, that the tennin- 

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r " 224 

ation was made hi error. The petition to terminate 
was granted on the theory that the claimant was not 
guttering from any disability due to his fractured ribs, 
not knowing that he was suffering from a condition in 
the fourth and fifth lumbar vertebrae. The X-rays show 
conclusively that he has a condition of the fourtn and 
fifth lumbar vertebrae such as would cause the pain 
and the disability of which the claimant complains." 

The defendant contends that because of the order of the Referee 
terminating the compensation; its subsequent approval by the Board 
and the fact that no appeal was taken therefrom, precludes the claim- 
ant from further pressing his case before the Compensation Board. 
Were this true, the whole theory of a compensation agreement as 
repeatedly announced by the Board, in such cases as Gairt v. Curry 
Coal Mining Co., and those therein cited, (6 F)ept. Reports 2078i 
would go for naught. Joseph Gairt's petition presented many of 
the facts of the one now under consideration, as will be seen by a 
survey of that case, except that the one mirier consideration at the 
present time does not present as many obstacles for the claimant 
as did the Gairt case. In the latter, the Referee and the Board a 
number of times had concluded that his permanent disability had 
ceased, but as we observed in that case, a Referee's order could not 
[possibly be interpreted to be a final termination of the obligation 
of that agreement. The Act does not contemplate any such power 
or any such process. The most that the Referee's order to terminate 
con Id amount to, would be to construe it as a suspension of the terms 
of the agreement until the claimant, by his own efforts, should demon- 
strate his real physical condition and earning capacity, lAInd so, 
in the present ease, Referee Rosier was of the opinion originally 
that the claimant's total disability bad ceased, but believing that 
(here was a partial ability to earn, imposed the obligation upon the 
claimant to go out and demonstrate that fact, and now, as in the 
Gairt ease, in an attempt to so demonstrate his partial disability, 
he has shown complete total disability. 

As incident to the inquiry, thus forced upon the claimant, more 
extensive scientific and elaborate medical examinations have l>epn 
made and a condition was thereby revealed to the Referee, of which 
he was unaware at the time he made bis original order. 

We find, therefore, under the testimony, that the claimant is now 
and was on September 16, 1920. totally disabled, and that the Referee 
was perfectly correct and within the numerous decisions of the 
<"Vinrts of Pennsylvania which have uniformly, in upwards of :t 
dozen cases, sustained the principle contained in the Gairt case above 
referred to. See also Merchants Trust Co.. of Oreensburg, guard- 
ian of Mike Peris, v. Pittsburgh Steel Co., 6 Pept. Reports 2421 . All 



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Ihe cases therein referred to have been affirmed by the Common 
Pleas Courts of their respective jurisdictions. 

The right to suspend or to revive the obligations of a compensation 
agreement has been given to the Board in the Amended Act of 1919, 
(see Section 413 Workmen's Compensation Amended Act of 191ft) 
and the Amended Act applies as to procedure in old cases, Kuca 
r. Lehigh Valley Coal Co., 6 Itept. Reports 171fi, (Supreme Court 
of Penna. not yet reported I also Gairt v. Curry Coal Co., opinion 
by Evans, J., 7 Ftept. Reports 74. The interpretation that the 
Board has constantly and insistently applied to these agreements 
has been sustained and the matter determined once for all in Hughes 
v. American International Shipbuilding Corp., 7 ltept. Reports 806, 
opinion handed down hy Simpson, .1., February 14, 1921. This is 
a supplemental or a substituted opinion for Hughes v. American 
International Shipbuilding Corp.. reported in Advance Reports 270 
Penna. 27. 

The order of the Referee is affirmed and the appeal dismissed. 



Banks v. Fink Co. 

Course of employment — Injury at noon hour — Self- minis tra (ion. 

A claimant, who wan injured by slipping on im icy sidewalk on the premises of 
the employer while on her way to lunch at noon hour, will be awarded compensa- 
tion as she was in an act of srlf-ministrution. which was not such a break in the 
continuity of the day's employment that she was taken out of the course of her 
employment. 

Claimant represented by Isaac M. Price, Philadelphia. 
Defendant represented by Richard A. Smith, Philadelphia. 

OPINION BY MACKEY— Chairman^Iuly 1, 1921. 

On January 18, 1921, the claimant, while on the Bidewalk of the 
south side of Commerce street, Philadelphia, slipped on some ice, 
sustaining certain injuries to her left knee. The sidewalk was ad- 
jacent to the premises under the control of the defendant. It was 
a sidewalk necessarily in use by the employes of the defendant in 
going to and from their actual place of work upon the defendant's 
premises. The defendant's responsibility to the public for tbe con- 
dition of this sidewalk could not be denied, and the ice upon it on 
the day in question constituted such a condition of the premises as 
is contemplated hy the Compensation Act when it awards compen 
sation to employes injured because of the condition of the em- 
ployer's premises. It was at the noon hour, and, as was customary, 
the claimant was just leaving the premises to obtain her lunch. She 

15 



was therefore in an act of self-ministration, and this lunch hour, 
under all the decisions of the courts, was not such a break in the 
continuity of the day's employment that she was taken out of the 
course of her employment. We therefore have an employe during 
the course of her employeinent injured because of the condition of 
the defendant's premises at a point where the nature of her duties 
required her to be. The law holds that it is perfectly necessary and 
right that the employe should indulge in acts of self-ministration 
which prepare him or her to better serve the employer. 
The award of the Referee is affirmed, and the appeal dismissed. 



Senawaitis v. Philadelphia & Reading Coal & Iron Co. 

Dependent!!/ — Common lav, tcije — What constitutes. 

Where the claimant live] with the deceased employe and had illicit intercourse 
with him under an agreement to be married three years later, there is not sufficient 
evidence to show that there bad been an offer and acceptance between the parti*.*, 
or that any one believed them married. 

Claimant represented by Roger J. Dever, Wilkes-Barre. 
Defendant represented by John F . YVhalen and B. D. Troutman, 
Pottsville. 

OPIXION BY MACKEY— Chairman— July 1, 1921. 

The Referee has found as follows: 

"The claimant and her first husband, Charles Senawaitis, had 
been married and lived together in Mahanoy City, for a period of 
about fifteen years and six months. One full brother Joe and a 
half brother Paul Sere rfaitis were boarding with the claimant and 
her husband on July 9, 1916, when the latter met an accidental 
death. Paul had been boarding with the twain for a period of thir- 
teen years. 

"Soon after the death of the claimant's husband, the said Paul be- 
gan to keep company with her and continued to do so until four or 
five months before December 25, 1919, when he died as a result of 
an accidental injury that he sustained on the twelfth of the same 
month. During these four or five months the decedent and the 
claimant lived together as man and wife. The former gave all his 
earnings to the latter and she used the money together with the 
board of Joe to support the couple and her two daughters, who were 
the offspring of her first husband. 

"The coople hari* agreed to and did live as mnu and wife until the 
elapse of three yca*g before tt formal marriage ceremony would have 



227 

been performed. This the claimant testified was arranged so that 
she might become reconciled to the death of her husband Charles. 
Among many of their acquaintances and friends it was known that 
they were living as a common law marriage couple would live; that 
Paul Senawaitis and the claimant were living in the relationship of 
husband and wife." 

From these facts the Referee found a common law marriage and 
awarded compensation. 

On reviewing the testimony to ascertain if the evidence warranted 
this mixed finding of law aud fact on the part of the Referee we 
are unable to support him either in his findings of fact or conclu- 
sions of law. 

This question has been so frequently decided by the Courts of 
Pennsylvania that there can be no doubt as to the elements of proof 
that are necessary to establish marriage. A meretricious relation- 
ship continued by the deceased and the claimant without any pre 
tense of marriage will not justify an award of compensation. Not- 
withstanding the conventionalities of society as to a marriage cere- 
mony, marriage remains a civil contract between the parties, and, 
of course, if satisfactorily established that there has been snch a 
contract, the relationship of husband and wife with all the obli- 
gations and benefits, growing out of the same, follow: The law, how- 
ever, is not easily satisfied in this respect, for good order and 
decency require a reasonable compliance with the standards of 
society, and when those requirements are not met, an exacting bur- 
den of proof is placed upon the one seeking to explain the omission 
of the usual and ordinary customs of life. 

There must have been an invitation and an acceptance couched in 
language of the present tense and not in futuro. There must have 
been cohabitation: and reputation of marriage must be established 
fully and convincingly. Our courts have said in this respect: "Ad- 
missions and declarations, if made to subserve a mere temporary 
purpose for the interest of botli parties as to induce servants to live 
with them, to quell the suspicions of keepers of lodging houses, or 
to secure respectful treatment in public conveyances or to satisfy 
the too prying curiosity of strangers — would have infinitely less im- 
portance than if made to the family circle or 1 to the friends of the 
family, whose character demands the highest good faith and the 
greatest respect." 

In other words, reputation of marriage must be established by the 
holding out of this relationship by the parties under reasonable and 
natural circumstances. Given a couple who are living together 
meretriciously— it would be of very slight importance to show that 
they had represented to the landlord that they were husband and 

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wife, for this would have been necessary in order to secure their 
habitation; neither would much importance be attached to the fact 
that they had made the same representations to the grocer-man, the 
butcher, or those who served them in such capacity ; but, if the rep- 
resentations were general and made to persons disconnected with 
them in point of interest, or to their most intimate and personal 
friends whose high esteem they must necessarily have cherished, the 
case wonld be rather firmly established. With this standard of 
proof iu mind, let us look at the testimony in this case. 

In the testimony of the claimant herself there ib no evidence of 
any invitation to the marriage relationship and no acceptance fixed 
by her either in point of time nor indicated by any form of language. 
She has fixed no particular time when the half brother of her de- 
ceased husband ceased to be a boarder and entered into marital re- 
lationship with her. As a matter of fact, her testimony clearly in- 
dicates that no such formalities between them had ever passed, for 
she indulges in the strange observation that they had agreed to 
postpone their ceremony of marriage for three years in order that 
she might become more reconciled to the loss of her husband. This 
remark undoubtedly gives us a clear insight into the moral concep- 
tions of the claimant, for although she admitted illicit intercourse 
with the deceased, still she professed such regard for her former 
husband that she would postpone the announcement of their common 
law relationship for three years in order to satisfy her feelings of 
bereavement. 

Joe Senawaitis, who lived in the same house, disavowed any know- 
ledge of marriage between them and did not suppose that they were 
man and wife. 

The claimant's sister, Mrs. Eva Malonis, only testified to the fact 
that when her sister was suffering with influenza Paul, her alleged 
common law husband, nursed her. She said that her sister had never 
told her that she was married to Paul, but that she was going to get 
married. 

Frank Flamonsky testified that the claimant occasionally would 
pay Paul Senawaitis' dues in a mine workers' organization, but in 
answer to the question: "Do you know they were living together 
as man and wife?" he*ihswered: "I couldn't tell you that." 

Peter Milonis who worked with the deceased in the mines testified 
that the deceased once told him "I pay for the rent". "I give all my 
pay to Annie Senawaitis," and this was upon one occasion on the 
street corner seven or eight months before the deceased was killed. 
We also find these questions and answers in this witness' testimony: 



"Q. Did he ever tell you he got married?" 
"A. Tes, sir." 



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"Q. What did he say?" 

"A. After while 1 am going to get married." 
"Q. He didn't tell you he did marry her?" 
"A. No, sir." 

Q. Did people in that neighborhood know they were 
living like man and wife?" 
"A I don't know." 

Mrs. Peter Kasper had lived in Mahanoy City for seventeen years 
and is a married woman. She knew that the deceased at the time 
oi his death lived with Annie Senawaitis. She was asked the follow- 
ing question: 

"Q. Did you ever have a talk with Paul Senawaitis 
about what he did or what he was going to to?" 

"A. YeB, sir, he used to come once in a while to our 
house and he used to say all the time he was support- 
ing her and her children and going to get married 
pretty soon." 

His brother Joseph was asked: 

"Q. Did you ever hear of Paul living with Annie 
. Senawaitis as man and wife?" 

"A. No, sir." 

"Q. Do you know that he paid board to Mrs. Sen- 
awaitis for Jiving there with her?" 

"A. When he was living there he told me paid board 
to Annie Senawaitis." 

Mike Senawaitis, the deceased's half brother was asked: 

"Q. Did you ever hear of Paul and Mrs. Senawaitis 
living together as man and wife?" 
"A. No, sir." 

Do you know whether he was a boarder there?" 
"A. Yes, sir." 

ThiB testimony does not establish a common law marriage. It, 
in no way, answei 8 the requirements of the law of evidence as to 
quantum or quality of proof necessary to establish reputation of mar- 
riage. There is an utter lack of any testimony that there had been 
au offer and acceptance between the parties couched in language 
of the present tense or that anyoue believed them married. The 
claimant has failed to meet the burden of proof which the law places 
upon her to establish this relationship. See Ceppa v. Colliers 
Co., « Depi. Reports 1613; Urwiler v. P. 11. T., 4 Dept. Kep. 838; or 
111 Board Decisions 120; Grimm's Est. 131 Pa. 199; Thewlis Est., 
217 Pa. 307 ; Commonwealth p. Stump, 53 Pa. 132. 

Therefore, we reverse the Referee's conclusion of law, substitute 
our own findings of fact where they conflict with his mixed findings of 
law and facts, set aside the award and disallow compensation. 



23G 

Osika v. Hudson Coal Go. 

Course oj employment — Accident while removing tool* jrom mine. 

Compensation will nut be awarded for the death uf a miner who bud quit working 
for the defendant and returned to the mine to remove his tools and was killed by 
a mine cur, as at tbat time he was, under the law, a stranger to the employer. 

Claimant represented by Roger J. Dever, Wilkes-Barre. 
Defendant represented by Edward T. Noble, Scruuton. 

OPINION BY MACKEY— Chairman— July 1, 1921. 

When this case was lirut before tlie Referee lie found tliat Louis 
Osika, the deceased husband of the claimant, had been an employe 
of the defendant, the Hudson Coal Go; that on February 14, 192U, 
the deceased actually worked fur the last time fur the defendant, 
and because of receiving burns at his own borne could not return 
to the premises of the defendant until March 10, 1924). His nadings 
of fact from that point on are as follows: "That on the morning 
of March IS), 11)20, Louis Osika appeared at the Delaware mine of 
the defendant company, clad in his working clothes, and asked per- 
mission of the assistant mine foreman, Guy E. Connor, to go intu 
the mines to get his tools, which, permission was granted. He 
accordingly went down into the mines and in No. 18 plan arranged 
with Joe Walkowiak, a car runner, tit take his tools out of the mine. 
Then taking his drill and needle with hiiu, proceeded along the route * 
customary for men to take who were leaving that part of the mine. 
This route is out No. 3 east iuanway to No. 10 plane, down the man- 
way, just west of No. 1(1 plane to the foot of the shaft. To reach No. 
10 man way from No. \i east manway, one must cross No. 10 plane. 
That the right to go into the mines to get his tools was part of his 
contract of hiring and tbat the company reserved the right to inspect 
the tools before they were removed." 

The Referee then found that while enroute the deceased met with 
an accident by being struck by a trip of mine cars, which caused his 
death on the same day. 

The Referee concluded that the deceased had never been discharged ; 
but the reason that he had been away from the premises of the defend- 
ant during the interval just mentioned was because of injuries re- 
ceived at his own home; and that he had a right to go into the mine 
lo lake liix tools nut, if hp elected to quit bis employment this being 
covered by the terms of his contract of employment ; and that while 
he was there and before he had actually quit the premises he was in 
the course of his employment, and having met with an accident upon 
the employer's premises, due to the operation of the employer's busi- 
ness, his widow would be entitled to recover compensation. 



,oglc 



The case then came before the Board upon appeal, and we returned 
it to the Referee with the observations, inter alia, "Ale far as the 
Hoard can find from these findings the deceased might have visited 
the mine merely for the purpose of taking his tools away in order to 
work for some other employer." The Board then directed the Re- 
feree's attention to the particular facte that most be found in this 
connection. 

The Referee then reassembled his facts, us he understood the tes- 
timony, without any further hearing. His fourth finding is as fol- 
lows: "That the right of Louis Osika to take his mining tools into 
the mines, and the right to go into the mines to get them was part 
of his contract of hire. The company reserved the right to inspect 
such tools, together with the box in which they were kept, before they 
were removed." From this finding, together with other findings of 
fact, which were merely repetitions of his original findings, the Re- 
feree drew hi« second conclusion of law as follows: "That since 
Louis Osika, the claimant's deceased husband, met with an injury by. 
accident while in the course of his employment with the defendant 
company, his dependents are entitled to receive compensation under 
the terms of the Workmen's Compensation Act of 1915, and its sup- 
plements." The Board merely affirmed the findings of fact and con- 
clusions of law, and then there was an appeal to the Court of Com 
mon Pleas of Luzerne county. In this opinion we find the following: 
"We do not believe that ihe compensation law was intended to cover. 
or should l»e construed to cover, such a case. It seems to ns the re- 
lationship between the defendant and the deceased, as employe and 
employer, had l>een clearly severed, notwithstanding his right to 
to bring out tools. His act in so doing inured to his exclusive bene- 
fit, not being in furtherance of his employer's business or in the course 
of his employment. It this be so, the Referee's findings of fact is not 
supported by competent evidence ,and we have the power, under the 
amended Act of lOlft, to reverse him and remit the record for further 
hearing^on that groand." 

At the further hearing there was no more testimony produced. 
The record is now ex* ;tly the same as it was when before the Com- 
mon Pleas Court of Luzerne county upon appeal. In deference to 
the learned opinion of this able and distinguished Court, we feel that 
we have no other course than to reverse the Referee's conclusions of 
law, and find that under the facts as stated, as found by him, the re- 
lationship of employe and employer did not exist between Louis 
Osika and the Hudson Coal Co. npon the day of the accident, as de- 
scribed in the testimony; that when he sought and gained permission 
to remove his tools from the premises he was not furthering the in- 
terests of his employer, that he was not in the course of his employ- 



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232 

men i, and that when he was injured he was only, as far as the com- 
pensation law is concerned, a stranger to the employer and not enti- 
tled to protection under the Act. . 

The award of the Referee is thereby set aside, and compensation is 
disallowed. 



Shoto v . Lehigh & Wilkes-Barre Coal Co. 

Practice and procedure— Burden of proof — Failure to show injury. 

Where the deceased diet! from blood poisoning alleged to have resulted from a ZM 
received lifting a rock, tio compensation mill be awarded when there is no subs ran 
live evidence that the decedent sustained an injury to the physical structure ol 
his bod;. 

Appellant represented by Roger J. Dever, Wilkes-Barre. 
Appellee represented by Evan C. Jones, Wilkes-Barre. 

OPINION BY MACKEY— Chairman— July 1, 1921. 

George Shoto, the husband of the claimant, died March 26, 1919. 
Nine mouths thereafter, on December 29, 1919, a claim petition was 
tiled alleging that while the deceased was lifting a rock, on February 
26 1919, he cut his finger, and that he subsequently died of blood- 
poisoning. 

The Keferee has found, from the uncontradicted evidence, and there 
has been no appeal from this finding ;— that at no time was there 
any report made to the defendant company of any injury sustained 
by the decedent while in the course of his employment on February 
25, 1919. At the hearing before the Referee the medical attendant 
of the decedent was not called by the claimant, but, on the other 
hand, the defendant placed him upon the witness stand. This 
physician testified, "I treated Shoto, not for the company but for 
himself. The primary cause of death was myocarditis; secondary 
cause, axillary abscess. He never complained to me of jin injury. 
He did not complain of any cut on his finger. This abscess could 
come from many causes; I do not know what this one came from. 
1 make special note of all cases of injury, ever since compensation 
has been in effect. I have no note of any injury to this man. I 
cannot say what caused this abscess." 

The Referee, therefore, very properly found that "there is no sub- 
stantial evidence that the claimant's decedent sustained an injury to 
the physical structure of his body, as alleged in her claim petition, 
where it is alleged that George Shoto, the deceased .employe, while 
in the course of his employment with the defendant on February 25. 
1919, sustained a cut to the top of his finger while lifting a rock." and 
developed blood poisoning." 

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The findings of fact and conclusions of law of the Referee are ac- 
cordingly affirmed, and the appeal dismissed. 



Brown v. Pennsylvania R. K. Co. 

Injure — Incapacitated for Ie*$ than ten (Jaw*. 

Where a claimant Buffered an injury but fuils to show in his tcstimoney that he was 
incapacitated for a greater period than ten days, compensation «ill lie denied. 

Claimant not represented. 

Defendant represented by H. Z. Maxwell, Philadelphia. 

OPINION BY COMMISSIONER JARRETT— July 8, 1921. 

HEARING DB NOVO AT PITTSBURGH. 

The testimony produced by the claimant before the Board at the 
hearing de novo does not, in onr judgment, add any tiling material 
to the testimony taken before the Referee. The Referee was there- 
fore correct in his decision and we will adopt it as the decision of 
the Board. 

FINDINGS' OF FACT. 

1, That no notice was served by either party upon the other, re- 
jecting Article III of the Workmen's Compensation Act of 1915. 

2. That the claimant, Milford G. Brown, was employed by the de- 
fendant, Pennsylvania R. R. Co., as a car repairman's helper, at an 
average wage in excess of $20 per week, payable semi-monthly and 
has filed a claim petition, alleging that on October 29, 1920, while 
assisting some fellow workers in lifting an office paper press for the 
purpose of removing it from the building in which it was located 
to another building, on account of the recent landslide from the 
Bigelow Boulevard to the tracks of the Pennsylvania R. R. Co., he 
wrenched his back. He continued to work, finished his day, made 
no report of the accident, but worked irregularly up to the present 
time. He wrote a number of letters (identified as Exhibits lAl, B 
and C) stating that he was sick. On December 22 Dr. Alexander, 
the company physician, examined him at which time the claimant 
complained of tenderness over the back but Dr. Alexander was un- 
able to find any objective evidence of injury, but strapped him and 
told him to procure a brace; and from all the testimony in the case 
we are unable to find that the claimant sustained any injury which 
incapacitated him for a greater period than ten days. 



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CONCLUSIONS OF LAW. 

Upon the facts appearing in this claim petition, the Board arrives 
at the following conclusions of law; 

1. That Article III of the Workmen's Compensation Act of 1915 
applies to the contract of employment existing between the claim- 
ant and the defendant on October 2ft, 1S20. • 

2. The claimant having failed to establish that he received any 
injury by accident which incapacitated hira for a greater period 
than ten days, he is not entitled to recover compensation, as cou- 
templated by the Workmen's ompensation Act of 1915. 

DISALLOWANCE. 

The Board accordingly disallows the claim of Milford G. Brown, 
claimant, and against the Pennsylvania R. R. Co., defendant, for the 
reasons set forth in our second conclusion of law. 

No bill of cost filed. 



Bolin v . Semet-Solvay Co. 

Course of employment — Living on premise* of employer when killed. 

Whore deceased was killed by being struck on the temple while sleeping in -a 
hunk house furnished by the defendant company for the convenience of its employe*, 
compensation will be denied when his presence was not required on the preinise-s 
at the time of the accident by the nature of his employment, and the deceased was 
not obliged to remain there lifter the completion of his day's work. 

Claimant represented by Frank P. Barnliart, Johnstown. 
Defendant represented by J. D. Darragh, Pittsburgh. 

OPINION BY COMMISSIONER JARRETT— July 8, 1921. 

Joseph Bolin, the deceased employe account of whose death com- 
pensation is claimed, was in the employ of the Semet-Solvay Co., 
defendant, in its bunk house at its coal mine near Johnstown, Cam- 
bria county. He was employed as a kitchen helper, his duties being 
to wash cooking utensils and clean up about the kitchen and dining 
room. His usual hours of work were from 6 a.m. to 7 p. m. He re 
ceived as wages thirty cents per hour. 

It appears from the testimony that the defendant erected a bunk 
house to provide sleeping quarters and an eating place for its em- 
ployes as it was very dimiu.lt to obtain board and lodging in John 
Ktown and that all of the employes, including the claimant, who de- 
sired, received lodging free of charge. Employes were charged 45 cts. 
for each meal but the decedent, was paid 30 cts. an hour, board and 
lodging both furnished free of charge; the board and lodging were 



23D 

uot considered as part of his wages as the testimony shows that if 
the decedent had boarded off the premises at his own expense his 
wages would have been the same, to-wit, SO cts. per hour. 

When the decedent's day's work was done he would ring out on u 
time clock and if there was any other work for him after he rang 
out, he would be paid for overtime. The testimony shows that ali 
of the employes in the bunk houses and employes living off the prem- 
ises were subject to call after their day's work was done and they 
had rang ont, but it was no part of the contract of hiring that they 
(employes living on or off the premises) were obligated to respond. 
Failure to respond would only bring the disfavor of the defendant. 
The decedent was not required to be on duty after he had rang out. 
only if called as stated. His time was his own to do as he pleased ; 
he was as ft-ee'as if he had been occupying quarters at his own 
expense off the premises. 

Rome time previous to his death the decedent purchased a suit 
of clothes and for fear that they would be stolen from him, he got 
permission of Thomas Campbell, the chef, who had a private room 
in the bunk house, to keep his clothes and change them in the chefs 
room. On the evening of September 11, 1920, the chef, Mr. Campbell, 
made it known to the decedent that he was going to Pittsburgh and 
the decedent expressed a desire to go with him. Mr. Campbell 
permitted him to go along and they left -Tohnstown after the day's 
work was done, and went to Pittsburgh, both intending to return the 
same evening. 

It appears that Mr. Campbell changed his mind about returning 
and stayed over night at his home in East Liberty, but the decedent 
returned to Johnstown, leaving East liberty Station shortly after 
12 o'clock midnight. Before leaving East Liberty Mr Campbell gave 
decedent a key to the restaurant so that he could go to his room and 
rhange clothes where he kept them, as stated, Mr. Campbell did not 
tell him to stay in his room. He did. however, tell him to be sure 
and see that the men got tr> work after being called by the watchmen. 

On the morning of September 12, 1i>2». decedent was found dead 
lying on the bed in Mr. Campbell's room. He had been dead for three 
or four hours as the body was cold and the only mark of violence was 
on the left temple. A post mortem was held, revealing a hemorrhage 
of the brain, evidently the result of the blow on the left temple. The 
only explanation of de.nth was that a former employee who had been 
discharged by Mr. Campbell had threatened to do him injury; the 
presumption, therefore, being that the person who struck the blow 
and killed the decedent thought it was Mr. Campbell. 

The Referee awarded compensation and the insurance, carrier Inter- 
vening defendant, has annealed, contending that the decedent did not 
meet death while in the course of his employment as contemplated 
hv the Act. 



236 

The decedent was not actually engaged in the furtherance of the 
business or affairs of the defendant so therefore, in order to award 
compensation, the evidence should show that the necessary of the 
following requirements have been met. See Section 301 of the Act: 

1. That the injuries were sustained due to the condition of the 
premises or due to the operation of the defendant's business or 
affairs. 

2. That the injuries were sustained on premises occupied by 
or under the control of the defendant or upon which the defendant's 
business or affairs were being carried on. 

3. That the decedent's presence thereon was required by the 
nature of his employment. 

We are satisfied that there is sufficient evidence to show that the 
injuries were caused by the condition of the premises, to- wit, the 
place was not properly protected ; also that it was due to the opera- 
tion of the defendant's business or affairs in that the person who 
struck the blow did so out of revenge against the chef, Mr. Campbell, 
as Mr. Campbell had discharged him from the employ of the defend- 
ant; also that the injuries were sustained upon premises not only 
occupied by the defendant but under the control of the defendant 
and where its' business or affairs were being carried on. 

All requirements have been met hut the third and the question 
is: Was his presence required on the premises at the time of the 
accident by the nature of his employment? 

What was the nature of Ms employment? As we see it, he was 
9 kitchen helper, his duties were to wash cooking utensils and 
clean up about the kitchen and dining room of the bunk house of 
defendant located on defendant's premises. His hours of employ- 
ment were from 6 A. M. to 7 P. M. ; his wages were 30 cts. per hour 
with board and lodging free, which was furnished by the defendant 
but was no part of his wages. He was not compelled to stay on 
the premises after his day's work was done, but while on the premises 
after his day's work was done, he was subject to call to duty by 
the defendant but was not obligated to respond. If he did respond 
it was only a favor. 

Now, was he "required" by the nature of his employment to be 
on the premises at the time of the accident. It is to he noted 
that the words "by the nature of his employment" are limited in 
Jheir scope by the word "required" and we think that the word 
"required" as used means that it is absolutely necessary (before 
compensation can be awarded under facts as here) that an employe 
lie on the premises at the time nf the accident to carry out what 
he is obligated to do. Under the facts here, the defendant was not 
obligated to furnish the free board and lodging and the decedent 
was not obligated to remain on the premises after his day's work 



287 

was done. It is true that if he did remain he was subject to call 
to duty bat he was not obligated to respond. We therefore cannot 
see how the decedent's presence was required at the time of the 
accident by the nature of his employment. 

When the decedent rang out his day's work was done; the relation- 
ship of employer and employe ended for the day; he was free to 
go when and where he pleased just the same as if he lived off the 
premises. The best evidence that the decedent was not required by 
the nature of his employment to be on the premises after his day's 
work was done, is the fact that lie without permission of the de- 
fendant, which permission, of course, was not required left the prem- 
ises of his own free will and accord and went about his own private 
affairs. 

It may, however, be said that inasmuch as it was difficult to 
obtain board and lodging in Johnstown that the defendant erected 
this bonk house so as to obtain and hold the necessary labor to 
operate its plant and that therefore it was for the benefit of the 
defendant that the decedent was on the premises and his presence 
under the circumstances was required by the nature of his employ- 
ment, but it is to be remembered that there was nothing to prevent 
the decedent, if lie pleased, to inconvenience himself by setting up 
living quarters off the premises or to take such board and lodging as 
he could obtain in Johnstown. He, however, rather than suffer this 
inconvenience, took advantage of the convenience which was fur- 
nished him gratuitously by the defendant. He was on the premises, 
therefore, by choice and as a matter of convenience to him. 

Boiling the whole matter down, it leaves this in our judgment : 
That his presence was not required by the nature of his employment, 
hut his presence was provided for and permitted by reason of his 
employment. 

We have been unable to find a case in point, either decided by the 
Board or by the courts in our State. The nearest case we find in 
point Is Brosey v. Perlman, 2 Dept. Reports 838. In this case the 
claimant was employed as a shoemaker in the defendant's shoe shop. 
When he was hired he expressed a desire to live and hoard with 
his employer. Arrangements were made for this and on a certain 
day after finishing his work at noon the claimant went to the second 
floor of the premises for his dinner. On his return to the shop he 
went down a flight of outside steps which he used on his way from 
his room to the shop, and while descending these steps he fell, his 
fall being occasioned by the icey condition of the steps. The Board 
held that "he was not required by the terms of his employment to 
continue this arrangement ; he was free whenever he chose to secure 
a room and board at any other place;" that his presence was not 
required on the premises by the nature of his employment but on the 



contrary "was by virtue of a contractual arrangement wholly col- 
lateral to and independent, of the contract of employment." 

This case is not in point with the instant case in that the board 
and lodging was not furnished free and it was not difficult to obtain 
board and lodging, but we think however, that the same principle 
applies here. 

We have found the following authorities which we are of the opin- 
ion supports the position we take, notwithstanding the fact that 
the requirements of the statutes under which they have been decided 
require that the accident "arise out of and in the course of the em- 
ployment." 

'•An employe, a dishwasher in a hotel, having finished 
her work for the day, left the hotel to do some shopping. 
Iter working hours were from 7 A. M. until 5 P. M. In 
addition to the wages she was furnished board and 
room by her employer. After working hours her time 
was her own to do as she pleased. On the occasion 
questioned she returned to the hotel at 10:30 P. M. and 
on her way to Iier room she fell on some marble stairs, 
breaking her arm. It was held that she was not entitl- 
ed to compensation as the injury did not arise out of 
and in the course of her employment." Doherty v. Em- 
ployers Liab. Assur. Corp. Ltd. 1 Mass. .Workm. Comp. 
Cas. 450 (1913) ; 12 N. C. C. 668 

"Aj laborer in the employ of defendant company, who 
boarded in the cook house and slept in the company's 
bunk house, both places being upon defendant's prem- 
ises, after quitting work for the afternoon and while 
walking from the cook house to the bunk house, after 
supper, fell and sustained a dislocation of the left 
shoulder and a fracture of the left thumb. On a claim 
for compensation the Industrial Accident Commission 
held that the accident did not occur in the course of 
applicant's employment or while he was performing a 
service growing out of his employment for the reason 
that the accidents happening outside of working hours 
are not compensable." Mahoney v.. Sterling Borax 
Co., 2 Cal. Ind. Ace. Comm. 700 (915) ; 12 N. C. C. 668. 

"An employe was injured when a hut in which- he was 
living on the premises of his employer blew down while 
he was in bed. It appears that the employer required 
a large number of employes and erected huts and sleep- 
ing accomodations for such employes as could not be 
housed locally. Eady L. ,T., denied compensation on the 
ground that there was an interruption of a continuity 
of rinployment and said that the case was similar to the 
case of any workman living in a house provided by the 
employer as part of the remuneration for these services. 
He was not living in the hut on any term of contract for 
his employer's benefit that he should be there; he was 
given the choice and was free as he pleased to come and 



)gle 



go." Philban v. Haves, 11!) L. T. R. 133; 17 N. C. C. 
!)47. 

(Jounsei for the claimant has cited Sanders v. Charleston & W. 
C. B. Co. in 81 S. E.; 6 N. C. C. 83. In this case the claimant was 
a menber of an iron gang in the employ of the defendant laying 
rails on defendant's line and the claimant was injured while asleep 
in a bunk in a shanty car furnished by the defendant for the accomo- 
dation of such employes while it was standing on a side track in a^ 
special freight train. Compensation was allowed; the court said 
in affirming the award. 

"When the plaintiff was in the bunk of his shauty car 
in the 'sleep that knits up the ravell'd sleeve of care' 
and getting strength to lay rails next day, the law 
imputed to him actual service on the track and extended 
to him the rights of such work; 'for the letter (of the 
law) killeth but the spirit giveth life.' " 

We have not before us all the facts in this case, but likely the clai- 
mant was required to move from place to place to do the work re- 
quired of him and it was required of him, in order to follow up the 
work, to sleep in the bunk car not only for his convenience but the 
convenience of the defendant, while in the case at hand the decedent 
was permanently located and rather then inconvenience himself by 
obtaining his board nnd lodging in Johns-town or setting up living 
quarters off the premises he took advantage of the offer of the de- 
fendant to avoid this inconvenience. 

Counsel for the claimant has also cited the case of Small v. Mac- 
beth-Evans Glass Co., decided by Common Pleas, Washington county, 
not yet reported. We think this case or the line of cases therein 
cited have no application here as the accidents in these cases hap- 
pened during the working day, the continuity of the employment 
was not broken, but in the case at hand the day's work was done; 
the employe had ran out; the continuity of the employment was 
broken. The relationship of employer and employe had ended ; he 
was free to go when and where he pleased. He was in the same 
position as an employe living off the premises. 

Even if the decedent's presence was required on the premises under 
his contract of hiring, under the facts here, we are of the opinion 
that the defedant is not liable for the reason that the testimony 
shows that the decedent at the time he met death was in a place 
where he was not required to be by the nature of his employment. 
He was in Campbell's room. See Kuca v. Lehigh Coal Co., 268 Pa. 
163 ; 6 Dept Reports 171ft 

It may be said that inasmuch as Mr. Campbell, the chef, told the 
decedent to be sure and get the men out in the morning, that this 
would require his presence on the premises. It may be so that it 

a Dy Google 



241) 

would require hie presence on the premises but this was not part 
of his employment, neither was Mr. Campbell clothed with, authority 
to make it such. 

Belying on what we have said and stated, we hold that the claim- 
ants are not entitled to compensation for the reason that the deced- 
ent was not actually engaged ill the furtherance of the business or 
affairs of the defendant at the time of the accident, neither was his 
presence required on the premises at the time of the accident by 
flie nature of his employment 

We will therefore disregard the findings of fact of the Referee 
and substitute the following: 

FINDINGS OF FACT. 

1. No notice was served by Joseph Bolin. the decedent, upon 
the 8emet Solvay Co., defendant, or by said company upon him 
rejecting Article III of the Workmen's Compensation lAct of 1915. 

2. The defendant is the Semet-Solvay Co., of Johnstown, engaged 
in the mining of coal and manufacturing of coke in Cambria county. 

3. The decedent, Joseph Bolin, was in the employ of the defendant 
company as a kitchen helper; his duties were to wash cooking 
utensils and clean up about the kitchen and dining room of the de- 
fendant's bunk house. On December 12, 1920, not during working 
hours, he was found dead, his death being due to being struck on the 
head by the hand of some unknown person, but who is thought to 
be a person who was discharged from the employ of the defendant 
by Thomas Campbell, the chef, employed in the bunk house of tbe 
said defendant 

4. The wages of the decedent at the time of death were in excess 
of |20 per week. 

5. The funeral expenses of the decedent were in excess of $300, 
no part of which has been paid by the defendant. 

6. The decedent left to survive him his parents, tbe claimants, 
residing in Boonville, Indiana, and who were at the time of his death 
partially dependent upon him. 

7. The decedent met his death on the premises of the defendant 
by accident, but his presence was not required by the nature of his 
employment. 

CONCLUSIONS OF LAW. 
We make the following conclusions of law which automatically 
set aside the conclusions of law as made by tbe Referee: 

1. No notice was served by Joseph Bolin, the decedent, upon the 
Semet-Solvay Co., defendant, or by said company upon him reject- 
ing Article III of the Workmen's Compensation Act of 1915. 

2. The decedent having met his death by accident on the premises 
<£. the defendant company but he not being actually engaged in the 



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241 

furtherance of the business or affairs of the defendant, neither 
bis presence thereon being required by the nature of his employment, 
the claim is not compensable. We will therefore disallow compen- 
sation. 

DISALLOWANCE. 

The decedent having met his death by accident on the premises 

of the defendant, but not being actually engaged in the furtherance 

of the business or affairs of the defendant, nor his presence thereon 

required by the nature of his employment, compensator is disallowed. 



Moore v. State Workmen's Insurance Fund. 

Evidence — Burden- of proof. 

Where it is alleged that the deceased died as a result of the inhalation of poison- 
ous fumes while at work as b janitor, no award will be made when there is no com- 
petent evidence to show that he did inhale the fumes. 

Claimant represented by Louis Levinson, Philadelphia. 
Defendant represented by Samuel I. Spyker, Huntingdon. 

OPINION BY COMMISSIONER HOUCK— July 8, 1921. 

The claimant's deceased husband was employed by the University 
of Pennsylvania as an assistant janitor. He worked in the John 
Harrison Chemical Laboratory and on August 22, 1919, while in the 
course of his employment, he collapsed. He was immediately re- 
moved to the University Hospital where he died the same day, death 
being due to acute cardiac dilatation of the heart. The claimant 
contends that the decedent inhaled poisonous gases while at work on 
August 19, three days prior to his death, and that the inhalation of 
the poisonous gases was the cause of death. The Referee disallowed 
compensation on the ground that the cause of death could not be 
connected with the inhalation of gas, and that there was no testi- 
mony to show that the decedent inhaled any gas of injurious character 
which would cause his death. From this finding the claimant has 



The only evidence in the record showing that the decedent inhaled 
any poisonous gas on August 19, is heresay evidence consisting of 
statements made by the decedent to the witnesses after he returned 
from work on the evening of August 19. Evidence of this character 
is not sufficient to sustain an award. Besides this, there is the posi- 
tive testimony of Dr. William T. Taggart, who had charge of John 
Harrison Laboratory, that the decedent, in August, 1919, was not 

16 

DonzedeyOOOgle 



doing anything that brought him in proximity to the gasps and acids 
which were in the laboratory. 

The claimant contends that the evidence of Dr. William S. Wads- 
north, who performed an autopsy on the decedent, supports her 
claim. The autopsy disclosed that the decedent's heart showed some 
myocarditis, with the same condition of the latge blood vessel leading 
from the heart. There was also chronic bronchitis with thickening 
of the walls of the bronchial tubes and a chronic condition of the 
stomach and kidneys, and the doctor stated that he did not have 
sufficient evidence to state positively whether the decedent had or 
had not inhaled poisonous gas. He also stated that the cause of 
death was heart disease and his examination did not disclose any gas 
poisoning. 

After a careful review of all the evidence in the case, the Board is 
convinced that the Referee did not err in disallowing compensation. 
The claimant worked on the 20th, 21st and 22nd days of August 
following the alleged inhalation of poisonous fumes on the 19th; 
and in the absence of any competent evidence that he did inhale 
fumes on the 19th, or of the character of the fumes inhaled, or of 
the probable effect of the inhalation of the fumes, to say that the 
decedent had inhaled fumes which resulted in his death would be a 
mere presumption unsupported by any of the surrounding circum- 
stances of the case and would not warrant the making of an award of 
compensation. 

The findings of fact and conclusions of law of the Referee are 
affirmed and the appeal is dismissed. 



Dilez v. Baldwin Locomotive Works. 

Partial disability— I light icorfc — Duty of employe. 

Where an employe who was partially disabled, signed a final receipt, was fur- 
nished light work to perform and was then discharged, the final receipt will nut be 
Net aside and (he agreement reinstated until the employe establishes his ptvst'iit 
earning power. 

Claimant represented by Everett A. Schofield, Philadelphia. 
Defendant represented by Raymond Scott. Philadelphia. 

OPINION BY COMMISSIONER JARRETT— July 14, 1921. 

The claimant was injured on August 8, 1918, while in the employ 
of the defendant company and was paid compensation up until 
March 5, 1920, when compensation payments were terminated as of 
date. He returned to work the week of May 15,- 1920 and continued 
to work until about August 14, 1920, during which time he was em- 



ployed as a cleaner, performing only light work, but received the 
sume rate of pay he received at the time of the accident. He was 
discharged for having in his possession literature issued by the Com- 
munist Party, which contained statements of an inflammatory na- 
ture. On January 17, 1921, he filed this petition for review, asking 
that his compensation agreement be reinstated. The Referee made 
an order reinstating the original agreement which provides for total 
disability. Herein the Referee erred, as the record clearly shows 
that the claimant is not totally disabled as he worked from May, 15, 
1920, until about August 14. 1920. 

The claimant is physically able to do light work, therefore he has 
a certain earning power and it is his duty, under the circumstances, 
to establish what that earning power is, either by obtaining employ- 
ment or by presenting evidence as to what, in his opinion, he is able 
to do, showing in either case the wages paid ; the employer, however, 
having the right to show what in its judgment the claimant is able 
to do and the wages paid. With evidence of this kind it can then 
be determined whether or not the claimant is so disabled on account 
of the injuries as to entitle him to compensation. 

We will therefore set aside the findings of fact, conclusions of 
law and order of the Referee and grant a rehearing to be heard be- 
fore Warren G. Graham of the First Compensation District, who 
will dispose of the matter as on original hearing. 



O'Rhute p. Lehigh Valley Coal Co. 

PttcHiititiiw — Remit of employment. 

Winn' ilt iviwi'il. while in (In? course of Ills employment as a miner, became wot 
iik :i rrxiilt of water breaking through from another part of llie mine, walked a mile 
to Lis lifinic with liis clothes frozen, flint Inter died from pneumonia, compensation 
will be awarded for his dentil because the wetting and the freezing so mitieed his 
w-.il r.r\ Uii.i\- ;!(..i ili:> |i ,■ ., „ .i i i.. ■-; d lodgnuMlt in his hotly. 

Claimant represented by Roger J. Dever, Wilkes-Barre. 
Defendant rep re sen led by Daniel W. Kaereher, Pottsville. 

OPINION BY COMMISSIONER JARUETT— July 19. 1921. 

HEARING DE NOVO 

FINDINGS OF FACT. 

I. The claimant's deceased husband, Thomas O'Shute, account 

nf whose death eon iiien nation is claimed, was in the employ of the 

defendant company, whose business is coal operator, at its Packer 

\n. 4 colliery on February *.(!, 1920 as a contract miner. On saM 

date between 1 and 2 o'clock P. M. the deceased was actually engag- 

Goosle 



244 

ed in the furtherance of the business or affairs of the defendant, to- 
wit, the decedent and a fellow employe were up in a manway of East 
Mammoth, second level, to discharge a shot of dynamite and whih* 
there the water broke through from another part of the mine, carry- 
ing the decedent down the chute into the gangway and as a result 
the clothes of the decedent were wet through. The decedent lived 
about a mile from the colliery and soon after the accident he walked 
to his home. The weather was cold and the clothes of the decedent, 
owing to being wet, became frozen. The decedent worked the next 
day nntil 12 o'clock noon and was taken ill. He went to his home 
and stayed about the house the rest of the day. On the following 
day his wife sent for Dr. H. H. Holderman, who, upon arrival, found 
decedent critically ill with influenza pneumonia, of which he died 
March 5, 1920. 

2. We find as a fact that the wetting decedent received by the 
accident and his clothes freezing on him while going to his home bo 
reduced his vital resistance that the influenza pneumonia found 
lodgment in his body and as a result of the lowered resistance the 
disease quickly developed hastening the death of the decedent on 
March 5, 1920. 

3. The injury received by the decedent was violence to the phys- 
ical structure of his body by accident and the influenza pneumonia 
and its quick development were, under the circumstances, a natural 
resultant effect therefrom due to the lowered resistance. 

4. The claimant is the decedent's widow. She was dependent 
upon him for support; so also were the following children of the 
couple: Walter O'Slmte, born June 27, 1913; John O'Shute, born 
April 26, 1915; Sarah O'Shute, born May 20, 1917; and Edward 
O'Shute. born May 19, 1019. 

5. The weekly wages of the decedent were more than $20 and 
were paid semi-monthly. 

6. Dr. H. H. Holderman who attended the decedent did not 
charge anything for his services. 

7. The expenses of the sickness and burial were more than ?100. 
The defendant company paid no part of them. 

8. ' Both parties to the contract of hiring were bound of the pro- 
visions of the Workmen's Compensation Act of Pennsylvania. 

CONCLUSIONS OP LAW. 

1. The decedent having met with an accident while actually en- 
gaged in the furtherance of the business or affairs of the defendant, 
the result of which so lowered his vital resistance as to cause his 
death as above stated, and both the defendant and the decedent 
being bound by the provisions of the Workmen's Compensation Act 



of 1915 and its amendments, and the claimant and children being 
dependent upon the decedent for support at the time of his death, 
the claimant and the children are entitled to compensation as pro- 
vided by the Act. 

AWARD. 

Compensation is awarded as follows: 

To the widow, Mrs. Katie O'Slrate, 60% of $20 or $12 a 
week, from March 7. 1920 to December 5. 1925, 300 
weeks $3600 00 

To the guardian of Walter, John, Sarah and Edward 
O'Shute, children, 45% of $20 or $9 a week from Dec- 
ember 6, 1925 to June 27, 1929, 185-5/6 weeks 1672 60 

To the guardian of John, Sarah, and Edward O'Shute, 
children, 35% of $20 or |7 a week from June 28, 1929 
. to April 26, 1931, 95£ weeks 668 50 

To the guardian of Sarah and Edward O'Shute, .Children, 
25% of $20 or $5 a week from April 27, 1931 to May 26. 
1933, 108-5/6 weeks 544 17 

To the guardian of Edward O'Shute, child. 15% of $20 or 
$3 a week from May 27, 1933 to May 19, 1S35, 103-1/3 
weeks ■ ■ . . 310 00 

$6,795 17 
And in addition, for funeral expenses - 100 00 

$6895 17 



Kemmerling v. Adams Express Co. 

Compensation agreement — When made verbally. 

Where there was no formal agreement between the claimant and the ilcfendant, 
but there was an agreement between the parlies for compensation, which was paid, it 
is sneb an agreement which binds the defendant, and it can be reinstated. 

Claimant not represented. 

Defendant represented by Wm. A. Schnader, Philadelphia. 

OPINION BY COMMISSIONER JARRETT— July 19,1921. 

The claimant was injured on March 7, 1918 while in the employ 
of the defendant company. No formal agreement for the payment 

a Dy Google 



240 

of compensation was entered into between the parties but compen- 
sation was paid under verbal agreement up to May 20, 1918, total 
$61.60 and upon payment of May 20, 1018, the claimant signed a 
final receipt. The final receipt was forwarded by the defendant to 
the Department of Labor and Industry. The claimant returned to 
work on May 20, 1918, and worked to December 11, 1920, and on 
February 1, 1921, filed the petition before us for reinstatement of 
the compensation agreement, alleging in substance that owing to the 
condition of his leg which was injured by the accident, that he is 
incapacitated for work. 

Referee Graham ordered the reinstatement of the agreement in 
the following words: 

"On the facts above cited the Referee concludes as 
a matter of law that the claimant is entitled to have 
his compensation reinstated, and accordingly, the de- 
fendant is directed to pay compensation to the claim- 
ant at the rate of $7.70 per week from December 11, 
1920 until such time as his disability ceases or changes 
in extent within the limitations of the Workmen's Com- 
cnsation Act 'of 1915." 

The defendant appealed and contends that certain findings of fact 
of the Referee are not supported by the testimony and the following 
errors of law were committed by the Referee: 

"1. The Referee having found as facts that no com 
pensation agreement was ever entered into between the 
claimant and defendant; that claimant did receive 
compensation but that his last compensation was paid 
in May 1918 ; and there being no evidence of any claim 
petition filed prior to the present petition for rein- 
statement, claimant's claim for compensation is barred 
under Section 315 of the Workmen's Compensation Act 
of 1915." 

"2. As there was neither agreement for compensa- 
tion nor award of compensation to the claimant prior 
to the filing of this petition, there is nothing which 
could be reinstated upon the said petition." 

After "a careful examination of the record, ive are satisfied that 
there is no merit in the appeal of the defendant wherein it contends 
that the findings of fact, of the Referee are not supported by the tes- 
timony. We are satisfied that there is ample testimony to support 
his findings. 

As to the alleged errors of law of which the defendant complains, 
it is true that there was no formal agreement between the parties 
for the payment of compensation; that is, there was no written 
agreement filed as provided by the Act, but there was an i 



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247 

between the parties for compensation which is clearly shown by the 
record, and it was such an agreement as to bind the defendant, and 
such an agreement that can be ordered, or by agreement of the 
parties, be reinstated. Even if the Referee erred in this particular, 
it is to be noted that he directed that the defendant pay compensa- 
tion to the claimant at the rate of $7.70 per week from December 11, 
1920. This in effect is an award, which, we are of the opinion, is 
binding upon the defendant and is such that it can be filed in the 
Court of Common Pleas and become a lien as provided hy the Act. 

The claimant's petition is not barred by the limitation section 
of the Act. See John A. Hughes v. American International Ship- 
building Corp., et al, 270 Pa. 27 ; 7 Dept. Reports 706. 

The findings of fact, conclusions of law and award of the Referee 
are sustained and the appeal is dismissed. 



Turner v. John Eichleay, Jr. Co. 



Where claimant had a fracture; of the leg about six indies above the knee joint, 
bo that the hamstring tendons threw the leg backward, nud it is a mechanical im- 
possibility for him to walk in that condition, he lias lost the use of his leg. 

Claimant not represented. 

Defendant represented hy M. F. Trader, Pittsburgh. 

OPINTON BY MACKEY— Chairman— July 19, 1921. 

The petitioner in this case was employed by the defendant as a 
structural iron worker, and while in the course of his employment 
on December 1, 1917, sustained an injury in the nature of a fracture 
of the femur of the left leg and a sprained ankle. 

Following this injury claimant and defendant entered into Com- 
pensation Agreement J*o. 509440 for the payment of compensation 
at the rate of $10 per week, and under this agreement compensation 
was paid the claimant up to October 10, 1918, in the total sum of 
$430. On October 16, 1918, defendant petitioned the Workmen's 
Compensation Board to terminate the agreement, alleging that dis- 
ability had ceased on October 8, 1918. This petition waR referred 
to Referee Henderson. Hearing was held thereon, and an order 
made disallowing the petition to terminate, and directing that pay- 
ments continue under the agreement until the claimant's disability 
had censed. 

On April 11, 1919, the claimant (lied a petition with the Work 
men's Compensation Board f-c commutation of further installments 

zeaov Google 



248 

for compensation, which petition was necessarily refused by the 
Board for the reason that such petition could not be considered, in- 
asmuch as the agreement for compensation was for an indefinite 
period covering undetermined injuries. 

On August 26, 1919, defendant again petitioned the Workmen's 
Compensation Board to terminate the said agreement, alleging that 
the claimant had fully recovered and was able to do a full day's 
work. This petition also alleged that the claimant was malinger- 
ing, and giving himself over to excessive drink. This was the peti- 
tion that was passed upon by Referee Henderson. 

We find the following in the Referee's report: 

"The claimant was examined by Dr. W. A. Caven on July 10, 
1919, who obtained a history of a fractured left femur near the 
middle and a sprain of the left ankle. Claimant also sustained an 
injury to the right leg in the nature of a fracture on another date 
in another manner. Left leg is approximately two inches shorter, 
on account of the ends of the fractured bone overlapping. An ex- 
ray was taken of the union, which disclosed a strong, firm union of 
the bone, although overlapping about two inches. There is an ex- 
cessive amount of callus thrown out around the fracture. Claimant 
has some disability in the right leg. which was injured at another 
time. Right leg was somewhat swollen and deformed. Claimant 
also had tremors at that time, and snowed evidence of excessive use 
of alcholic drinks. He has some little enlargment at the ankle joint 
on the inside of the left ankle. He is able to walk quite well, and 
at the time of the hearing his total disability had ended. He may 
still have some partia! disability, but as he has not- attempted to 
do any working, the extent of any partial disability could not be 
determined. He has been paid compensation up to August 8, 1919, 
in the sum of $860. The defendant company has offered him em- 
ployment, which offer still holds good. The claimant has not seen 
fit to return to work." 

The report then concluded: 

"That claimant's total disability having ended on September 29. 
1919, the date of the hearing, the defendant is entitled to have com- 
pensation under Agreement No. 509440 terminated as of that date. 
The claimant should return to work, and if he has any partial dis- 
ability the amount thereof can then he determined." 

The Referee also handed down the following order: 

"Tour Referee accordingly orders and decrees that compensation 
under Agreement Xo. 509440 for total disability be terminated as of 
that date. September 29. for the reason that the claimant's total dis- 
abilitv had ended as of that date." 



wuzecit* Google 



Tliis action of the Referee came before the Board on appeal and 
on December 31, 1010, the appeal was dismissed, as will be seen by 
the opinion of the Chairman, for the reason that the Act of Assembly 
as to the time of taking same had not been complied with. There- 
fore, tbe merits of the case were not considered. 

On March 24, 1020, the Common Pleas Court of Allegheny county 
sustained this action of tbe Referee and the Board. Subsequently, 
another petition was filed to reinstate such compensation agree- 
ment. This petition was dismissed for want of appearance on the 
part of the claimant; but finally another petition praying for the 
same action of the Board was filed, and again assigned to Referee 
Henderson. On October 20, 1020, the Referee denied the petition. 

Upon this latter petition the Referee handed down the following 
order : 

"Your Referee accordingly disallows this petition for 
tbe reason claimant's disability has not changed since 
tbe date of termination, Beptember 23, 1019, and directs 
that the claimant secure employment of such character 
as he can perform, and if he has any loss of wages by 
reason of his injuries, the parties can enter into a sup- 
plemental agreement, or the claimant can petition the 
Workmen's Compensation Board to determine the 
matter." 

And again, qn December 20, 1020, the claimant filed a petition 
to set aside the final receipt and review the agreement, as follows: 

"I petition that the final receipt be set aside as my 
disability has never ceased." 

This petition was referred directly to the Board under the powers 
accorded to it under the Amended Act of 1919, and upon February 
10, 1921, the full Board heard the petition. The claimant then 
made tbe following statement: 

"All I can say is, the testimony from the different 
doctors and physicians that examined me, stating that 
T would never he able to do any heavy kind of laborer's 
work of any kind; also I never would be able to work 
at my trade, and I have never done anything else but 
hard work, worked outside all my life and made a good 
living at my trade. And those rights are taken away 
from me. I didn't have very much schooling, haven't 
any education to work in some office. At different 
times the circulation in my back stops entirely and I 
have to go to bed and stay there and keep off my feet 
and be treated until I get better. And since my injury, 
on December 1. I have never had a night's rest, through 
my leg — it wasn't a fracture like an ordinary fracture 
would be. I was in the hospital 3 months and 18 daysj 



)gle 



260 

and after my leg was broken there was a pulling on 
my leg and it turned my leg completely around— in 
fact, nervous in there, that I haven't got control of it, 
and it will hardly hold the weight of my body, although 
I limp around on it. The doctors at different times 
said that if my arm was injured the same as my leg, 
it would be totally gone. The only reason is it is my 
leg, and I have to stand on it, and wear an artificial 
brace and try to get along on it to walk * • • The 
only thing that I tried to do outside of spending money 
on physicians and treatment on my leg, I took a job 
for a company collecting for them at small wages ; and 
1 tried to work in a gang, sorting material, for a day 
or so, and through that I could have made a little more 
money, and I couldn't do that, and I was taken to my 
room and stayed there for four or five days after, from 
the results of it. And afterwards I went to them and 
lold them that I had to eat and live, and I had to do 
something, that I didn't know anybody else to go to, 
I couldn't get no compensation, and I hadn't got any 
for over a year." 
The Hoard then made an order that it would select a competent 
■ disinterested surgeon to examine the claimant, and fixed a date to 

hear his testimony. This was accordingly done, Dr. James O. 

Wallace was selected, and his testimony was taken on April 7, 1921. 

The following is hie testimony in full: 

"Direct examination by Chairman llackey: 

Q. Doctor, you examined Mr. Turner? 

A. Yes, I examined Turner three- seven-twenty one. 

Q. What sort of an examination? 

A. I examined both limbs. He has a history of a 
fracture of his left thigh and injury to his left ankle. 
It happened December 1. 1917. He was in the Grand- 
view Hospital about three and a half months, and his 
chief complaints were weakness of leg and no control 
over it, couldn't bear weight on it; hadn't any use of 
his left foot, and when he stands his ankle rolls out 
and his knee recurves backward. On examination with 
him walking his knee recurves backward — his knee 
goes back that way (ind.) His left foot has a plas- 
ticity of the tendons on the outside which throws it in 
this way (ind.) 

Since his accident he has had a fracture of both bones 
of the right leg, and they have been fixed with some 
bowing, and leaves it with about one inch shortening, 
so that that compensates to about one inch shortening 
which he had in bis left leg, which must have been at 
least two inches. The X-ray pictures show that the 
whole trouble here — the posterior view taken straight 
down shows that there is an outward bowing of the 



agle 



251 

femur, and of course this throws the knee out of line. 
The side view shows the damage. This is a view taken 
this way (ind.i Id his injury he had a fracture of, 
I would imagine, about five or six incites above the knee 
joint. In most of those injuries unless they are taken 
care of properly, the hamstring tendons throw the leg 
backward, and they slide outward and hack. That is 
what has happened in his case, the lower fragment has 
been pulled down and slit up, and the other one comes 
down and rests on the top of it, so it shows an over- 
lapping on the X-ray of at least two inches. That 
throws the knee joint backward. Ilia knee joint is 
thrown both backward and the lateral diameter is 
thrown off. In order for him to walk with that knee 
joint pointing upward backward about fifteen degrees, 
his lower leg lias to come up and round a circle at that 
angle, and that is what is causing' his deformity. It 
shows clearly on the X-ray. This man hasn't any use 
of that leg. It is a mechanical impossibility for him 
to walk in the condition it is because his knee goes 
back. It has got to go back that way in order to 
articulate properly with the femur. In addition with 
the leg bowing out throws him also with an angle in 
that direction, and the knee joint instead of being 
practically horizontal throws upwards. 

Now this man can be fixed up. Ton will have to 
have an open operation on the lower end of that femur, 
and point fragments up. I don't believe it would be 
advisable to do much lengthening, but there could be 
anosteotomy and put his knee in good condition." 

From this testimony it is perfectly clear that the claimant has 
lost the use of his leg as a result of the accident which he suffered 
in the course of his employment for the defendant. This case is 
entirely on all fours with Joseph Gairt v. Curry Coal Mining Co.. 
5 Board Decisions, 397, subsequently affirmed by Judge Evans of 
the Court of Common Pleas of Cambria county in 7 Dept. Reports, 
74. 

When theReferee entered his order of termination of October 23, 
1919, under the law he merely suspended compensation and directed 
the claimant to go out into the open market to demonstrate his earn 
ing ability, to determine whether or not there was any partial earn- 
ing capacity in him. The history of this case as we have recited 
it in this opinion clearly indicates that the claimant has pursued 
his rights with persistency, and has always asserted his loss of the 
use of that leg. The evidence fails to disclose any lack of duty upon 
the part of the claimant, but as in the Gairt case, he has clearly 
demonstrated, in his attempt to prove partial disability, that from 
the very beginning he has suffered total disability in that leg. 



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The final receipt was executed therefore under a mistake of fact, 
and the name is set aside, and the compensation agreement is modi 
fied to provide for the loss of the use of the leg, with credits to the 
defendant for compensation already paid. 

ORDER. 

It is hereby ordered that Compensation Agreement No. 509440 
be modified to provide for the loss of the use of a leg for 215 weeks 
from December 15. 1017, at SJ10 per week, the defendant to be given 
credit for $430 as compensation already paid on account of the said 
original agreement. 

Gonsales v. Bethlehem Steel Co. 

Foot — Loss of use of. 

Where claimant, as the result of having a bucket fall on his foot, had bis big toe 
and the adjoining toe with its corresponding metatarsal bone amputated, resulting 
in the loss of motion of the whole foot so that the only use be has of his foot is to 
bear bis body weight on the heel, he has permanently lost the use of his foot. 

Claimant represented by Isaac M. Price, Philadelphia. 

Defendant represented by George A. Vary and D. M. Searfass, Beth- 

OPINION BY COMMISSIONER JABBETT, July 22, 1921. 

HEARING DE XOVO 

The testimony taken before the Referee was adopted to be considered 
as if taken before the Board and additional testimony was taken which 
is attached to the record. This hearing de novo was granted forth- 
with ; the findings of fact, conclusions of law and order of the Referee 
of being set aside, but it seems that the stenographer has not made a 
note of it. 

FINDINGS OF FACT. 

1. The claimant was in the employ of the defendant company on 
the 22nd day of September, 1319 at its plant at Bethlehem, the busi- 
ness of the defendant being the manufacturing 1 of steel and steel pro- 
ducts. On said date while actually engaged in the furtherance of the 
business or affairs of the defendant, to-wjt, he was working in an ash 
car assisting in the unloading of it when the handle of the bucket 
was released by a fellow workman, which fell on the claimant's foot, 
resulting in the fracture of the left ankle. The claimant waa paid com- 
pensation up to .Tune 18, 1020, when he returned to work at light work. 
He worked for some time thereafter until the shop closed down and 
on February 11, 1921, he filed the petition before us for modification 



of hie agreement on the grounds of changed disability, alleging "I am 
unable to earn the same money on account of my injury and am not 
receiving any partial disability compensation and have lost the use of 
my left foot." 

2. As a result of the accident the big toe and adjoining toe 
with its corresponding metatarsal bone of the left foot have 
been amputated and as a result there is practically no motion in the 
remaining toes but in a position of marked flexion and no power to 
spring on the remaining portion of tbe foot in front of the ankle but 
that part is held rigid, and there is extensive scarring at the site of 
the amputation running along the inner line of the remaining portion 
of the foot and over the tarsal bones and also on the back of the foot 
near the joint. The only motion that is fuctioning in the foot is that 
of flexion and extension at tbe ankle joint and the ability to bear body 
weight on the heel bone. The ahility to spring on the toes and in that 
way carry the body foreward without a limp is removed. He walks 
with a decided lameness due to the fact that be is not able to spring 
forward with his body weight on the toes of the left foot. He is not 
able to carry out the function of springing on the toes and carrying 
body weight forward. The only use he has of the foot is to bear body 
weight on the heel. He has simply heel motion the same as with a 
peg leg. His condition being such as a result of the accident, we fined 
as a fact that he has permanently lost the use of his left foot. 

3. The wages of the claimant at the time of the accident were in 
excess of $20 per week. 

4. The parties were at the time of the accident bound by the pro- 
visions of the Workmen's Compensation Act of 1915. 

CONCLUSIONS OF LAW. 

1. The parties were at the time of the accident bound by the pro- 
visions of the Workmen's Compensation Act of 1915. 

2. Having found as a fact that the claimant has permanently lost 
the use of his left foot, he is therefore entitled to compensation as 
provided by Section 306 of the Workmen's Compensation Act of 1915. 

AWARD. 

There is accordingly awarded against the defendant, the Bethlehem 
Steel Co., and in favor of Peter Gonzales, the claimant, 50% of $20 
per week or $10 per week for a period of 150 weeks dating from four- 
teen days after the accident, the compensation already paid to be de- 
ducted from the amount due as herein awarded; 



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Saydock u. Delaware, Lackawanna & Western R. R. Co. 

- Course of employment — Employe killed while sleeping. 

Whore lh« deceased, who was a door tender in a coal mine, fell asleep while 
lying along Che car track, and was killed by a motor, his death is compensable 
under the Act, as the act of falling asleep was nothing more than an act of negli- 
gence on the part of the employe which does not defeat the right to compensation. 

Claimant represented by Roger J. l>ever, Wilkes-Barre. 
Defendant represented by i>. It. Reese, Scranton. 

Ol'lXLLOS BY COMMISSIOA'EK UOUCK— July 22, 1821. 

WJien this case was called for hearing the parties agreed to dis- 
pense with the calling of witnesses and agiced that if witnesses were 
called tbey would testify substantially, as follows: That the claim- 
aut was employed as a door tender by the defendant on December 1, 
ll>iy j that he reported for work on that date and worked during the 
forenoon until! about 11 o'clock. A trip of cars had gone through the 
door, which it was his duty to open and close and which he opened 
for the trip. It was then hig duty to remain at the door until the 
motor, which was attached to the cars, returned through the same 
door. While waiting for the motor to return, he lay down near the 
tracks and, while there, fell asleep. About thirty minutes after the 
trip had gone through the door the motorman returned with the 
motor and a trip of cars and an oil box on one of the cars struck the 
claimant as he lay sleeping along the track and injured' him. On 
this state of facts; the Referee awarded compensation from which a- 
ward the defendant has appealed. The basis of the appeal ,is that 
the claimant was not in the course of his employment at the time f 
the accident. The Board is of the opinion that the Referee did not err 
in awarding compensation. 

Section 301 of the Workmen's Compensation Act defines the term 
"injury by an accident in the course of his employment" to include 
any injury sustained while the employe is actually engaged in the 
furtherance of the business or affairs of the employer, or, even though 
the employe is not so engaged, any injury caused by the operation of 
the employer's business on the premises, when the injury happens upon 
the premises occupied by the employer, the employe's presence there- 
on being required by the nature of his employment. 

Under this definition the claimant is entitled to compensation 
because it is not disputed that he was injured on the premises of the 
employer, and the injury was caused by the operation of the employ- 
er's business thereon and the employe's presence on the premises was 
required by the nature of his employment. It was the duty of the em 
ploye to remain at the place where he was injured to open and shut 
the door and the act of falling asleep was nothing more than an act 



of negligence on the part of the employe, which, by the very terms of 
the Act, does not defeat his right to compensation. See Amezdros 
v . Jones & Laughlin Steel Co., 2 Pa. Workmen's Compensation Board. 
212 ; Richards v. Indianapolis Abattoir Co., 15 N. C. C. A. 269 n. 

The findings of fact and conclusions of law of the Referee are af- 
firmed, and the appeal is dismissed. 



Shannon v. Carnegie Steel Co. 

Course of employment^Dumed tchile sleeping on premises. 

Where the claimant, whose duties weru to oil un engine, fell Hairep in a chair, 
in violation of the defendant's rules, whs awakened by his clothes being on fire, ami 
was burned as a result of the fire, he is entitled to compensation as tbe injury 
resulted from the operation of tlie defendant's business, and the employe's presence 
on the premises was required by the nature of bis employment. 

Claimant represented by Joseph W. NelBon, Mercer. 
Defendant represented by W. B. Edmundson. Pittsburgh. 

OPINION BY COMMISSIONER JARRETT— July 22, 1921. 

Albert J. Shannon, tbe claimant, was in the employ of the Carnegie 
Steel Co., whose business is the manufacturing of steel, at its plant 
at Farrell, Pa., as an engine oiler on the 1st of September, 1920. His 
duties were to "go around the engine and keep it oiled." At about 1 
o'clock in the morning on said date he placed some waste on a chair 
which was in the engine room, sat down and fell asleep, which was a 
violation of the rules of the defendant. He was awakened by his 
clothes being afire. As a result of the fire his hack was burned; he 
was treated at the emergency hospital of the defendant, and was told 
to return for further treatment but he never returned but engaged 
Dr. Paul T. Hope of Mercer, whose services amounted to ffi and ex- 
pended for medicine the sum of $11 both without notice to. the de- 
fendant as to his whereabouts, or a request of the defendant for medi- 
cal attention as provided by the Act. 

The Referee disallowed compensation and the claimant appealed. 
The Board granted a hearing de novo which was held at Pittsburgh, on 
April 6, 1920. The testimony taken before the Referee was adopted 
to be considered as if taken before the Board. 

The claimant contends that he is entitled to compensation not- 
withstanding the fact that he was asleep while the accident happened ; 
contending that he being asleep was no more than neglence and neg- 
ligence is no bar to compensation, while the defendant, in substance, 
contends that when he was asleep he was not in the course of his em- 
ployment 

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The part of the Act applicable is Section 301, which,, a-* concern* 
this matter, is as follows: 

"When employer and employe shall by agreement 
accept the provisions of Article III of this Act, 
compensation for personal injury to ... . such 
employe, by an accident, in the course of his employment, 
::uaM be made in all cases by the employer, without re- 
gard to negligence The term 'injury by an 
accident' in the course of his employment as used in 
this article , . . . shall include all other injuries 
sustained while the employe is actually engaged in the 
furtherance of the business or affairs of the employer 
and Bhall include all injuries caused by the 
condition of the premises or by the operation of the em- 
ployer's business or affairs thereon, sustained by the em- 
ploye, who, though not so engaged, is injured upon the 
premises occupied by or under the control of the em- 
ployer,or upon which the employer's business or affairs 
are, being carried on, the employe's presence thereon be- 
ing required by the nature of his employment." 

The evidence shows that the claimant was sound asleep when the 
accident happened. This being so, he was not "actually engaged" 
in the furtherance of the business or affairs of the defendant. Then, 
if he is entitled to compensation he must meet the other requirements; 
that is, that the injuries were by the condition of the premises or by 
the operation of the employer's business or affairs thereon upon pre- 
mises occupied by or under the control of the employer or upon 
which the employer's business or affairs were being carried on, his 
presence thereon being required l>y the nature of his employment. 

We are satisfied that the evidence shows the necessai^ require- 
ments; his injuries were caused by the condition of the premises, to- 
wit, the fire.- It is true the origin of the fire is not known, but ina*-. 
much as the defendant has not proved that it was intentionally caun 
e<l by the claimant so as to result in injuries self-inflicted or that it 
was caused by the act of a third person intended to injure the claim 
ant because of reasons personal to hjim and not directed against him 
as an employe or because of his employment, its origin is immaterial. 
We are therefore to assume that it resulted from the operation of the 
defendant's business. The evidence is plain that it was upon the 
premises occupied by and under the control of the defendant and 
upon which its business or affairs were being carried on, as it wa« 
in its engine room., and the evidence is likewi'se plain that his pre 
sence thereon was required by the nature of his employment, as he 
was sitting in a chair provided, no doubt, by the defendant, in the 
engine room where he was required to tie to do his work. Tt is trne 
that he was negligent by falling asleep but negligence is no bar. 



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Siglin V. Armour Co., 261 Pa. 30. 

Counsel for i he defendant lias filed a very able brief but we cannot 
agree with him. We think the position we take is correct. 
In addition to the facts found above, we find as follows: 
FINDINGS OF FACT. 

1, The parties were at the time of the accident bound by the pro- 
visions of the Workmen's Compensation Act of 1915 as amend 

2. The claimant sustained injuries by an accident on September 
1, 1920, while on premises occupied by and under the control of the 
defendant upon which its business or affairs were being carried on,, 
his presence being required by the nature of his employment, which 
injuries were caused by the condition of the premises and by the 
operation of the defendant's bitfsness or affairs thereon, to-wit, the 
fire as above stated. 

y. The injuries sustained by the claimant was "violence to the 
physical structure" of his body. 

■I. As a result of the injuries the claimant was totally disabled 
from September 1, 1920 to October 9, 1920. 

5. The medical expenses during the first thirty days was $17, to- 
wit, Dr. Paul T. Hope, attending physician, $6, medicine $11, all of 
which was paid by the claimant. 

6. The wages of the claimant at the time of the accident were in 
excess of $20 per week. 

CONCLUSIONS OP LAW. 

1. The parties at the time of the accident were bound by the pro- 
visions of the Workmen's Compensation Act of 1915 and its amend- 
ments. 

2. The claimant having sustained injuries by an accident while 
upon premises occupied by and under the control of the defendant, and 
upon which its business or affairs were being carried on, his presence 
thereon being required by the nature of his employment; the injuries 
being caused by the condition of the premises and the operation of the 
defendant's business or affairs thereon, to-wit, the fire, and negligence 
being no bar to compensation, the claimant in therefore entitled to 
compensation as provided by the Act. 

The claimant having been treated at the emergency hospital of the 
defendant and told to return for further treatment but did not return 
and not having advised the defendant of his whereabouts or made a 
request for further medical treatment, he is not entitled to reimburse- 
ment for the doctor services contracted by him or for the amount 
■expended by him for medicine. 

Compensation is accordingly awarded as follows; 

DigiiizeacyGoOQle 

17 



258 

AWARD. 

There is hereby awarded against the Carnegie Steel Co. defendant, 
in favor of Elmer J. Shannon, the claimant, <H)% $20 per week or $12 
per week from Septcniber 11, 1920 up to and including October 9, 
1920, as provided by Section 306 of the Workmen's Compensation Act 
of 1915 as amended in 1919. 



Snyder v. Rochester & Pittsburgh Coal & Iron Co. 

Course of employment — Injury rcceir-cd while tearing premises. 

Compensation will be awarded for an injury caused to the rye as a result of the 
claimant stepping into an offset on a path leading across the premises of the em- 
ployer, wbiln the elaimant was on his way home, us the premises were occupied by 
and under the control ot the defendant, and the claimant's presence thereon wan 
required by the nature of his employment. 
Claimant not represented. 
Defendant represented by Henry I. Wilson, Punxsutawuey, 

OPINION BY rOMMl8SlOXF.lt JAKBETT— July 22, 1921. 
HEARING DE yOVO AT DUH01S. 

FINDINGS OF PACT. 

1. James Snyder, the claimant, on September 19, 1920, was in 
the employ of the Rochester & Pittsburgh Coal & Iron Co., defendant. 
whose business is coal operator, at its mine in Helvetia, Clearfield 
county, He was employed as a fireman at a weekly wage in excess of 
$20 per week and on said date, after he had finished his day's work 
at about 10 o'clock P. M., he was on his way home and was traveling 
over a path on the premises of the defendant, which was his usual 
and customary route in going to nnd from work, and while on said 
path, he accidentally stepped into an otfset and his body was so jarred 
as to cause a floating lens of his right eye, of which accident the 
defendant had due notice. 

2. The claimant worked until the 24th of September and on the 
25th of September, 1920, he could not see out of the injured eye and 
went to Dubois to consult Dr. C, L. Mainie. Upon examination it 
was found that the lens was dislocated and that there was a trau- 
matic cataract which had turned white. The iris was tremulous 
showing it had no support. -The eye was infiamed and irritated ; 
the doctor treated it and on October 1.1, 1920, operated and removed 
the lens. 

3 As a result of an accident the elaimant has been totally dis- 
abled up until about May 10, at which time he obtained his glasses. 
The date that he obtained the glasses is not of record and we will 

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259 

therefore fix the arbitrary date as May 15, assuming that by this 
date he would have obtained his glasses. 

4. Tlie testimony is not conclusive that the claimant has lost the 
use of his eye, as the testimony shows that the eye may improve 
with the use ot glasses. The question as to whether or not the use 
of the eye has been lost is therefore a question for future consider 
at ion. 

5. The testimony shows that the claimant, about Hay 10, was 
able to do some kind of light work and we are satisfied that his con- 
dition was such at that time that lie could perform light work. 
There being no testimony of record upon which we could base partial 
disability, we can only allow compensation up to the date as fixed; 
partial disability, if any exists, to be a matter for future consider- 
ation. 

6. The claimant, on said date, to-wit, September 10, 1920, sus- 
tained injuries by accident, which was caused by the condition of 
the premises of the defendant, to-wit, the offset in the path, the 
premises were occupied by and under control of the defendant and 
the claimant's presence thereon was required by the nature of his 
employment. 

7. The defendant hud notice of the claimant's 1 injury but did not 
provide him with medical attention. The medical and hospital ex 
penses were more than ?100. 

8. The parties were, at the time of the accident, bound by the pro- 
visions of the Workmen's Compensation Act of 1915 as amended in 
1919. 

CONCLUSION OP LAW. 

1. The parties were, at the time of the accident, bound by the pro- 
visions of the Workmen's Compensation Act of 1915 as amended in 
1919. 

2. The claimant having sustained injuries by accident while in 
the course of his employment with the defendant company, the in- 
juries being caused by the condition of the premises, which premises 
were occupied by and under control of the defendant, and the 
claimant's presence thereon being required by the nature of his em- 
ployment, and he being totally disabled as a result thereof from 
September 30, 1920 to May 15, 1921, he is therefore entitled to com- 
pensation as provided by Section 306 of -the Workmen's Compen- 
sation Act as amended. He is also entitled to the sum of $100 for 
the medical expenses during the first thirty days of disability. 

AWARD. 

There is accordingly awarded against the defendant, the Rochester 
& Pittsburgh Coal & Iron Co., and in favor of the claimant, James 



Snyder, 60% of $20 per week or $12 per week from Octol>er 4, 1920 
to May 15, 1921, and an additional snm of $100 for the medical and 
hospital expenses during the first 30 days of disability. 



Parisi v. Snare & Triest Co. 

Alien* — Dependent parent bccviiiiag it</n-rcsident. 

An nlien dependent father, who removal from the United Stales to Italy nfter 
the deatli of his sou, which whs due to an accident received in the course of Mm 
employment, is only entitled to compensation for the titme lie resided in the United 
States under Section 310 of the Workmen's Compensation Act of 1016. 

Appellee represented by Ignatius A. Quinn, Philadelphia. 
Appellant represented by E, B. Brandrifl, Philadelphia. 

OPINION BY COMMISSIONER HOUCK— July 22, 1921. 

The claimant in this- ease is the father of James Parisi. James 
Parisi met with an accident in the course of his employment which 
resulted in his death on August 7, 1918. The claim petition was filed 
on August 7, 1919. After hearing, the Referee found that the 
claimant was totally dependent upon the deceased for support ami 
there is an agreement on the record, by counsel for the claimant, 
that the claimant was a resident alien on the date of the death of 
the decedent and continued to be a resident alien from August 7, 
1918, the date of the death, to October 1. 1918, when he left the 
United States to take up his residence in Italy. The claimant has 
continued to reside in Italy since October 1. 1918. The Referee 
awarded the claimant compensation from August 21, 1918, for a 
period of 300 weeks. From this award the defendant has appealed 
alleging, first, that the Referee's finding that the claimant was 
wholly dependent upon the deceased for support, if not supported by 
the evidence. And second, that even if the claimant was dependent 
on the deceased, he is entitled to compensation only fur the period 
during which he remained in the United States. 

There is evidence to support the Referee's finding that the 
claimant was dependent upon his son for support. However, Section 
310 of the Workmen's Compensation Act of 1915 provides in part 
as follows: "Alien widowers, parents, brothers and sisters not resi- 
dents of the United Slates shall not Ite entitled to nny compensa- 
tion." The question arises, therefore, whether the rlnimnnt is en- 
titled tu rnmnensation after he removed from the United States. 
This question has not heretofore beeD passed upon by the Board. 



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261 

Section 310 also contains this provision: "Compensation under 
this Article to alien dependent widows and children not residents of 
the United States shall be two-thirds of the amount provided in each 
case for residents." In construing this portion of the Compensation 
Act the Board has held that the widow and children are entitled to 
only two-thirds of the amount of compensation if they remove from 
the United States to their native country, although at the time of the 
death and of the award they were residents of the United States, and 
under such circumstances the Board has modified compensation 
agreements and has reduced the amount of compensation. Ciambella 
v. American Ice Co., 3 Pa. Workmen's Compensation Board, 42; 
Scoudiero v. Traylor Shipbuilding Corp., 5 Dept. Reports, 1983. 

Applying the same reasoning to the case under consideration the 
Board is of the opinion that the claimant is entitled to compensation 
only for the period during which he resided in the United States. 
Upon his removal to Italy the claimant, an alien, became not resident 
in the United States and falls within the exclusion of Section 310. 

The Referee's award is accordingly modified to provide for compen- 
sation to the claimant, Guiseppe Parisi, at the rate of 20% of $1980, 
or $3.96 per week from August 21, 1918, to October 1, 1918, a period 
of 6 weeks, making the total amount of compensation $23.76. 

With this modification the findings of fact and conclusions of law 
of the Referee are affirmed. 



Deimizio v. Berwind- White Coal Mining Co. 

Arm — Lost of use — Second injury to tame arm. 

A claimant is entitled to compensation for an injury to bis arm even after lie 
hag been allowed compensation for the loss of the use of same. 

Claimant not represented. 

Defendant represented by Edward B. Creighton. Philadelphia. 

OPINION BY COMMISSIONER JARRETT— July 27, 1921. 

The parties have agreed upon certain facts and have asked us to 
fix the amount of compensation due. It seems that the only question 
in dispute is as to whether or not the claimant, after having been 
allowed compensation for the loss of the use of bis arm, is now en- 
titled to compensation for disability due to an injury to the same 
arm. 

In Patrick Quinn v. American International Shipbuilding Corp., 
decided by the Superior Court of Pennsylvania by opinion filed July 
14, 1921, Trexler, J., delivering the opinion, in part, said: 



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262 

"To illustrate, a man may have Inst the permanent use of bis arm 
ami nevertheless, if still able to work, lie entitled to receive compen- 
sation for the time lost due to an injury subsequently occurring to 
the useless member." 

We think this settles the question. The parties will therefore enter 
into the agreement under the agreed facts in accordance herewith. 



Hiwiller v. Pittsburgh Plate Glass Co. 

Hack — Strain to. 

An employe who injured his bock by having a pot which he was unloading tip 
back on him, is entitled to com pen sat ion as the injury was violence to the physical 
structure of his body as con 1cm pi a led by the Act. 

Medical CJ-penxcx- — Who must bear. 

Where the claimant failed to notify the defendant of his injury until two days 
after the accident, he is responsible for the medical expenses incurred during that 
time, but the defendant is liable by its failure to furnish medical attendance after 
having received notice. 

Claimant represented by H. P. Boarts, Kittanning. 
Defendant represented by II. M. Rose, Huntingdon. 

OPINION BY COMMISSIONER JARRKTT— July 20. 1921. 

HEARING DE NOVO 

FINDINGS OF FACT, 

1. The claimant, G. B. Hiwiller, was on May 22, 1920, in the em- 
ploy of the Pittsbuigh Plate Glass Co., (whose business is the manu- 
facturing of plate glass) at its plant in Ford City. He was emplojed 
as a laborer, at a weekly wage in excess of $20 and on' said date, 
while actually engaged in the furtherance of the business or affairs 
of the defendant, to-wit, he was unloading a pot when it tipped back 
on him, straining his right shoulder. 

2. The event thus related was an accident as contemplated by the 
Workmen's Compensation Act and the injury sustained was vio- 
lence to the physical structure of his body as contemplated by the 
Act. 

3. The claimant only worked half a day as be was compelled to go 
home on account of the injury. He was treated by Dr. J, K. Kiser, 
of Kittanning, the day after Ms injury and on the next day, for which 

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2<« 

the doctor charged Lim $2 for each treatment. The claimant did not 
notify the defendant of his injury until the third day after the acci- 
dent. 

4. The medical treatment required by the claimant on account of 
his injury during the thirty days of disability, which the com- 
pany should have furnished, was as follows: Dr. Kiser $4 and Dr. 
Jessup J10.50. 

5. The parties were, at the time of the accident, bound by the 
provisions of the Workmen's Compensation Act of 1915, as amended 
by the Act of 1919. 

CONCLUSIONS OF LAW. 

1. Both parties were, at the time of the accident, bound by the 
provisions of the Workmen's Compensation Act of 1915 as amended 
by the Act of 1919. 

2. The said fl. B. Hiwiller having suffered injuries by accident 
while in the course of his employment, he at the time being actually 
engaged in the furtherance of the business or affairs of the defen- 
dant, which resulted in the total disability of the claimant for a 
period in excess of ten days, to-wit, from May 22, 1920 to June 16, 
1920, he is entitled to compensation as provided by the Act. 

3. The claimant having neglected to give the defendant notice of 
his injury and neglected to make application for medical attention 
as provided by the Act, he must therefore bear the expense of the 
medical treatment procured by him for the first two days, to-wit, $4, 
but he having notified the defendant of his injury the third day after 
the accident and the defendant having neglected to furnish medical 

* treatment as provided by the Act, it must therefore bear the expense 
of the medical treatment during the first thirty days after the third 
day of disability, to-wit, |4, services of Dr. Kiser, and |10.50, serv- 
ices of Dr. Jessup. 

AWARD. 

There is accordingly awarded to G. B. HiwillT, the claimant, and 
against the Pittsburgh Plate Glass Co., defendant and its insurance 
carrier, the American Mutual Liability Tns. Co., as provided by the 
Act, compensation at the rate of 60% of $20 or $12 per week from 
June 2, 1920 to June lfi, 1920, and there is also awarded to the 
claimant against the defendant. $14.50 for the medical services re- 
quired and procured by the claimant during the first thirty days of 
disability; the defendant company to pay the costs as follows: 



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Harry Flack, 


1 day, 


2 miles, 


tl.5G, 


Ray Bonnette. 


1 day, 


!> miles. 


1.77. 


tir. Chaa. Mills, 


1 <lay, 


2 miles, 


Lfifi. 


pr. Ivan Boyer, 


1 day, 


2 miles, 


1.56, 


Mack Connor, 


Storing sul 


poenas, 


1.75 



Grohuskie r. Shipman Coal Co. 

Cancer — When retnll o) aeeuleiit U compensable. 

Where an employe had a mine prop foil and hit him in the face, and as a result 
a cancer developed, lie is entitled to eompen Rntion for the time he was totally dis- 
abled. 

Claimant represented by Roger J. Dever, Wilkee-Barre, 
Defendant represented by H. M. Rose, Huntington. 

OPINION BY COMMISSIONER JARRETT— July 29, 1921. 
BEARING DE NOVO 
FINDINGS OF FACT. 

1. The claimant, John Grobuskie, was on April 10, 1920, employ- 
ed by the defendant company, whose business is the mining of coal, 
at its Colbert colliery. Coal Run. Ho was employed at timbering 
and on said date, while he was actually engaged in the furtherance 
of the business or affairs of the defendant, to-wit, he waB setting up 

a prop when a second prop slid down the pitch and struck him in " 
the face. It loosened his teeth and cut his lower lip on the left sirto. 
Defendant had due notice of the accident. 

2. A cancer quickly developed at the point where his lip was cut, 
as stated, and on April 19, 1920, he was admitted to the Gisinger 
Memorial Hospital at Danville, and on April 21, 1920 he was op- 
erated upon, the cancer being removed, 

3. As a resultant effect of the accident the cancer quickly de- 
veloped and as a result he was totally disabled until June 8, 1920. 

4. That the injuries sustained by the claimant was violence to 
tbe physical structure of his body and the condition which followed, 
as stated, was a natural result under the circumstances. 

5. The weekly wages of the claimant at the time of tbe accident 
were in excess of $20. 

6. Tbe medical expenses required and procured by the claimant 
(after notice to the company of the accident) account of bis con- 



dition, during the first thirty days after disability began, amounted 
to $20, and the hospital treatment, services and supplies amounted 
to $106, none of which have been paid by the defendant company. 

7. The parties were, at the time of the accident, bound by the 
provisions of the Workmen's Compensation Act of 1915 aa amended 
by the Act of 1919. 

CONCLUSIONS OF LAW. 

1. The parties were, at the time of the accident bound by the 
provisions of the Workmen's Compensation Act of 1915 as amended 
by the Act of 1919. 

2. The said John Orobuskie, claimant, having met with injuries 
by accident, while actually engaged in the furtherance of the busi- 
ness or affairs of the defendant, which injuries were "violence to the 
physical structure" of his body, and as a result a cancer quickly 
developed, resulting in total disability from April 19, 1920 to June 
7, 1920, he is entitled to compensation as provided by the Act. 

3. The defendant company, having had du^ notice of the acci- 
dent and not having furnished medical services and the necessary 
hospital treatment, services and supplies as required by the Act, is 
is legally bound to bear the expenses of said services. The claimant 
is therefore entitled, if the expenses have already been paid by him, 
to be reimbursed by the defendant for the amount paid, and if not 
paid by him, shall pay the parties to whom the amounts are due. 

(The award follows.) 



Yeckley v. Penn Contracting Co. 

Covrte of employment — Playing on pretnite*. 

An employe, fourteen years of age, who was injured by playing while waiting for 
some work to perform, is entitled to eompenmitinn ns the mere. m»t of indulging in 
play dminj: siieli n pi-riml is not snhVienl tu tnlte lhe employ* 1 out uf tlic i-oiirsr 
of liis employment, 

Claimant not represented. 

Defendant represented by J. 1>. Darragh, Pittsburgh. 

OPINION BY COMMISSIONER HOUCK— August !t, 1921, 

Clinton Yeckley, a boy fourteen years of age, was employed by the 
defendant company as a laborer and a water boy. On October 9, 1920, 
while waiting for some work to do, he was playing with another boy 
in the same employ and Yeckley climbed a tree right uext to where 
he was working. Yeckley Inst his balance, fell from the tree and 
broke his collar bone. On (his state of facts the Referee decided that 



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2«(i 

the employe met with ait accident while in the course of his employ- 
ment and awarded compensation. The defendant has appealed from 
the award on the ground that the Referee erred in concluding as a 
matter of law that the employe was in the course of his employment. 
The Board is of the opinion that the award of compensation is without 
error. 

From the nature of the employe's work there were periods throngh- 
out the day during which he would have nothing to do. Such periods, 
hchvever, did not hreak the course of his employment and it is ou'y 
natural that boys of the age of this employe should indulge in play 
during such waiting periods, and the mere act of indulging in i I iv 
• during such a period is not sufficient to take the employe out of Hi*' 
course of his employment. 

The facts in this case are very similar to the facts in several casep 
decided by the Board in which compensation was awarded. Holman 
v. D. L. & W. R. R. Co. 5 Dept. Reports, 628; Woford v. Reading 
Dye Works, Dept. Reports, 7G9; "Williams v. Susquehanna Silk Mills, 
5 Pa. Workmen's Compensation Board, 248, and cases cited therein. 
The act of engaging id play by a hoy of fourteen years of age is as 
natural to expect and is as well recognized as in the custom for adult 
employes to smoke during temporary cessation of work.- Such acts 
do not take the employe out of the course of his employment, 
Pzikowski r. Superior Steel Co., 259 Pa., 578. 

The findings of fart and conclusions of law of the Referee are af- 
firmed, and the appeal is dismissed. 



Artinik v. Cambria Steel Co. 

Citizenship — Child bnrn in the United St'itcs of foreign pnrmls. 

A posthumous ehild born in thin eotmtr.v from alien parents i* an American 
citizen under the provisions of the Fourteenth Amendment of the Constitution of 
the United States, and is entitled to full compensation even though the mother 
returns to her native land and takes the eliild with her. 

Claimant represented by Albert Mamatey and John Kulamer, Pitts- 
burgh. 
Defendant represented by Francis A. Dunn, Johnstown 

OPINION BY MACKEY— Chairman— August 10, 1921. 

Andy Artinik, the husband of the claimant, died as the result of 
injuries which he received in the course of his employment with the 
Cambria Steel Co. on March 7. 101S. Besides the widow he left to 
survive him Mary Artinik, a daughter, born on August 15, 1916, and 
there was also born on July 25. 1918, a poFtlninums child, now 
known as Andrew Artinik, the daughter, Mary, having died on No- 
vember 2, 1919. 



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2fi7 

The deceased husband, Andy Artinik. was not naturalized, neither 
was he a part of the consular service of any country, and the country 
of his birth, namely Austria-Hungary, was not in hostile occupation 
of the place where this posthumous child was born These two latter 
findings of fact are made by us in order to meet the requirements and 
satisfy the common law of England which has become the means of 
interpreting what is meant by certain phases of the Fourteenth 
Amendment to the Constitution of the United States. We believe 
that the status of this posthumous child as to citizenship is not only 
fixed by the Fourteenth Amendment, but has been clearly establish- 
ed by the interpretation of that Amendment and the fixing of the 
citizenship of children similarly bo'u {see United. States p. Wong 
Kim Ark, 16!) T\ S. (S49 , where it was held that "a child born in the 
United States of parents of Chinese descent, who at the time of 
birth are subjects of the Emperor of China, but have a permanent, 
domicile and residence in the United States and are there carrying 
on a business and are not employed in any diplomatic or official 
capacity under the Emperor of China, becomes at the time of birth 
a citizen of the United States by virtue of the first clause of the 
Fourteenth Amendment of the Constitution." 

At the time of the birth of the said posthumous child. Andrew 
Artinik. the mother had a permanent residence in the United States 
and the father, up to the time of his death from 1014. had perman- 
ently resided in the United States, and was engaged in the business 
of a miner. 

The widow, with the child, Andrew, on September 1, 1020, return- 
ed to the Czechoslovak Republic, where they are now residing. 
Compensation was modified on December 5. 1920, to provide for this 
changed status as far as ]>osthumous child is concerned, the said 
agreement being numbered 556765-B. 

The defendant has petitioned the Board to modify this agreement 
under Section 310 of the Act because of the fact that the widow has 
now become a non-resident alien. The Consul of the Czecho Slovak 
Republic, located at Pittsburgh, has intervened in these proceedings 
and has demanded compensation for the claimant, as is his right 
under the law. 

We decide that the status is fixed by the Workmen's Compensa- 
tion Act and that the defendant is bound to recognize the. official 
standing of the Consul, and that his receipt will be a complete 
acquittance of the defendant's liability pro tanto. The Consul, on 
behalf of the widow, now contends that this surviving child is a 
native born American citizen and that his share, therefore, should 
not l>e reduced to the hasis of a non-resident alien. We hold that 
this is correct, under the authority of the decision of the United 

Gooole 



States Supreme Court, first-above stated. Andrew Artinik is a citi- 
zen of tbe United States . By Constitutional provision he has secur- 
ed a birthright to that citizenship, which nothing but his own act 
when he arrives at majority can take from him. Flis status, there- 
fore, being that of a citizen of the United States, he is entitled to all 
the privileges that go with that citizenship. 

We have previoauly decided and been upheld by various courts 
that under the Workmen's Compensation Act, the widow's share is 
40% of the award whenever it becomes necessary to earmark her 
direct interest in an award of compensation or to separate it from 
the other beneficiaries. 

* Therefore, the widow's portion of the award being 40% of the 
average wage or (40% of $18.17) $7,268, and there having been a 
commutation of $3.54 per week while she was in this country and 
before her status changed, she is now entitled to 2/3 of ($7,268 less 
$3.54) S3.728 or $2,486, and in addition. 5% of $18.17 or $0,908 on 
account of th child, a total of $3.39 for the period of 170-1/7 weeks 
ending Dec. 6, 1923 (end of the first 300 weeks) or the total sum of 
$576.78. 

Thereafter, compensation to be paid for the use of Andrew Ar- 
tinik at the rate of (15% of $18.17) $2.72 per week until July 25. 
1924, a period of 555 weeks, in the total sum of $1,509.60. 

And the said compensation agreement is,herehy. modified accord- 
ingly- 

The defendant, of course, desires a receipt that will be a complete 
acquittance of his liability to pay this child, and therefore in order 
to furnish a complete and legal means of receiving such a receipt, 
we hereby appoint the mother. Anne Artinik. the guardian of said 
minor child, Andrew, for the purpose of receiving the Baid child's 
share in connection with her own and expending the same for his 
benefit and support, and her signature will be a complete acquittance 
of the defendant's liability toward both as the compensation pay- 
ments fall due. All this, however, is not to conflict with the legality 
of the acquittances executed by the Counsul of the Czecho-Slovak Re- 
public, located at Pittsburgh, hut provides an easy method not only 
for the Consul, hut for the defendant to secure full power of attor- 
ney from the claimant in her individual and representative capacity, 
to act in her behalf. 



Best v. Hempfleld Foundry. 



Hernia — Duty of employe to submit to operation. 
Wlicre nil employe suffered an injury, by nti nccidVut, in the nature of a hernia, 
it Is his duty t« cooperate with his employer to rectify such disability. 



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Claimant represented by A. H. Bell, Greensbtirg. 
Defendant represented by Cha«. M. Smith, Pittsburgh. 

OPINION BY J1ACKEY— Chairman— August 10, 1921. 

The claimant was employed by the defendant as a laborer, and 
while so employed, carrying a piece of pig iron weighing from 135 
to 140 pounds, he suffered an injury by accident in the nature of a 
hernia on the right side, known as an inguinal hernia. 

The evidence produced conformed to all our standards of proof 
in respect to hernia by accident. A hernia must not in the ordinary 
case impose total disability upon the employer for it is every claim- 
ant's duty to cooperate with the employer to rectify such disability. 

The evidence in this case indicates that the correction of this con- 
dition in the claimant would involve a very simple operation. The 
claimant has declined to submit himself to this operative procedure 
up to the present time because of the fact that some time previous 
to this he had been operated upon for appendicitis. The time has 
now passed when this can be a valid or persuasive excuse. Upon 
reading the testimony, we find that it is the claimant's duty to at 
once otfer himself to the defendant or the insurance carrier of the 
defendant for a corrective surgical procedure, the compensation as 
indicated in the Referee's award to continue until the claimant is 
discharged by the surgeon after such operation. If the claimant has 
not complied with this suggestion by September 1 the defendant is 
directed to file a petition to terminate compensation. 



Logan v,. Pot Ridge Coal Co. 

Course of employment — Death of employe on way to work~Tran*portation furnished 
by employer. 

Where it was a part of the contract of hiring to transport the decased to and 
from work, bis death, which resulted from an accident while being so transported, 
is compensable. 

Dependency — -Self-supporting wife living apart from husband. 

The widow of a deceased employe, who was killed while in the course of his em- 
ployment, is not entitled to compensation on account of bis death when she whs 
living apart from him at that time and was self-supporting. 

Claimant represented by F. A. Millott, Windber. 
Defendant represented by H. M. Rose, Huntingdon and H. J. Nesw*, 
Pittsburgh. 



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270 

OPINION* ItY COMMISSIONER JARRETT— August 10, 1021. 

HEARING DK NOVO 

FINDINGS Ob' FACT. 

1. 1 1 any Logan, the deceased employe, account of whose death 
compensation is claimed, was on December 2, liRJO, in the employ of 
tlie defendant, llie l'ot Ridge Ooal Co., whose business is the mining 
of coal at its coal mine at Ash tola. He was employed us an engineer. 
It waw part of the contract of employment existing between the 
defendant aud the deceased that the defendant would convey Ihe de- 
ceased from Windber, the town in which he lived, to the mine, and 
from ilie mine hack to Windber and on said date, to-wit, December 
2, 1020, while the deceased was beiug transported from the miue to 
H'iiidber in a Ford truck, provided by the defendant for the purpose, 
the truck went over a rough place in the road and the chain which ' 
held the endgate broke,causing the deceased to fall out of the truck. 
In falling he struck his head on the hard road causing a fracture of 
the skull, death following the same day. 

2. The decea-*ed,Harry Logan, met death as a result of an accident 
while in the course of his employment with the defendant. 

3. The average weekly wage of the deceased while employed by 
the defendant company was in excess of $20. 

4. The deceased left to survive him a widow, Mary D. Logan, and 
one child, Ruth Logan, born February 2, 1900. 

5. The claimant and the deceased were married May Hi, 1004. and 
they lived together as husband and wife until about September i, 1910, 
when they separated and had not lived together since that time. On 
duly 30, 1012, the claimant made information against him charging 
him with desertion and non-support ; a hearing was held in the matter 
in tiie Court of Quarter Sessions of Somerset county and an order 
made on Septemlber 16, 1916", directing him to pay his wife, the 
claimant, the sum of $12. per month. He failed to make payments 
and on August 21. 1010. process was issued; he was arrested on August 
2:!, 1010., and placed in jail. He remained in jail until December 8. 
1010. when a hearing was held and he was released on parole with the 
understanding that he would make payments. The record of the 
court shows the following payments were made since that time: 

February 0. 1017 ? 12 00 

Mav 18." 1017 5 00 

August 8. 1017 5 00 

October 5, 1017 n 00 

December 22. 1017 10 00 

March S1.'1018 i 5 00 

Mav 14. 1018 5 00 

July 1. 1918 6 00 

These payments were made to the Clerk of Courts; no payments 

were made to the claimant directly since bis arrest in 1910. 



271 

0'. The claimant now resides in Cleveland, Ohio ami li;is worked for 
some time supporting herself and child and at the time of his death 
they were living separate and apart and was not actually dependent 
upon liiiu for support but was, as stated, supportiug herself and not 
only supporting herself out had abandoned the hope of being sup- 
ported by the deceased. 

7. The expenses of the burial of the deceased amounted to 1328, no 
part of which has been paid by the defendant. 

f>. The deceased and the defendant were at the time of the ac- 
cident, bound by the provisions of the Workmen's Compensation Act 
of 1915 as amended by the Act of 1919. 

CONCLUSIONS OF LAW. 

1, The deceased and the defendant were, at the time of the ac 
cident, bound by the provisions of the Workmen's Compensation Act 
of 1S13 as amended by the Act of 1919. 

2. The claimant and the deceased being husband and wife, but at 
the time of his death (which was the result of an accident suffered 
while iu the course of his employment with the defendant company) 
living separate and apart and the claimant at the time not being 
actually dependent upon him for support, she is not entitled to com- 
pensation, but Ruth Logan being a child of the deceased, is entitled 
to compensation, and the sum of 9 100 for the payment of the funeral 
expenses as provided by the Act. 

(The award follows.) 



Onofrey v. Susquehanna Collieries Co. 

Eviden ce — Heart av. 

Compensation will l><> iUkhIIiiwi d when the only testimony presented to show that 

the deceased employe met with an accident while in the course at his employment 

is hearsay. 

Claimant represented by Roger J. Dever and Michael Donahue, 
Wilkes-Barre. 

Defendant represented by Knapp, O'Malley, Hill and Harris, Scran- 
ton. 

OPINION BY COMMISSIONER JARRETT— August 10, 1921 

In this ease the Board awarded compensation and the Court of 
Common Pleas of Luzerne county remitted the record to the Board 
for further hearing and determination. The Court held that the 
Board erred in that it awarded compensation upon hearsay testi- 
mony. 

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A hearing was held and testimony taken, and it establishes lint 
one additional fact and that is that the wound on the back of de- 
cedent's head was inflicted before death and not after death as was 
testified to by Dr. A. T. Hcdintock at the original hearing before 
the Board. 

Following the law as laid down by Fuller, P. J., in his opinion 
in this case, we are of the opinion that this fact does not strengthen 
the position of the claimant for the reason that it is not convincing 
that the wound was inflicted while decedent was in the course of his 
employment. If it was the only logical conclusion that could be 
drawn, that the wound was suffered as a result of an accident while 
in the course of his employment, as in McCauley v. Imperial Woolen 
Co., 261 Pa. 312, we would then be in position to allow compensa- 
tion, but here the decedent could have been attacked with the men- 
ingitis of which he died, at his work, and sustained the fall which 
caused the wound while off the premises of the defendant, so it still 
stands that the only testimony we have that the deceased met with 
an accident while in the course of his employment is hearsay testi- 
mony. See McCauley v. Imperial Woolen Co., supra. 

We must disallow compensation. 

FINDINGS OF FACT. 

1. The claimant is Eva Onofrey, widow of Steven Onofrey. the 
deceased employe, who resides at No. 34 Enterprise Street, Glen 
Lyon, for herself and her three children. Olga Onofrey, born April 
9, 1911 ; Elizabeth Onofrey, born March 6, 1913 ; Marie Onofrey, born 
February 3, 1915 ; who reside with the claimant. The defendant is 
the Susquehanna Collieries Co., with offices at No. 10 West Main 
Street, Nanticoke. The insurance carrier of the defendant, inter- 
vening defendant is the Aetna Life Insurance Co., with offices in 
the Union National Bank Building, Scranton, 

2. Stephen Onofrey, the deceased employe, was employed as a 
pump runner by the defendant company, his duties being to look 
after the pump in No. 6 colliery of the defendant company at Nan- 
ticoke. He never lost any work on account of sickness and the year 
immediately prior to his death he had worked steady, had always 
been in good health. On January 23, 1918, he had supper with his 
family about 6 o'clock P. M. and left his home about 9 o'clock for 
work at the said colliery. On his way to work he met and talked 
with Adam Uplinger about a quarter to 10 and some time that even- 
ing talked with T>r. E. M. Davis. On these occasions he showed no 
signs of illness. He arrived at his work about 10 o'clock. He return- 
ed to his home about 11 o'clock and was ill. He told the claimant 
that he fell in the mine. Dr. E. M. Davis was immediately called 



■2T.i 

and he told the doctor that he had a fall. The doctor found him 
suffering excruciating pain in the bead, had a very high pulse and 
his eyea were bulging. The doctor put cold applications on his head, 
gave him hypodermic of morphia and left, to return in the morning. 
The doctor was called in the morning and when he arrived about 6 
A. M. he found him dead, his death being due to meningitis. 

3. There was a cut on the back of the head of the decedent about 
half an inch or bo long. This cut was not noticed by D. E. M. Davis 
who was called to attend the decedent but was noticed by the under- 
taker when he was preparing the body for burial, and was also 
noticed by Mary Onofrey, who assisted the undertaker in preparing 
the body for burial. There was blood clotted about the wound. T>r. 
A. T. McClintock, who testified at the original hearing, gave it as 
his opinion that the wound was inflicted after death but we are of 
the opinion that it was not inflicted after death as we have expert 
testimony to the effect that a wouud inflicted after death does not 
bleed. This wound therefore must have been inflicted before death 
as blood was clotted about it, and we so find as a fact. 

4. The only testimony we have that decedent met with an acci- 
dent while in the course of his employment is hearsay. The testimony 
as to there being blood about the wound at the time they were pre- 
paring the body for burial is evidence that it was inflicted before 
death, but it is not such a convincing circumstance as to make the 
heresay testimony part of the re* gestae, as it is just as fair to pre- 
sume that the wound was not inflicted while he was in the course 
of his employment as it is to presume that it was inflicted while in 
the course of his employment. 

5. The meningitis which caused the death of the decedent was in 
no way brought on or developed as a result of violence to the phy- 
sical structure of the body of decedent suffered while he was in the 
course of his employment with the defendant. 

6. At the time of the accident tbe decedent's weekly wages were 
in excess of ?20. 

7. The decedent left to survive him and wholly dependent upon 
him for support, his widow, the claimant, and the children named 
in finding of fact No. 1. 

8. That the defendant had due notice of the occurrence of the 
accident and the death of the decedent. 

CONCLUSIONS OF LAW. 

t. Both the decedent, Steven Onofrey. and the defendant. The 
Susquehanna Collieries Co.. were bound by the provisions of Article 
III of ihe Workmen's Compensation Act of 1915. 



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3. There being no competent evidence that the decedent met with 
an accident while in the course of his employment, which caused his 
death, compensation must be disallowed. 

DISALLOWANCE. 

Compensation is accordingly disallowed. 



Stringer v. Jones & Latigblin Steel Co. 

Dependency— Parents of minor child, 

The parents of a minor child arc entitled to compensation (or his death under 
the Compensation Act as amended in 1919, which provides that the dependency of 
parents shall be presumed in cases where a minor child lias been contributing to his 

parents. 

Claimant represented by W. H. Stanton, Pittsburgh. 
Defendant represented by Frank M. Painter, Pittsburgh. 

OPINION BY COMMISSIONED HOUCK— August 1G, 1921. 

In this case the Referee awarded compensation to the claimant on 
account of the death of his son, and the defendant has appealed from 
the award. 

The evidence shows that the claimaut and his family lived on a 
small farm in Alabama. The deceased son lived on the farm wit', 
his father until September, 1920. In that month, the boy, with the 
consent of his father, left the farm in Alabama and went to Pittsburgh 
where he secured employment. The boy was brought north by his 
uncle and the uncle advanced him the money for carfare^ supplied 
bim with such clothing and paid his board until such time as the boy 
would receive enough pay to reimburse him. The evidence shows that 
the boy came north to earn more money to send to his family and that 
he intended to return to the farm in December in time for the spring 
plowing. However, he met with an accident on December 1, 1920, 
which resulted in his death on the same day. There is evidence show- 
ing that the deceased paid back all the money his uncle had given him 
with the exception of $13, and that be also sent some money home to 
his family. 

The claimant testified that his son was born January 21, 1901, and 
produced in support of his testimony a family Bible containing a 
record of the family births. The entry concerning the deceased son 
is not very clear and there is evidence of it having been changed and 
the defendant relies upon this fact largely in pressing for a reversal 
of the Referee's award. The Referee was not convinced that the fig- 

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275 

ures iii the Bible had been altered for the purposes of this case and lie 
found as a fact that the deceased was born on the date set out In the 
Bifble. The Board is of the opinion that the record in this case is in 
such condition that it is wholly immaterial when the deceased was 
born. 

The Conineu.su l i<m Act as amended in 191i), provides that de- 
pendency of parents shall be presumed in cases where a minor child 
has been contributing to his parents., In case the child is not a 
minor, dependency must be proven as in other eases. In the case 
under consideration there is direct proof of dependency and it is not 
necessary to rely on any presumption. Accordingly the date of birth 
of the decedent is immaterial. However, the Board does not feel that 
The Referee erred in finding that the deceased was born at the time 
stated in *Iie family Bible. We feel that the Referee's disposition of 
this case is free from error and that it is a proper case for an award 
of compensation. 

The finding of fact and conclusions of law of the Referee are af- 
firmed, and the appeal is dismissed. . 



Streightif v. Pittsburgh Plate Glass Co. 

Pneumonia — Death from compensable wlm related to injury. 

The death of a employe from pneumonia is compensable when it shows that the 
deceased sustained a cut on the wrist which greatly lowered his vitality, and the 
decrease of vitality led to bronchitis which finally led to pneumonia resulting in 

Claimant represented by C. E. Harrington, Kittanning. 
Defendant represented by Cbas. F. Patterson, Pittsburgh. 

OPINION BY COMMISSIONER HOUCK— August 16, 1921. 

This is an appeal by the defendant from the Referee's award of 
compensation. The defendant's main contention is that the findings 
ol the Referee are not supported by the evidence. 

This is an appeal by the defendant from the Referee's award of 
as a lehr tender and on February 14, 1!J2(), while in the course of his 
employment, he was struck on the right hand by a piece of broken 
glass. He suffered a transverse laceration on the dorsal side of the 
right wrist. The cut extended down through the tendons and in- 
volved the wrist joint. There was a tremendous amount of hemor- 
rhage necessitating the application of a turniquet. The decedent 
was sent home and was treated by Dr. .T. E. Ambler, one of the de- 
fendant's physicians. Ahout February 16 he complained of a head- 



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27C 

ache and a cough, and Dr. J. T. Deemer, his family physician, was 
summoned. Dr. Ambler continued to treat the decedent's hand and 
Dr. Deemer treated his bronchitis. On February 22, he was re- 
moved to a hospital where the same two physicians continued to 
treat him. He finally developed bronchial pneumonia and died on 
February 28, 1920. The only question in the case is whether the in- 
jury suffered on February 14 was a factor in causing the death of 
ihe decedent. The Referee found that the decedent's death wa# not 
due to infection from the wound on the decedent's hand becoming 
general and resulting in septicemia, but that the injury greatly de- 
creased the decedent's vitality and that the decedent, being predis- 
posed to bronchial trouble, the decrease of vitality lead up to bron- 
chitis which finally led to the pneumonia which caused his death. 
A careful review of all the evidence in the case convinces the Board 
that the Referee did not err in so finding, and we feel that the find- 
ings of the Referee are supported by competent proof. 

Dr. J. E. Ambler testified on behalf of the defendant. His testi- 
mony shown that the injury to. the decedent's hand was a severe one. 
He saw the decedent for the first time on February 14 and he also 
saw him the next day. That time the decedent complained of severe 
pain, said that his hand hurt him all night, that he had been suffer- 
ing from violent headache and was aching throughout the entire 
body. lie saw him again on the 16th and he then had a slight cough. 
On the 18th the swelling in the hand was a little more aggravated 
and the wound was discharging pus. By the 22nd it was decided 
to take the decedent to a hospital. His general health was going 
down and the wound on his hand was worse. It had taken on a 
bluish appearance and as soon as he was admitted to the hospital 
Dr. Ambler made three incisions on the dorsal service of the hand. 
There was a great deal of dark bloody material ran out and a large 
quantity of pus. On cross-examination Dr. Ambler testified that 
pain tends to lower the physical resistance of a man and puts Mm 
at a disadvantage in fighting off any disease. Pneumonia developed 
after the decedent had been admitted to the hospital. 

Dr. Deemer testified on behalf of the claimant. Dr. Deemer 
said that he advised that the decedent be removed to a hospital on 
account of the condition of his hand and not on account of the bron- 
chitis. He said that the decedent's hand was swollen up to the elbow 
and cellulitis was present; that the wound was infected; that it did 
not show any tendency 4o heal ; that it was throwing off poison into 
the decedent's system which tended to lower his resistance. That, 
in his opinion, both the wound and the pneumonia caused the death, 
the wound by weakening the patient and lowering his resistance. 
Dr. Deemer also said that he thought the decedent was pre-disposed 

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277 

to pneumonia and his opinion was borne out by the autopsy, the 
lungs having an appearance like anthracosis, as though the man had 
been working around a coal mine. 

Eight other physicians testified in the case. Most of them did not 
see the decedent until within a few days of his death. Most of them 
agreed that there was no general septicemia but that pain and loss 
of sleep would tend to lower the patient's resistance and to decrease 
his vitality. 

Besides the medical testimony there is evidence showing that the 
deceased was about sixty-one years of age; that he never had any 
serious ailment of any kind, and that be was subject to bronchitis, 
having had an attack of this disease about six months before the in- 
jury- That the decedent suffered great pain and distress and that 
he was unable to sleep, and that he was even unable to lie down on 
account of the pain he suffered in his hand. 

Taking all his evidence together, we cannot escape the conclusion 
that the injury suffered by the decedent contributed very materially 
In hi« death by lowering his resistance, leading to the development 
of bronchitis and pneumonia, which, due to his decreased vitality, 
be was unable to combat. He was injored on February 14 and ac- 
cording to Dr. Ambler, lost a tremendous quantity of blood. By 
February 20 he had developed bronchitis and by February 2S he was 
dead of bronchial pneumonia. There is here a connected chain of 
events from the injury to the death and when it is remembered that 
he was a well man immediately prior to the accident, we are unable 
to say that the injury played no part in the death of this employe. 
We feel that the findings of the Referee are fully justified by the 
evidence. 

The findings of fact and conclusions of law of the Referee are af- 
firmed, and the appeal is dismissed. 



Anna Oravac v. Pittsburgh High Voltage Co. 

Dependency — Wife living apart from husband — Wife self -supporting. 

The widow of a deceased employs is not entitled to compensation when the evi- 
dence sliows that deceased had not contributed to her support for a period of seven 
months preceding his death, and that although she had a Court order for support, 
she never enforced it. 

Claimant represented by Roger J-- Dever, WiJkes-Barre. 
Defendant represented by C. J. Falhenstein Jr., WHkes-Barre. 



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OPINION BY COMMISSIONER HOUCK— August 16, 1921. 

This is an appeal by the claimant from the Referee's disallowance 
of compensation. The claimant is the widow of George Oravac who 
died on April 14, 1920, as a result of an accident in the course of 
his employment. 

The only question involved in the case is whether the daiuuyit 
was actually dependent upon the deceased for support at the time of 
his death. They were married on May 18, 1918, and they lived to- 
gether until August 16, 1919, at which time the decedent deserted 
his wife. She caused liis arrest on August 25, 1919, and on August 
30, 1919, the husband was brought before the Court of Quarter Ses- 
sions of Luzerne county and ordered to pay his wife the sum of WO 
per month. He was unable to furnish a bond for the faithful per- 
formance of the order and was committed to prison. He was re- 
leased on September 6, 1919, and on the same day he walked with 
his wife from the court house for a distance of about six blocks 
when he entered a store nnder the pretext of making a purchase 
and disappeared. From that time to his death on April 14, 1920, 
his wife never saw or heard from him, nor did he contribute anything 
to her support. His wife lived with her mother, worked in a silk 
mill and was supported by her earnings and by contributions from 
her mother. 

Since the claimant and her husband did not live together, she is 
not entitled to .compensation unless actually dependent upon him for 
support, and the Board has held that actual dependency does not 
mean dependency in law or mere potential or prospective dependency, 
but dependency in fact. The record in this case does not establish 
such dependency. Although the claimant had secured a court order 
against her husband, she never enforced the order, and the reason 
for her failure to enforce it is immaterial. At the time of her bus- 
band's death, by her own testimony, she was not dependent upon 
him and had not received any money from him for a period of seven 
months. She supported herself by working and if this proved in' 
sufficient, her mother contributed the necessary balance. Under 
similar conditions the Board has uniformly disallowed compensa- 
tion. Wilde v. Pennsylvania R. R. Co.. 4 Workmen's Compensation 
Board, 230; Green r. Aetna Chemical Co., 5 Workmen's Compensa- 
tion Board, 112. 

There being no error in the Referee's disposition of this case, the 
findings of fact and conclusions of law are affirmed, and the appeal 
is dismissed. 



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Joseph Oravac et. al. v. Pittsburgh High Voltage Insula- 
tor Co. 

Dependency — Parent* of son orff twenty-one mutt prove. 

Compensation will bo disallowed on account of the dependency of the parents 
of a deceased son over twenty-one years of age, when no attempt was made at the 
bearing to show clearly the expenses "f the household or the manner in which 
the claimants were dependent upon the deceased son for support. 

Claimant represented by Herman J. Goldberg, Wilkes Barre. 
Defendant represented by C. J. Falkenstein Jr., Wilkes-Barre. 

OPIXIOX BY COMMISSIONER HOUCK— August 16, 1921. 
This is an appeal by the claimants from the Referee's disallowance 
of compensation. The claimants are the mother and father of George 
Oravac who niet with an accident while in the course of his employ- 
ment which resulted in his death on April 14, 1920. The decedent 
was also survived by a widow who is not entitled to compensation 
liecause she was not living with her husband at the time of his death 
and was not actually dependent upon him for support. The decedent, 
at the time of his death, was over twenty-one years of age, and the 
dependency of his parents cannot be presumed. It must be proven. 

The claimants' ca»e consists of the testimony of the mother and 
father and of a brother of the deceased. Xo attempt was made to 
show clearly the expenses of the household or the manner in which 
the claimants were dependent upon the deceased son for support 
The testimony is far from satisfactory and is not at all convincing. 
The Keferee hail the witnesses before hitn and is the best judge of 
their credibility, and, after a careful review of all the evidence in 
the case the Board feels that the Keferee was fully justified in find- 
ing that the claimants were not dependent upon the deceased and in 
disallowing the claim. 

The findings of fact and conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



Lorenzo v. Coal Run Mining Co. 

Leg — Logs of use of. 

A petition of the defendant to modify n compensation agreement so as to provide 
for the lot. of the use of . leg will he granted where the claimant sustained an 
injur, to his right leg, nnd at the time the petition was nled had so completely re- 
covered that the leg was less use to him than before the .cedent, hot more .. to 
him than nn nrtiheial leg. 

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Claimant represented by Charles J. Morgiotti, Punxsutawney. 
Defendant represented by Henry 1. Wilson, Punxsutawney. 

OPINION BY COMMISSIONER HOUCK— August 16. 1921. 

In tbis case the claimant met with an accident on September 30, 
1916, suffering a compound fracture of the right leg below the knee 
and slight injuries to the groin and right arm. A compensation 
agreement was entered into and compensation was paid for a period 
of 215 weeks. The defendant then filed a petition to modify the 
agreement to provide for the payment of compensation for the loss 
of the use of the right leg. After hearing, the Referee modified the 
agreement in accordance with the defendant's petition, and the 
claimant has appealed from the Referee's order on the ground that 
although the claimant's injury is confined below the knee, it is a 
permanent one which results in total disability. 

A review of all the evidence discloses that the only result of the 
injury to the claimant still remaining is a condition in his right leg, 
below the knee, which interferes with the claimant's use of that 
member to a considerable extent. The medical evidence shows that 
bis right leg, in its present condition, is more useful to the claimant 
than an artificial limb would be because he has freer motion than 
he would have with an artificial limb. And the claimant is far from 
totally disabled. The case, therefore, does not present the problem 
of whether the claimant would be entitled to compensation beyond 
the 215 week period, if totally disabled and if the total disability 
were due solely to the condition of his leg. This is simply a case in 
which the claimant has suffered an injury to hie leg which has ren- 
dered that member of less use to him than it was before the accident, 
but of more use to htm than an artificial limb would be. In other 
words, he is in a better position than he would be had he lost his 
leg entirely. Therefore, the claimant can not complain of the 
Referee's order which awards him compensation for the loss of the 
line of his leg. This is all the compensation he is entitled to and 
the Referee's order is free from error. 

The findings of fact and conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



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MacCall v. Powell, Clouds & Co. 



Where deceased scratched his Loud on a roll of barbed wire, and a short Ume 
later developed a skin disease called pemphigus, from which he died, compensation 
will be disallowed when the medical testimony shows (hat pemphigus comes from a 
Hfiir shy ami there is no real cause or condition that would pre-dispose lo it nt nil. 



Claimant represented by Isaac M. Price, Philadelphia. 
Defendant represented by H, A. Davis, Philadelphia. 

OPINION BY COMMISSIONER HOUOK— August 1C, 1921. 

The claimant's deceased husband was injured on December 10, 
11)20. He was carrying reels of barbed wire when one of the reels 
slipped and cut the index Anger of his right hand and the second 
linger of his left hand. He received first aid treatment and was sent 
home. Within a few days he went to see a physician and be was 
referred to Dr. Arthur H. Mann who saw the claimant for the flrRt 
time on December 21, 1920. At this time the claimant was suffering 
from a skin eruption. The skin eruption consisted of blisters con- 
taining a somewhat turbid fluid and the trunk, small of the back, 
fore-arms, both arm pits and the face were the regions involved. 
Dr. Mann saw the decedent for the last time on January 5, 1921, at 
which time another physician wax called in. The highest temper- 
ature during Dr. Mann's treatment was 101i/>, and his diagnosis of 
the case was pemphigus, which is an acute or chronic condition of 
the skin. In Dr. Mann's opinion the accident had nothing to do 
with the development of this disease. 

Dr. Ij. P. Bowers was the physicinn who succeeded Dr. Mann. He 
treated the decedent from January 6 until his death on January 15. 
Dr. Bowers diagnosed the ease aB septicemia caused by the scratch 
on his hand. Dr. Bowers testified that the decedent's temperature 
generally ran from 9S<£ to 100 and at one time was a little over 100. 
Dr. B. F. Devitt, was called on behalf of the defendant. This 
physician examined the decedent on January 1, 1921. Dr. Devitt 
found the case very peculiar, did not think that it was septicemia, 
and arranged to have the decedent examined by Dr. Abram Strauss, 
a skin specialist. 

The testimony of Dr. Strauss is also in the record. He is a spe- 
cialist in dermatology and has had wide experiences in the treat- 
ment of skin diseases. He saw the decedent on January 3 and 
diagnosed the condition as pemphigus which is a very rare disease. 
Dr. Strauss testified that the disease comes from a clear sky and 
there is no real cause or condition that would ire-dispose to if at 



all, and traumatism is not ji cause. According to Dr. Strauss, the 
decedent was not suffering from septicemia and there was no rela- 
tionship whatever between the injury and the disease which caused 
the death. 

From all the evidence, the Referee concluded that the cause of 
death wan a skin disease known as pemphigus which was not caused 
directly or indirectly or aggravated j n any way by the accident 
which the deceased sustained. 

In view of the medical evidence, we cannot see how the Referee 
could have reached any other conclusion. It is a remarkable coin- 
cidence that the development of the disease followed so closely after 
the happening of the accident, but since the medical testimony shows 
that there was no connection, whatever, between the two. compensa- 
tion cannot he awarded. 

The findings of fact and conclusions of law of the Referee are, 
accordingly, affirmed, and the appeal is dismissed. 



Morgan v. Philadelphia & Reading Coal & Iron Co. 

—Death from— Result of accident. 



Where an automobile truck fell through a bridge into n stream, the driver suf- 
fering nn injury on the chest nnil becoming thoroughly wet from his full into the 
water, his death from pneumonia will be compensated when the medical testimony 
shows liint the injury to his chest caused pleurisy which finally developed into 
pneumonia. 

Claimant represented by Roger J. Dever, Wilkes-Barre. 
Defendant represented by B. D. Troutman, and John F. Whalen, 
Pottsville. 

OPINION BY COMMISSIONER HOUCK— August lfi, 1921. 

This is an appeal by the defendant from an award of compensa- 
tion. The Referee's findings of fact are to the effect that the claim- 
ant's deceased husband was employed by the defendant as a driver. 
That on October 1, 1920, he was hauling a pump from Tine Knot 
colliery to Hecksbersville and while crossing a bridge that spans 
a small stream, the wagon, two mules and the decedent all fell from 
the bridge into the creek. The decedent suffered an injury on the 
chest and was thoroughly wet from his fall into the water. He 
reti.rred to his home at Miuersville and the next day Dr. F. M. 
Quinn, who is one of the defendant's compensation physicians, was 
summoned. He found the decedent's chest contused, but no ribs 
broken. He prescribed for Ibe decedent and treated him for a cold. 
The decedent returned to work on October (i and worked until Oc- 



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283 

lober 27 when lie quit work on account of his physical condition. 
At this time he was suffering from pleurisy and bronchitis which 
developed into bronchial pneumonia, causing death on November ll. 
The Referee found further that the decedent had been afflicted with 
asthma which predisposed him to pleurisy, and that the injury to 
the chest suffered on October 1 caused the pleurisy which finally 
developed into pneumonia with a fatal result. 

The only medical testimony in the case is the evidence of Dr. 
Quinii and the evidence of Dr. .7. L. Warne, who testified as au ex- 
pert, never having examined the decedent. 

Dr Quinn testified that the injury received by the decedent was 
indirectly the cause of the pneumonia which eventually killed him, 
and he explained this to mean that the exposure and the bruise to 
the chest was an exaggeration of his asthmatic condition, lowering 
Ms resistance and leading to pleurisy and pneumonia. 

There is evidence to support the Referee's findings and no reason 
appears which would warrant the Board in disturbing them, There- 
fore, the findings of fact and (Conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



Penkowsky v. American Car & Foundry Co. 

Pour»e of employment — Atcay from place of employment — Violation of ruleg. 

Compensation will be awarded in the case where a helper to a shear cutter went 
to the opposite side of the machine from the side lie worked on. in violation of the rules 
of the defendant, ami- had part of his hand amputated, as the claimant's injuries 
were caused by the operation of the defendant's business on the premises which were 
occupied and under control of the defendant, and the claimant's presence thereon 
was required at the time by the nature of his employment. 

Claimant represented by R. O. Brockway, Berwick. 
Defendant represented by William E. Elmes, Berwick. 

OPINION BY COMMISSIONER JARRETT— August 16, 1921. 

HEARING DE NOVO 

The claimant, on July 2, 11)20, was in the employ of the defendant 
company, which is engaged in the business of building cars, at its 
shop in Berwick. Tie was employed as a helper to a rotary shear 
cutter and was receiving an average weekly wage in excess of |20. 
The parties at the time were bound by the provisions of the Work- 
men's Compensation Act of 1915 as amended by the Act of 1919 P. 
L. 642. On said date about it o'clock A. M., the claimant, in viola- 
tion to orders, went to the opposite side of the machine from where 

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he worked; that is. to the position of the shear cutter whom he was 
helping, picked up a piece of strap iron and while in the act of feed- 
ins it into the shears the glove on his right hand caught, in some 
way and his hand was taken into the shear and as a result his 
thumb and three Angers of his right hand were amputated. The 
defendant furnished the claimant reasonable medical, surgical and 
hospital services as required by the Act. 

The matter was heard before Referee Lewis, who awarded compen- 
sation for the loss of the use of the right hand. The defendant com- 
pany appealed and a hearing de novo was granted. At the hearing 
lie novo no testimony was offered, the testimony taken before the 
Referee being adopted by the parties to be considered as if taken 
before the Board. 

Counsel for the defendant takes the position that the claimant is 
i.ot entitled to compensation as he was not injured while in the 
course of his employment ; that by him violating orders and- being 
in a place where he was forbidden to he, he took himself out of the 
course of his employment as contemplated by the Act. 

It is true that the claimant was guilty of contributory negligence, 
but negligence is no bar to compensation. Siglin v. Armour, 261 
l'a. 30. The claimant's injuries were caused by the operation of the 
defendant's business or affairs on premises which were occupied by 
and under the control of the defendant and upon which its business 
or affairs were being carried on, the claimant's presence thereon 
being required at the time by the nature of his employment. All 
of these requirements being shown affirmatively by the testimony 
and negligence being no bar, the claimant is entitled to compensa- 
tion. 

A full discussion of the law on the question here involved will be 
found in Hale, ,«. Savage Fire Brick Co., 75 Snpr. Ct. 454, and in 
Cranville v. Scranton Coal Co.,— Supr. Ct.— 7 Dept. Reports 992. 

We are satisfied that the claimant met with an accident while in 
Hie course of his employment, and that as a result of that accident 
the claimant lost the use of his right hand. 

CONCLUSIONS OF LAW. 

1. The parties were, at the time of the accident, bound by the 
provisions of the Workmen's Compensation Act of 1915 as amended 
by the Act of 1919, P. L. 642. 

2. Since the claimant sustained his injuries by accident in the 
t of his employment with the defendant on its premises as 



d:;yG00^Ic 



stated, hits injuries resulting hi the loss of the use of the claimant's 
Tight hand, he is entitled to compensation as provided by the Act. 



Compensation is accordingly awarded to the said John Penkowsky, 
claimant, against the American Car & Foundry Co., defendant, at 
tfhe rate of 60% of $20 or ?12 per week for a period of 175 weeks 
-from July 13, 1920 or a total compensation of $2100 to be paid as 
'provided by the Act supra. 



Haxton v. O'Brien Bros. & Rees. 

Course of employment — Accident on premises controlled by employer— Fall fro 
horse on way -from -work. 



Am employe, who worked on a coucrete gang const meting a Suite highway, Ik 
«j»itl«l to compensation for injuries sustained while on hi* way liomr over the 
■ewiy constructed highway, not jet open to the public, as his injuries were cause.! 
lyr the condition of the premises of the defendant, which premises were under the 
.■ontrol of the defendant, and the 'claimant's presence thereon at the time of the 
accident was required by the nature of his employment. 

Claimant represented by John R. Wilson, Scranton. 
Defendant represented by W. C. Howell, Scranton. 

OPINION BY COMMISSIONER JAKRETT— August 10, 1921, 
HEARING DE NOVO 
1. Alex Haxton, the claimant, was, on the 31st day of October, 
1919, in the employ of the defendants who were engaged in the con- 
struction of a State highway between Duninore and Klmhnmt in 
the county of Lackawanna. The claimant had charge of a "concrete 
Sang." The claimant lived some distance from the place where he 
was employed and when Mr. O'Brien, one of the defendants, engaged 
him, the question came up as to how he was to get to his place of 
work. The claimant owned a saddle horse and it was finally agreed 
that the claimant was to use his horse in going to and from his work, 
and the wage was fixed at 60 cents per hour. 

On said date, after the claimant had finished his day's work and 
while he was on his way direct from his work to Ms home bv his 
,mial and customary course, which was over the road being built 
■y the defendants, and closed to the public, riding his horse as usual, 
he came to a place where they were erecting a bridge, which was a 
continuous part of the improvements the defendants were construct- 
ing, and while be was going around a devour where the bridge wa. 

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286 

being erected, his horn .slipped, throwing tlie claimant to the ground 
and as a result he suffered a fracture of his right collar hone. 

2. The claimant thus met with an accident while in the course of 
his employment with the defendants, the injuries being caused by 
the condition of the premises of the defendants, which premises 
were under the control of the defendants, the claimant's presence 
thereon at the time of the accident being required by the nature of 
his employment. 

'.i. Notice of the accident was given by Hie claimant to the super- 
intendent of the defendants but not until after he had procured the 
services without application to the defendants for services as pro- 
vided by the Act. 

4. The claimant at the time of the accident was earning an aver- 
age weekly wage in excess of $20. 

5. The parties were, at the time of the accident, bound by the 
provisions of the Workmen's Compensation Act of 1915. 

CONCLUSION'S OF LAW. 

1. The parties were at the time of the accident bound by the 
provisions of the Workmen's Compensation Act of 1915. 

2. The claimant having met with an accident in the course of his 
employment, the injuries suffered being caused by the condition of 
the premises of the defendants, which premises were under the con- 
trol of the defendants, the claimant's presence thereon at the time 
of the accident being required by the nature of his employment, he 
is entitled to compensation. See Lyons v. Peoples Savings Bank, 
251 Pa. BOO; l>ean r. Phila. & Reading Coal & Iron Co., 1 Mackey 
279; 3 I>ept. Reports, 2880; Rhoades t\ Phila. & Reading Rwv., Co., 
1 Mackey 187; 3 Dept. Reports 1518; Mowick r. West End Coal Co.. 
I Mackey 450; Tolau v. Phila. & Reading Coal & Iron Co., 5 Dept. 
Reports, 24.'{:S, affirmed C. P. Schuylkill county, (i Dept. Reports 450. 
affirmed by Supreme Court, 270 Pa. 12; Landy r. American Inter- 
national Shipbuilding Co., (i Dept. Reports 1075. These cases trcal 
with the law as applying when an employe is injured when going to 
or from work and furnish support to the position we here take. We 
have not found as a fact that the claimant was actually engaged in 
the furtherance of the business or affairs of the defendants at the 
time of the accident in that he was to deliver a verbal message to 
the night watchman as the weight of the evidence negatives the 
contention. 

3. The claimant not having made application for medical services 
as required by the Act, befnre having procured the services himself, 
mint himself bear the expense. 



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There is accordingly awarded to the claimant, Alex Haxton, and 
against O'Brien Bros. & Rees, defendants, and their insurance car- 
rer, the Ocean Accident & Guarantee Corp., as provided hy the Act, 
compensation at the rate of 50% of $20 or $10 pe r week from and 
including November 15, 1919, until and including February 6, 1920, 
or 11-6/7 weeks, at $10 per week or ?118.fl7. 

The claimant has tiled a bill of costs amounting to $8.44, but the 
defendant not having been Rerved with notice as required by the rule? 
of the Board, they cannot be imposed against the defendant. 



Lahm v. Heyl & Patterson. 

Malicnl expcnuta—IAubilitv oj employer l"r. 

Where an employe, w1n> who ruptured while in ilie cmirne of tiiw employment, 
notified his employer thiit lie intended to undergo mi operation for his rupture, and 
the employer after such notice f;iils to furnish medical and surgical aid. the claimant 
ma? choose his own physician, mid the employer will be liable for the expenses of 
i lie operation ns provided for in the Art. 

Claimant not represented by counsel. 

Defendant represented by Charles II. Smith, Pittsburgh. 

OPINION BY COMJ1ISKIOXKR HOICK— August 10. 1921. 

In this case the claimant was ruptured while in the course of his 
employment, and, after bearing- the lteferee awarded him compensa- 
tion. After a careful review of all the evidence in Ibe case the Board 
is of the opinion that the Referee did not err in so doing. 

The defendant objects particularly, however, to the amount of the 
Referee's award for medical services. The evidence shows that the 
claimant notified his employer that he intended to undergo a surgical 
operation. The employer said nothing and the operation was per- 
formed by a physician of the claimant's own choosing. There is no 
suggestion, whatever, that the operation was not correctly performed, 
and, under the circumstances, the employer is liable for the medical 
services. However, the Referee erred in calculating the amount for 
which the employer is liable. He held the employer liable for medi- 
cal and hospital services amounting to $175. The evidence shows that 
the medical and hospital services for the first thirty days after dis- 
ability cost the claimant a total of $175. Of this amount $125 was 
paid to the surgeon who performed the operation. The balance, or 
$50, must have been for hospital services. 



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." ,. 288 

Section UOfrfe) of the Workmen's Compensation Act as amended 
in 1919, provides that tlio cost of surgical and medical services, medi- 
cines and supplies shall not exceed $100, and in addition to such 
services the employer must furnish hospital treatment, services and 
supplies if necessary. Under this section, the claimant is entitled 
to only $100 for the operation, and. with the hospital charges, the 
total amount to which the claimant is entitled is $150. 

The Referee's award is accordingly modified to read: The de- 
' fendant also to pay the claimant $150 (instead of $175) for medical 
and hospital services. With this modification, the findings of fact 
and conclusions of law of the Referee are affirmed. 



Zaday v. Sterling Coal Co. 

Evidence — When suffitiient to sustain finding. 

Where tlie decedent, a trackman in defendant's mine, was seen alone the tracks 
by II inotorman, nnd was found bcneatli a tri[> of curs by the Kami; motormmi a baJf 
buur later, the body bearing evidence of having bran run over, there is sufficient 
evidence to find that the deceased was killed while in the course of bis employment. 

Claimant represented by Charles H. Young, New Castle. 
Defendant represented by John Madden, Jr., Pittsburgh. 

OPINION BY COMMISSIONER HOUCK— August 19, 1921. 

This is an appeal by the defendant from an award of compensation. 
The basis of the appeal is that the evidence does not support the find- 
ings of fact. After hearing the testimony, the Referee found as a 
fact that the decedent, Joseph Zaday, while laying track inside the 
defendant's mine, was run over by a' mine locomotive, receiving in- 
juries from which he died the same day. He also found that the 
decedent left to survive him as dependents his father and mother. 

After a careful review of the evidence in the case, the Board is 
satisfied that the findings of fact are supported by the evidence. 
One witness, Harry Lacey. testified that he was a motorinan in the 
same mine in which the decedent worked; that the deeedent was 
employed as a trackman. That he saw the deeedent alive between 
% and 4 o'clock'on October 1, 1920. standing beside the track, and 
that when lie returned with the trip of cars about thirty minutes 
later, he noticed that the cars had run over something and upon 
investigation found the decedent under the second car of the trip. 
dead. The decedent's body bore evidence that it had been run over 
and iifa tools were smashed. This evidence is sufficient to sustain the 
Referee's finding that the decedent met with an accident while in 
the course of his employment which resulted in his death. 



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289 

The evidence on the question of dependency is also sufficient to 
sustain the award. The decedent contributed a portion of his wages 
regularly to his parents and the Referee was fnlly justified in finding 
that they were partially dependent upon him for support. 

The findings of fact and conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



Swartz v. Borough of Hanover. 

Independent contractor — When entitled to compensation. 

Where a member of a firm of independent contractors is injured wTiile acting as 
a bricklayer from which injuries he later dies, compensation will be allowed wben 
it is shown that the firm of which he was a member was hired by the defendant 
to make repairs on certain borough streets, and that the entire control of the work 
was in the hands of the borough engineer, and not in the hands of the firm. 

Claimant represented by Ehrehart & Range, Hanover. 

I 'efendant represented by T. F. Chrostwaite. Borough Solicitor, Han- 



nEARING DE KOTO 

The claimant is the widow of Charles H. Swartz, deceased, who on 
September 2, 1920, was a member of the firm of Leppo & Swartz and 
were engaged in the business in the borough of Hanover, as contrac- 
tors for all kinds of brick and stone construction. They were ac- 
tually engaged in this business doing work for the various persons at 
the same time. Leppo and Swartz worked on some of the jobs alone 
and at other times worked with their men. As partners they were 
paid for all jobs on which they or their men worked, whether it was 
at a certain fixed sum or by actual time. They paid their men and 
divided the profits equally between themselves, allowing each for in- 
dividual work done. 

The borough of Hanover had from time to time engaged the firm 
to do work for it such as to make repairs to street paving, erection 
of catch basins, laying of crossings, etc., and it was the custom for 
the firm to furnish their own tools and help but the borough fur- 
nished the materials and at times furnished labor to asist in the work 
being done. The amount due for work done by them individually 
or their men was paid to the said firm by the borough on periodical 
accounts rendered by the firm based on the time it took to do the 
work at so much per hour. In accordance with this custom, L. I. 



19 



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290 

Shultz, assistant supervisor of the borough, acting with authority, 
engaged the firm, through Mr. Swartz, the deceased, to repair the 
pavement on Broadway over which the borough had control. Mr. 
Swartz went to the job and on the afternoon of September 2, 1920, 
while he, as a bricklayer, was actually engaged in repairing the 
brick pavement, he was accidentally struck by a passing automobile 
resulting in a fracture of his right leg and other injuries and on 
September 18, 1820, he died as a result of the injuries sustained. 

The Referee disallowed compensation on the grounds that the de- 
ceased was not an employe but was an independent contractor. The 
claimant appealed and the Board granted a hearing de novo. At the 
hearing de novo testimony was taken and the testimony taken before 
the Referee was adopted to be considered as if taken before the 
Board. 

The only question in dispute is the question as to the relationship 
of the parties at the time of the accident. Was it employer and em- 
ploye or contractor and contractee? 

"The legal principle which solves the inquiry as to 
whether a contract creates the relation of employer and 
employe between the parties to it or makes the per- 
former of it an independent contractor, haei been re- 
cently laid down in Smith v. State Workmen's Insur- 
ance Fund, 202 Pa. 286. where he said : 'By this con- 
tract the employer reserved to himself no right in con- 
nection with the work to be done, excepting the right to 
question the sufficiency of the result accomplished, meas- 
ured by the requirments of the contract * • • Where 
this latter feature is of the substance of the contract 
it has been uniformly held, and nowhere more strictly 
and explicitly than in our own State, that the one em- 
ployed is an independent contractor. The general rule 
is thus stated — Where a person lets out work to another, 
the contractee reserving no control over the work or 
workmen, the relation of contractor and contractee 
exists and not that of muster and servant . .' . If 
one renders service in the course of an occupation, re- 
presenting the will of his employer only as to the result 
of his work, and not as to the means by which it is ac- 
complished, it is an independent employment." 

"Speaking on the question here involved in McCoIligan v. 
Penna. R. R. Co., 214 Pa. 229, we held ( A master is one 
who stands to another in Buch relation that he not only 
controls the result of the work of the other but also may 
direct the manner in which the work shall be done. . 
The relation of master and servant exists where the em- 
ployer has the right to select the employe, the power to 
remove and discharge him, and to direct both what work 
shall be done, and the way and manner in which it shall 
be done." ,-, , \ 

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291 

"In hia opinion in the present case, Judge Fuller, the 
President Judge of the court below, thus correctly and 
tersely states the principle : 'Where control is not re- 
served over the means, the relationship is that of inde- 
pendent contractor, and conversely where such control 
is reserved, the relationship is that of servant or em- 
ploye '." Kelley v. D. L. & W. R. R. Co.— Pa. St.— opin- 
ion filed May 2, 1921. 

We are satisfied that the weight of the evidence, with the above as 
our legal guide, establishes the fact that the relationship here was 
employer and employe. By referring to the testimony it will be 
found, and we find as a fact that A. E. Kohr, borough engineer and 
supervisor, through council and acting for council, had control at all 
times over the work being done; that is, had direct control at all 
timee as to when the work was to be done, and had such control 
that he could discharge them or any of their employes at any time 
and could command a change in the way work was being done at any 
time; if changes were made in the progress of the work; that is, work 
had to be done over, or the means of doing it consumed more time; 
the borough bore the expense ; no loss to Leppo & Swartz as they were 
paid a fixed rate per hour. This is convincing evidence that the bor- 
ough reserved control and could exercise it as to the manner and 
means of doing the work. 

It is true that the occasion never arose that the engineer, Mr, Kohr, 
had to order work changed or discharge Leppo or Swartz or any of 
their men, but nevertheless the weight of the evidence supports the 
finding that the borough had this right if it. wished to exercise it. 
In addition to the facts found above, we find as follows: 

1. That at the time of the accident which caused the decedent's 
death, the decedent and the defendant were bonnd by the provisions 
of the Workmen's Compensation Act of 1915, as amended by the 
Act of 1919 P.L. 642. 

2. The decedent died as a resultant effect of injuries which were 
"violence to the physical structure" of his body, suffered by accident 
while he was actually engaged in the furtherance of the business or 
affairs of the defendant. 

3. That the wages or income of the decedent were, at the time of 
the accident, in excess of $20 per week. 

1. That the expense of the last sickness and burial of the decedent 
amounted to |216.40, no part of which has been paid by the defendant, 

5. The decedent left to survive him and actually dependent upon 
him for support, a widow, Emily H. Swartz, the claimant, and two 
children, H. Wilson Swartz, born March 5 1912, and Ray B. Swartz, 
Born May 25, 1918, who were living with and dependent upon the de- 
cedent at the time of his death. 

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CONCLUSIONS OF LAW. 

1. The decedent and the defendant were, at the time of the ac- 
cident, bound by the provisions of the Workmen's Compensation Act 
of 1915, as amended by the Act of 1919, P.L. 642. 

2. The decedent having died as a resultant effect of injuries which 
were "violence to the physical structure" of his body suffered by acci- 
dent while he was actually engaged in the furtherance of the business 
or affairs of the defendant, and the claimant and children living with 
him at the time of his death and being actually dependent upon him 
for support, are entitled to compensation as provided by the Act, and 
the claimant is entitled to the sum of $100 to apply on the expenses of 
the last sickness and burial as provided by the Act 

(The award follows.) 



Delso v. Pennsylvania Coal & Coke Corp. 

Dependents — Widow living apart from hwshand — Marriage ajicr injury to husband. 

The widow of a deceased employe, who died as a result of injuries received, is 
not entitled (o com pens at ion when the evidence shows that she was not married to 
the deceased until after his injury, and two days previous to his death, and never 
lived with him or received any support from him. 

Claimant represented by Charles H. Young, New Castle, and William 

Welsh, Nanty Glo. 
Defendant represented by James W. Leech, Bbensburg. 

OPINiON BY COMMISSIONER JARRETT— August 19, 1921. 

HEARISQ DF. NOVO. 

The Referee in this case awarded compensation and the defendant 
has appealed. The basic facts are as follows: 

On November 23, 1920, Arthur Delso, the deceased employed, met 
with an accident while in the course of hia employment with the 
defendant, which resulted in death on December 4, 1920. The claim- 
ant, Manilla Bay (Smith) Delso, and the deceased, had obtained a 
license to marry on November 16, 1920, through the Clerk of the 
Orphans' court of Cambria county and they made arrangements to be 
married on November 25, 1920, but owing to the accident the marriage 
was postponed. On December 2,. 1920, they were married by Rev. 
L. D. Ott, pastor of the M. E. Church of Patton. At the time the 
deceased was in the hospital in bed in a very critical condition, where 
he remained until death, December 4, 1920. 

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We are satisfied that the mariage was legal; the claimant there- 
fore is the widow of the deceased. The testimony shows that tht- 
claimant expects to give birth to a child sometime in 1021, and that 
the deceased is the father of the child. 

The testimony also supports these facts: That the deceased- made 
bis home with the claimant's parents for about two weeks before the 
date of the accident and had been making contributions to the sup- 
port of tbe claimant up to the time he met with the accident and he 
had purchased furniture and houshold articles preparatory to going 
to housekeeping, and that the claimant lived at her father's home 
from the time of her marriage until the death of her husband, but 
there is no evidence that the deceased contributed anything to the 
amount of the support of the claimant after they were married on 
December 2, 1920. 

Is the claimant entitled to compensation? 

"No compensation shall be payable under this section 
to a widow, unless she was living with her deceased hus- 
band at the time of his death, or was then actually 
dependeut upon him for support." 

For the widow to be entitled to compensation she must show then 
that she was living with her husband at the time of his death or was 
then actually dependent upon him for support. The evidence shows 
that they were married on December 2, 1020, while he was in the hos- 
pital in a very critical condition. Hhe went home immediately after 
the marriage, which was some distance away, and did not return 
until the next evening when she stayed for a short time and again 
went home and was at her home when her husband died. 

We think, under the circumstances, that the evidence does not 
establish the fact that she was living with her deceased husband at 
the time of bis death ns contemplated by the Act. 

Was she actually dependant upon him for support at the time of 
his death? The testimony shows that from the time of the marriage 
until his death she was living with her father; that the deceased 
gave her no money after their marriage; that she married him while 
he was on his death-lied. There is no direct evidence that she was 
actually dependent and the strong presumption under the circum- 
stances is that she was not. 

"A dependant widow, as defined in Section :i07 of the 
Workmen's Compensation Act of 1015, does not mean^, 
dependency in law or mere potential or prospective 
dependency but dependency in fact or actual dependency 
nt the time of the accident and sulwequcnt death." 
Wilde v. P. R. It. 5 Dept. Reports 1S73 : 3 Maxwell, 120. 



"The term 'dependency' in the statute contemplates 
actual dependency and must affirmatively appear in the 



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294 

record as a fact. No rigid rule can be laid down aa to 
the amount or character of evidence necessary to show 
actual dependency." Morris v. Yough. Coal & Supply 
Co., 266 Pa. 216. 

Counsel for the claimant has cited a New York case reported in 
SN.aC. A. 878, and 108 N. B. 86, but this has no controlling force 
here for the reason that under the New York statute there is a pre- 
sumption of dependency in favor of widows and of children under 
the age of eighteen. It does not matter under the Act whether or not 
a woman was living with her husband at the time of the accident 
causing his death, so far as her right to compensation is concerned. 
She must merely establish the relationship of husband and wife, but 
under our Pennsylvania statute she must show that they were "living" 
together or that she was "actually dependent upon him for support." 
Neitherof these requirements have been met. 

Counsel for the claimant also cites in support of the claim, the 
case of Gross v. Electric Traction Co. 180 Pa. 99. This was a case 
decided under the Act of April 15, 1851, and in the opinion of the 
court it is stated: 

"The plaintiff at the time of the death was the widow 
of the person injured. That is the only condition she 
was to fulfill in order to recover." 

We think this has no application here for the reason that she must 
fulfill other conditions under the Compensation Act and that is to 
show that they were "living" together or that she was "actually 
dependent upon him for support." 

We are satisfied that the widow is not entitled to compensation 
as she was not livng with her husbaud at the time of his death or 
actually dependent upon him for support as contemplated by the law 
and we so find as a fact, but the child when born will be entitled to 
compensation is all that need be proved is that it is the child of the 



We will therefore set aside the findings of fact, conclusions of law 
and award of the Referee and substitute the folowing in addition to 
the above: 

1 That on November 23, 1920, the deceased was in the employ of 
the defendant as a miner at its mine at Paxton, and was receivng an 
average weekly wage in excess of $20. and on said date, while in the 
course of his employment with the defendant, he at the time being 
actually engaged in the furtherance of the business or affairs of the 
defendant, he met with an accident, to-wit, there was some rock fell 
upon him, breaking a leg, inflicting a cut on the forehead, straining 
his thigh and certain internal injuries, and as a result of these 
injuries he died on December 4, 1920. 



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2. That at the time of the accident the deceased Arthur Delso, 
and the defendant, Pennsylvania, Coal & Coke Corp., were bound, by 
the provisions of the Workmen's Compensation Act of 1915 as amend- 
ed by the Act of 1919, P. L. 642. 

3. A posthumous child is expected in July, 1921 which, when 
born, will be entitled to compensation. 

CONCLUSIONS OF LAW. 

1. That at the time of the accident, the deceased, Arthur Delso, and 
the defendant, Pennsylvania Coal & Coke Corp., were bound by the 
provisions of the Workmen's Compensation Act of 1915 as amended 
by the Act of 1919, P. L. 642. 

2. The claimant not living with her husband at the time of his 
death or then actually dependant upon him for support, is not 
entitled to compensation, but the posthumous child, when born, will 
be entitled to compensation. 

3. The defendant, however, is directed to pay the expense of the 
last sickness and burial as provided by the Act, to whom it may be 
due. 

disallowance. 

Compensation is accordingly disallowed. 



Blackwell v. Lehigh Valley R. R. Co. 

Claim petition — Who may present. 

The wife of mi injured employe, who is not mentally fit to present his own peti- 
tion and who has no guurdiuii, may present bis petition as next friend. It is 
within the discretion of the Board to fix the meaning of the words "parlies" and 
"employe," and it was not an abuse of that discretion to permit the wife as next 
Friend to present the petition and prosecute the claim to an award. 

Practice and procedure — Amendment ol record, 

The Referee may allow the record to be amended after it is closed by sub- 
stituting a guardian as claimant, Section 420 of the Act provides that the Referee 
has the right of its own motion, either before, during or after the trial to make 
an investigation of the faets. This section impliedly gives the right to allow any 
amendment which does not go to the merits or introduce a new cause of action. 

Claimant represented by John Anstock, Mahanoy City. 
Defendant represented by W. F. Gleason, New York, N. Y. 



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OPINION BY COMMISSIONER JARRETT— August 19, 1821. 

On August 1, 1920 Mrs. Verna Brown Black well, wife of Howard 
Blackwell, tiled a petition for compensation for his disability. She 
tiled the petition as his wife and next friend. It appears that he at 
the time was mentally incompetent to file the petition in his own be- 
half. It was referred to Referee Seidel who held several hearings. At 
the first hearing, which was held on September 24, 1920, the attorney 
for the defendant objected to the claim petition in the following form : 
"We object to Mrs. Blackwell presenting a petition in this case by 
reason of the fact that she is uot the appointed guardian or committee 
of her husband and therefore is incompetent to do so." which objec- 
tion wan over-ruled by the Referee. 

On April IS, 1921, after the record was closed, the said Howard 
Blackwell was adjudged mentally incompetent by the Court of Com 
mon Pleas of Schuylkill County and John Anstock was appointed his 
guardian. The Referee thereupon substituted Anstock as the peti- 
tioner and made an award of compensation to hiin for the disability 
of the said Howird Blackwell. The defendant Company has appealed 
on the following grounds: 

"First The Referee erred in denying the motion of 

the defendant, duly made at the first hearing, 
to dismiss this petition on the ground that 
the claimant named therein, Mrs. Verna 
Blackwell, wife and next friend of Howard 
Blackwell, was not authorized by law to file 
said petition nqt having been appointed 
guardian or committee of the person of 
Howard Blackwell." 

"Second. The Referee erred in concluding as a con- 
clusion of law that from the findings compen- 
sation is due the guardian of the injured em- 
ploye until such time us there is a change in 
his condition, the said guardian not having 
been appointed as such guardian, nor having 
agreed with the defendant upon the compen- 
sation payable in this case, and not having 
tiled a petition within one year after the acci- 
dent to the said Howard Blackwell, as pre- 
scribed by Section 315 of the Workman's 
Compensation Act." 

"Third. The Referee erred in awarding compensation 
as set forth on page 4 of his decision." 

"Fourth. The Referee erred in naming John Anstock, 
Guardian of Howard Blackwell, as claimant 
in this case in his decision, the said John 
Anstock never having been made a party to 
this proceeding in accordance with the law." 



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297 

"Fifth. The Keferee erred in permitting the substitu- 

tion, as the claimant herein, John Anstock, 
Guardian of Howard Blackwell, for Mrs. 
Verna Blackwell, wife and next friend of 
Howard Blackwell, in violation of the rules 
promulgated by the Workman's Compensa- 
tion Board, and of the Workmen's Compensa- 
tion Law." 

The parts of the Workmen's Compensation Act applicable here are 
Sections 315, 401, 410 and 420, as amended by the Act of 1919, P. L. 
(142, which, iu'part, are as follows: 

Section 315: 

"In cases of personal injury all chums for compensa- 
tion shall he forever barred unless, within 

one year after the accident one of the parties shall have 
filed a petition as provided in Article IV hereof." 

Section 401 : 

"The term 'Employer' when used in this article shall 
mean the employer as defined in Article I of this Act or 
duly authorized agent or the insurer if such insurer has 
assumed the employer's liability, or the fund, if the em- 
ployer be injured therein." 

Section 410: 

"If, after any accident, the employer and the employe 
or his dependent concerned in any accident, shall fail 
to agree upon the facts thereof and the compensation 
due under this Act, the employe or bis dependents may 
present a claim for compensation to the Board." 

Section 420: 

'The Board or a Referee if it or he deem it necessary, 
may, of its or his own motion either before, during or 
after any hearing, make an investigation of the facts 
set forth in the petition or answer." 

It is to be noted that the Act defines "employer" and has left the 
words "parties" and "employe" undefined, so it must be that the 
legislature has left it to the Board in its discretion to fix their mean- 
ing. It then be,ing within the discretion of the Board, was it abuse 
of discretion to permit the wife as next friend to present the petition 
and prosecute the claim to an award. We think not. 

Here we have an employe injured while in the course of his employ- 
ment ; he is not mentally fit to present a petition ; he had no guardian 
and his wife, his nearest of kin, presents it for him as next fipend. 
It was not that compensation be awarded to her use but that compen- 
sation be awarded for his benefit. Under these circumstances, having 



8 



in mind that the express purpose of the Workmen's Compensation 
Act is to grant relief to iujuied employes and their dependents, the 
Act to *be construed liberally, technicalities to be brushed aside, we 
feel that it was no abuse of discretion to permit her, as the next friend 
of her husband, to present the petition for him. The defendant has 
not been injured, as the testimony shows a meritorious claim and the 
law in plain words fixes the defendants liability. 

Did the Referee eir in substituting the guardian after the record 
was closed. We think not. It is true that this is an amendment to 
the proceedings but it is not an amendment which goes to the merits 
of the case or such as introduces a new cause of action. We find as a 
general principle of practice and procedure that "the right to amend 
is discretionary and does not depend upon statute." P. B. B. v. 
Bunnell, SI Pa. 414., 

"Amendments should be allowed unless they introduce a new cause 
of action." Jones v.I\ R. R. 2.'t4 Pa. 321. 

We are not altogether without legislative authority to make the 
amendment. Section 420 supra provides that the Beferee or the 
Board has the right, of its own motion, either before, during or 
after the trial to make an investigation of the facts. This section 
impliedly gives the right that if it is not an amendment which goes to 
the merits of the case or introducng a new cause of action, to amend 
as was done here. 

Counsel for the defendant has cited Klines Estate, 9 Pa. Diet. Rep. 
386, where it was held that it was only a committee of a person men- 
tally incompetent could present Ins petition. We feel this has no 
controlling force here as the Workmen's Compensation Act is a sys- 
tem in itself and when it can be interpreted standing alone, we need 
not rely on outside authorities. He also cites the case of Perham c. 
Merchant Shipbuilding Corp., 5 Workmen's Compensation Board 
Decisions, 424, where the Board held that it was error to amend a 
petition by changing the date of accident at a time after the statute 
of limitations had run. This case has no controlling force here for 
the reason that there it was an amendment which went to the merits 
of the case and a«;ked for after the statute of limitations had run.. 

We are satisfied that the position we here take is correct and is 
within the true spirit of the Act. 

We are also satisfied that the evidence is ample to support the 
findings of fact. 

The findings of fact, conclusions of law and award of the Referee 
are accordingly sus'ained and the appeal i« dismissed. 



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Wyandt v. Pennsylvania R. R. Co. 

Compensation agreement — When terminated — Cessation of disa bilitj/. 

Where nn employe sustained nn injury to his eye, from which he has fully re- 
co vi- red, the compensation agreement will be terminated. The employer cannot be 
forced to pay compensation simply because the employe, due to an industrial de- 
pression or other causes unrelated to bis disability, finds it impossible to secure 
employment. 

Claimant represented by A. V. Divley, Altoona. 
Defendant represented by H. Z. Maxwell, Philadelphia, and O. A. 
Houser, Altoona. 

OPINION BY COMMISSIONER HOUCK— August 24, 1921. 

In this case the defendant tiled a petition to terminate the agree- 
ment on February 11, 1921. The petition was referred to a Referee 
and a hearing held on April 7, 1921. In due course the Referee 
handed down an order refusing to terminate the agreement. From 
this order the defendant has appealed alleging that there is no evid- 
ence to sustain the Referee's findings and no finding by tlie Referee 
that the claimant is still disabled. 

The only evidence taken at the hearing was the testimony of Dr. 
Benjamin Franklin Baer, Jr., and Dr. H. Maxwell Langdon, both of 
them called as impartial witnesses. Their evidence shows that the 
vision in the claimant's right eye is practically normal and that there 
is a loss of vison in the left, or injured eye, of from 30 to 50 per 
cent. Both physicians agreed that the claimant, at the time of the 
hearing, was not disabled and that he was capable of carrying on his 
usual occupation. 

The Referee's opinion refusing to terminate the agreement refers 
to an agreement between the defendant and their relief department 
which has prevented (he claimant from returning to work although 
he has been anxious to do so. There is no evidence, whatever, con- 
cerning such an agreement and no evidence that the claimant was not 
able to secure employment. In addition to this the Referee's opinion 
contains this significant clause: "It is true that the claimant has 
been forced to accept compensation during a period when he has 
been able to work and has sustained a loss in earning power over 
which he had no control, and it seems to the Referee that in view of 
these facts, he should be compensated in some way or other for this 
loss of earning power." The Referee's opinion then proceeded to 
instruct the defendant to continue paying compensation until such 
time aa the claimant is able to establish, by returning to work, 
whether or not there is any partial disability. 



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Under the Compensation Act an employee is bound to pay com- 
pensation only for total or partial disability, and once disability 
ceases, compensation must cease with it. The employer cannot l>e 
forced to pay compensation simply because the employe, due to an 
industrial depression or other causes unrelated to his own disability, 
finds it impossible to secure employment. The evidence in this caw 
is clear and uncontradicted that the claimant is able to return to 
work and that the condition of his eye does not constitute either 
total or partial disability. Accordingly, the Keferee erred in refusing 
to terminate the compensation agreement. From all evidence in the 
case the Board finds as a fact that the claimant's disability ceased 
on April 7, 1921, and that he was able to return to work on that date. 
* Therefore, the order of the Referee is reversed and Compensation 
Agreement No. 871947 is accordingly terminated as of April 7, 1921. 



Crane v. Presbytery of Lackawanna. 

Course o/ employment — Miuxionary injured icftiJe on iray home from serriccs. 

A claimant, who whs a missionary employed by the defendant, fell on an icy 
sidewalk while on her way home from church services, is not entitled to compensa- 
tion for her injury as she was neither in the course of her employment at the 
time of the accident nor was she furthering the interests of her employer. 

Claimant represented by James H. Torrey, Scranton. 
Defendant represented by M. J. OgBbury, Wilkes-Barre. 

OPINION BY COMMISSIONER HOUCK— AUGUST 24, 1921. 

This is an appeal by the defendant from the Referee's award of 
compensation. The claimant was employed by the Presbytery of 
Lackawanna as a missionary of the Italian Church, Pittston, at a 
salary of $75 per month. She had certain fixed duties to perform 
both on Sundays and other days. In addition to these fixed duties, 
she was subject to call by the superintendent of the district at any 
time. On Sunday, December 12, 1920, the claimant had attended the 
afternoon services at the Italian mission and was on her way to her 
home in West Pittston with Rev. Frank Cherebine, pastor of the 
Italian Church. When she reached a point about a quarter of a mile 
from the church she slipped on the icy pavement and injured her 
right knee. On this state of facts the Referee found that the claimant 
was injured while in the course of her employment, and the only 
question raised in the case is whether she was in the course of her 
employment when injured. 

In the Referee's discussion of the testimony he states that the 
claimant was discussing the work of the mission with Rev. Frank 



301 

Cherebine at the time she fell, but there is no evidence In the record 
on this point. Every Sunday it was the claimant's duty to attend 
church at 10:30 in the morning. After church whe would return to 
her home for dinner. It was then her duty to return for Sunday 
school at 2:45 and after Sunday school she would again return to her 
home for lunch and to prepare for the evening services at 7:30. On 
the day of the accident the claimant had attended Sunday school and 
was on her way home, after the service, when Rhe fell. The claimant's 
testimony on this point is as folTbws: 

• "Q. On Sunday, December 12. 1920, you had finished 
your regular duties at the Italian Presbyterian 
Church on Parsonage street, Pittston? 
A. My duties would not have been completed until 
nine o'clock that night. I told you that day you 
were to see me. 

Q. You had finished teaching your Sunday school 
class; and finished with your Sunday school ei- 



A. Yes, but that did not complete my day's work. 

Q. Yon finished your afternoon's duties at the church ? 
A. Yes, sir. 

Q. And you were on your wav home? 
A. Yes, sir. 

Q. And you did not intend making any calls that 

afternoon ? 
A. I had enough to do without that. 

Q. It was your purpose to get your supper at your 

room when you got there? 
A. If I had supper that day, I would probably get it 
there; it would consist of a piece of bread and 
butter and a cup of cocoa. 

Q. And while preparing that you would have attended 

to your studies? 
A. Yes, I would have a lot to do-. 

Q. You would have finished your studies and come to 

church for the evening services at 7:30? 
A. Yes, sir." 

There is no evidence that the claimant was doing anything required 
by her employment as a missionary at the time she was injured. She 
was on her way borne for lunch and to prepare for the duties of the 
evening. It is true that her duties for tlie day would not have been 
finished until after the evening service, but neither are the duties 
of any employe finished when he leaves the place where he is employed 
for his midday lunch, and it is undoubted that if such an employe 
is injured while on his way home for lunch, he is not entitled to com- 



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302 

pensatioti because be is Dot in the course of bia employment. After 
Sunday school dismissed on tbe day on which the claimant was in- 
jured, so far as the record shows, her duties were at an end until 
she returned for the evening service or at least until she reached 
ber home and commenced her preparation for the evening service. 
In the interim she was free to do as she pleased. Had she been on 
her way to make a call in tbe line of her duty when she fell, the case 
would present a different proposition, but in the absence of any evid- 
ence that she was performing any-duty at the time she fell, tbe Board 
is bound to hold that she was not in the course of her employment. 
The claimant in this case, as we view it, is exactly in the same posi- 
tion as an employe on his way home for lunch. 

We have read the claimant's brief with care and have examined the 
cases which the claimant urges upon us as controlling the case at bar. 
It might not be inappropriate to say a word concerning the cases 
cited at this time. The claimant cites Stahl v. Watson Coal Co., 6 
Dept. Reports. 1090, C. P. Indiana county. In this case the employe 
was a special officer. He had no regular hours of work but was sub- 
ject to call at any time. On the day of the accident he left his em- 
ployer's premises with the express intention erf going home. A few 
hours later his dead body was found on the right-of-way of a rail- 
road which adjoined some of the property he was employed to guard 
in the direction of his home. The .Referee, on this state of facts, dis- 
allowed compensation and on appeal to the Board, the disallowance 
of the Referee was affirmed, 4 Pa. Workmen's Compensation Board, 
209. The disallowance was on the ground that the natural inference 
to be drawn from all the testimony was that the employe bad left his 
work and" was on his way home and, hence, was not in the course 
of his employment. The case was appealed to the Common Pleas 
of Indiana county which reversed the Referee and the Board and 
awarded compensation. The case was further appealed to the Su- 
preme Court which reversed the Common Pleas and reinstated the 
disallowance of the Compensation Board, 268 Pa. 452. The claimant 
relies on the decision of the Common Pleas, which, having been re- 
versed, no longer carries any weight 

The claimant also relies on Shaffer v. Nelson Ice Cream Co., '! 
Dept Reports, 1623. This case is cited as standing for the proposi- 
tion that * person who is subject to call at all times is entitled to 
compensation for an injury sustained while on his way to work al- 
though it may have been before the usual working hours. The sylla- 
bus of the case as reported so states the principle thus expressed is 
much broader than is warranted by the opinion in the case. In that 
case the claimant was the superintendent of the defendant company 
and the company had installed a telephone in the claimant's residence 
in order that orders for ice cream could be telephoned by customers 

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to the claimant after the plant had closed for the day, and it wa§ 
the duty of the claimant to see that such orders were sent out on the 
early morning express. The evening before the accident the claimant 
had received an order by telephone and the next morning, -while on 
his way to the defendant's plant for the express purpose of shipping 
out the order on the early express, he fell and injured himself. Com- 
pensation was awarded on the ground that the claimant was further- 
ing the interests of his employer at the time of the injury. We fail 
to see any analogy between the facts in that ease and the facts in 
the case at bar. 

Other cases cited by the claimant are Wilson v. Avonmoore Bor- 
ough, 6 Dept Reports, 945; Moorehead v. Wineman, 5 Dept. Reports, 
2233, C. P. Westmoreland County ; Tally v. D. L. P. Motor Co., 4 Pa. 
Workmen's Compensation Board, 318. In all these cases the facts 
show that the claimant was actually furthering the interests of his 
employer at the time of the injury and compensation was awarded 
on that basis. In our opinion none of these cases support the claim- 
ant's contention. The case at bar presents the simple proposition 
of an employe, having completed a particular duty, on her way home 
to secure lunch and to prepare for further duty, injured on a public 
highway. In the absence of any evidence that the claimant was 
furthering the interests of her employer at the time of the injury, 
we cannot say that she was in the course of her employment. 

From all the evidence in the case the Board finds as a fact that 
the claimant was not in the course of her employment at the time 
she was injured. The award of the Referee is, accordingly, reversed, 
and compensation is disallowed. 



Gallagher v. McHatton Foundry Co. 

Compensation agreement — If hen it tetlt not be reinetated. 

A compensation agreement will not be reinstated in the case of an employe who 
sustained an injury to his arm while at work, when the testimony shows that be is 
able to "return to work, anil is not disabled as a result of the injury sustained. 

Appellee represented by J. B. Mofett, Philadelphia. 
Appellant represented by R. r. F. Maxwell, Philadelphia. 

OPINION BY COMMISSIONER HOUCK— August 24, 1921. 

This is an appeal by the defendant from the order of the Referee 
reinstating a compensation agreement. The claimant was injured 
on January 26, 1917. He was putting tongs on a crucible pot and 
suffered an injury to his right arm. In 1918 he signed a final receipt, 



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304 

having received about $700 compensation. On August 21, 1918, the 
claimant filed a petition to review the agreement and, after hearing, 
before the Board, the petition was dismissed. On December 10, 1918, 
he filed another petition to review the agreement which was also 
dismissed by the Board. The record remained in this state until 
September IS, 1920, when the claimant died a petition to reinstate 
the agreement which is the petition now l>efore the Board. The 
Referee reinstated the agreement as of November 13, 1918, obviously 
overlooking the fact that on April 2, 1919, the Board dismissed the 
claimant's petition to review the agreement. 

At the hearing before the Referee Dr. M. Dorrance testified on 
behalf of the claimant He said that the claimant complains of 
pain in his arm, but he could not testify that the pain is sufficient 
to interfere with the normal use of the arm. He said that the claim- 
ant's right shoulder shows a chronic hypertrophic arthritis and 
a chronic bursitis of the acromioclavicular joint. This condition, 
according to Dr. Dorrance, could be the result of a number of causes, 
and Dr. Dorrance is of the opinion that the claimant, who is a mould- 
er, cannot carry on his usual occupation. 

Dr. Elder also testified. In his opinion the claimant can work 
and should have recovered from an injury such as that suffered by 
the claimant in three or four months. 

Dr. Walter H. Blakeslee, physician for the Compensation Board, ex- 
amined the claimant at various times and his testimony is in the 
record. He testified that the X-ray plates show a thickening at the 
end of the clavicular and the end of the acromio process; that is, 
at the junction of the two bones forming the acromioclavicular joint. 
Dr. Blakeslee subjected the claimant to various tests and gave it as 
his opinion that the claimant has sufficient use of his arm to do cer- 
tain lines of moulding, where the parts are not too large and he does 
not have excessive weights to carry. 

The evidence also shows that the claimant's present condition may 
be due to some cause unrelated to the injury; that is, he may have 
recovered from the effects of the injury and that some other condition 
may have intervened, snch as infected teeth, and set up a similar 
condition in his shoulder. The record shows that the Board consider- 
ed this case in 1918 and again in 1919, and on both occasions dismissed 
the claimant's petition, and we are convinced, from the evidence 
taken on the claimant's last petition, that he is not totally disabled, 
that he is able to return to work and that he should make an effort to 
secure employment, which, in all probability, would benefit him. 
The Board, therefore, finds as a fact, from all the evidence in the 
case, that the claimant is not disabled as a result of the injury sus- 
tained, and that he is able to return to work. 



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The order of the Referee is accordingly reversed and the claimant's 
petition to reinstate the agreement is dismissed. 



Picuinas v. Andora Nurseries. 

Practice and procedure— Burden of proof — Insufficient evidence. 

Compensation will be refused where claimant alleges he was ruptured while at 
work in the course of his employment but the evidence offered on behnlf of the 
claimant to show the happening of the accident which caused the hernia was very 
unsatisfactory and not auflicient to warrant an award. 

Claimant represented by F. J. Bowden, Philadelphia. 
Defendant represented by Authur T. Porteous, Philadelphia. 

OPINION BY COMMISSIONER HOUCK— August 24, 1921. 

HEARINCi DE NOVO. 

In this case the Board granted a hearing de novo in order to afford 
the claimant every opportunity to produce evidence in support of 
his claim. The testimony taken before the Referee was adopted by 
the Board as though taken before it and additional testimony was 
introduced. 

All the evidence shows that in July, 1920, the time when the claim- 
ant alleges he was ruptured, he was engaged in mowing grass with 
a hand scythe. He continued to work until August 28. In the mean- 
time he had consulted a physician who found him suffering from 
a hernia and applied a truss. The evidence offered on behalf of the 
claimant to show the happening of any accident which caused a 
hernia was very unsatisfactory and not sufficient to warrant an 
award. Since the claimant has failed to make out a case, compensa- 
. tion must be disallowed. 

From all evidence in the case, the Board makes the following find- 
ings of f actB : 

FINDINGS OF FACT. 

1. That neither the claimant nor the defendant had, on July 20, 
1920, rejected the operation of the provisions of the Workmen's Com- 
pensation Act of 1915 and its supplements. 

2. That on July 20, 1920, the claimant was in the employ of the 
Andora NurserieB as a laborer, at a weekly wage in excess of $20. 

3. That on August 23, 1920, the claimant was examined by Dr. 
Robert Miller and was found to be suffering from a hernia on the 



20 



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right side. That Br. Miller furnished the claimant with a truss 
for which he paid $7. 

4. That the hernia suffered by the claimant waB not caused by an 
injury by accident while in the course of his employment with the 
defendant. 

5. That on July 20, 1920, the KoyaL Indemnity Co. was the com- 
pensation insurance carrier of the defendant, and has agreed to pay 
to the claimant for the defendant any compensation that may arise 
out of these proceedings, 

From the foregoing findings of fact, the Board draws the following 
conclusions of law: 

CONCLUSIONS OF LAW. 

1. That, on July 20, 1920, both parties were bound by the provis- 
ions of the Workmen's Compensation Act of 1915 and its supplements. 

2. That since the claimant did not meet with an injury by accid- 
ent while in the course of his employment, he is not entitled to com- 
pensation. 

DISALLOWANCE. 

Compensation is accordingly disallowed. 



Watson v. We Schofield Co. 

Dependency — Self-supporting parents are not dependents. 

The parents of a deceased son, killed while in the course of his employment, are 
not entitled to compensation on the grounds of dependency when the evidence shows 
that their income, exclusive of donations received from the deceased, enabled (hem 
to save a considerable sum of money from year to year. 

Claimant represented by W. M. McKim, Philadelphia. 
Defendant represented by Charles Goldsmith, Philadelphia. 

OPINION BY COMMISSIONER HOUCK— August 24, 1921. 

HEARING JiB NOVO. 

The only question involved in this case is whether the parents, 
who are the claimants, were dependent upon their deceased son for 
support. The Referee awarded compensation and the defendant 
appealed. Ai review of the testimony showed that the evidence offered 
was not efficient to establish dependency and a hearing de novo was 
awarded in order to allow the claimants every opportunity to prove 
their claim. At the hearing dc novo the testimony taken before the 



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307 

Referee was adopted as though taken by the Board and the whole 
record is now before the Board for its disposition. 

At the time of the accident, which resulted in the death of the 
claimant's son, the household consisted of the father and mother. 
four children, all of whom were wage earners, and a niece about 
seven years of age. The claimants owned their own home, for which 
they paid £5100 and there is a mortgage of $4700 against it. One 
of the four children paid $7 a week board and paid all her other ex- 
penses herself. All the other children donated the bulk of their 
earnings to their parents and were supported by them. The niece 
has 1 1000 out at interest which returns $60 a year. The deceased 
son was about twenty-nine years of age and counting him, there were 
five children besides the niece. In computing the income of the 
family we have excluded any donations which the decedent may have 
made to his parents. 

The testimony shows that the four children, exclusive of the de- 
cedent, donated weekly $36.50 to their parents, which makes a yearly 
total of approximately $1898. In 1919, the year preceding the death 
of the decedent, the father, who is an insurance agent, eairned a total 
of $1,864.68. These two sums, together with the $60 income from 
the niece's money, amount to $3,822.68. The claimants testified that 
the mother supplied the food and clothing for all the children from 
the money which the children gave her, and the father paid all the 
expenses of the house. These expenses, as detailed by the witnesses, 
[were: taxes, $85.50 a year; water rent, $16 a year; interest on the 
mortgage, $235 a year; insurance, $125 a year; telephone, $36 a year;* 
light, $36 a year ; coal, $150 a year ; repairs to the house, $250 a year ; 
gas, $1.50 a month, doctor bills about $30 a year; carfare, lunches 
and clothing of the father, $300 a year. Averaging these expenses 
on a monthly basis they amount to approximately $110 a month, and 
the monthly income was approximately $318. No effort was made 
at either of the hearings to estimate the average expenses of feeding 
and clothing the children, consequently, we are unable, from the 
evidence, to say what these expenses were, but we do know that the 
difference between the income and the expenses detailed by the wit- 
nesses, is approximately $200 a month. We are inclined to think 
that that amount should be sufficient to clothe and feed a family 
of five, composed as this family was, very easily; and that such is 
the fact is borne out by the other evidence in the case. At the time 
of the decedent's death the father had about $200 on deposit in bank 
and had at least $700 out at interest. He testified that lie was saving 
for a rainy day. We are of the opinion that the testimony falls short 
of proving dependency. Dependency, under the Compensation Act, 
does mvt mean contributions which enable the head of the family 
to save a large amount of his income instead of applying it to the 



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support of his family. BotL the parents are joined as claimants in 
this case and the Board would scarcely be justified in awarding com- 
pensation to a parent on the ground of dependency when the evidence 
shows that the parent has been successful in saving a considerable 
sum of money from year to year. 

From all the evidence in the case, the Board makes the following 
findings of fact: 

FINDINGS OF FACt. 

1. That neither John F. Watson, the claimant's deceased son, 
nor Wm. Schotield Co., the "defendant, had filed with the Workmen's 
Compensation Bureau, nor served upon the other, notice of rejection 
of Article III of the Workmen's Compensation 'Act of 1915 as amended 
in 1919. 

2. That on April 7, 1920, John F. Watson was in the employ of 
the Wm. Schofield Co. as a millwright and templet maker at an 
average weekly wage of $35. 

3. That on April 7, 1920, while in the course of his employment 
in the defendant's plant in Philadelphia, while measuring for a abaft 
casing, the decedent's clothing caught on a shaft resulting in an 
injury from which he died instantly, the defendant having due notice 
of the accident. 

4. That on April 7, 1920, the decedent left to survive him his 
father and mother, James W. Watson and Emily Watson, the claim- 

• ants, who were not dependent upon him within the meaning of tbc 
Workmen's Compensation Act. 

5. That the expenses of the decedent's last sickness was in excess 
of |100, no part of which has been paid by the defendant. 

6. That on April 7, 1920, the Manufacturers' Casualty Insurance 
Co. as compensation insurance carrier for the defendant, agreed to 
pay to the claimants for theMefendant any compensation that may be 
found to be due arising out of these proceedings. 

From the foregoing findings of fact, the Board draws the following 
conclusions of law: 

CONCLUSIONS OF LAW. 

1. That both the decedent and the defendant were bound by the 
provisions of the Workmen's Compensation Act. " 

2. That since the claimants, the parents of the decedent, were not 
dependent upon him at the time of his death, they are not entitled to 
compensation. 

3. Since the decedent met with an accident while in the course of 
his employment, which resulted in his death, the defendant is liable 
for the burial expenses not exceeding f 100. 



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309 

Upon these findings the Board makes the following award: 

AWARD. 

To the personal representatives of John F. Watson, the sum of f 100 
covering the expenses of the decedent's last sickness and burial. 



O'Donnell r. Lehigh Valley R. R. Co. 

litter-state commerce — When engaged in 



Where an employe, a railroad engineer, is under orders to deliver a certain engine 
it a particular station to haul nn interstate (rain, and to then assist in moving an 
iitcr-Btate freight train, and is killed while delivering the engine, he is engaged 
n interstate commerce and his dctitb :s not compensable under the Act. 



Claimant represented by Roger .1. Devcr, Wilkes-Barre. 
Defendant represented by W. F. Uleeson, New York, N. Y. 

OPINION BY COMMISSIONER HOUCK,— August 24, 1921. 

HEARING DE NOVO 

In this case the Referee disallowed compensation on the ground 
that the claimant's deceased husband was engaged in interstate com- 
merce at the time he met with the accident which caused bis death. 
A hearing dc novo was ordered Iby the Board and additional testimony 
was presented, and the whole record is now before the Hoard for its 
disposition. 

The facts, as disclosed by the evidence, are these: The defendant 
company runs a passenger train from Philiipsburg, N. J., to Mt. Car- 
niel. From this poiint the train proceeds over the Pennsylvania R. R. 
to Pittsburgh, and returns by the same route. These two trains are 
known as No. 509 and 510. On May 31, 1919, engine No. 1619, on 
train No. 509, bad a broken spring banger which occurred between 
Hazleton and Delano. When the chief train dispatcher at Hazleton 
learned of this fact, lie ordered repairs made to engine No. 1619 
at Mt. Carmcl and, knowiing that the engine would not be ready for 
the return run, he substituted engine No. 1674 as an emergency as- 
signment to take the train No. 510 back at 5:10 P. M. The same 
night, after the chief train dispatcher had completed his tour of duty, 
he was succeeded by the night chief dispatcher and the night ch,ief 
dispatcher received a message from the master mechanic in South 
Gaston that engine No. 1619 was due for a boiler wash and that it 
should be washed before the engine was returned to Easton. There 
is a Federal regulation providing that an engine must be washed out 



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31* 

every thirty days, and the time limit on this particular engine had 
expired. The chief night dispatcher then learned that engine No. 
1619 could not be washed out and returned to Sit. Carinel in time to 
put on train No. 510 on Sunday night, June 1, and he notified the 
roundhouse foreman at Hazleton to get out an extra engine and crew, 
the engine to be taken from Hazleton to Mt. Carmel and left there to 
be taken from Hazleton to Mt. Carmel and left there to be attached 
to train No. 510 Sunday night. This was to leave Hazleton for Mt. 
Carmel at 7:45 A. M. Sunday. In accordance with these orders the 
crew dispatcher at Ashmore ordered the foreman to get an engine 
ready from the roundhouse, and the foreman prepared engine No. 1676. 
The crew dispatcher gave the crew to a call boy and the crew called 
wai John J. O'Dounell, engineer the claimant's deceased husband 
and P. A. Hanlon, fireman. The crew dispatcher told the engineer 
replace engine No. 1619 on train No. 510 and then to assist in push- 
ing a train of freight to Delano. While O'Donnell was proceeding 
from Hazleton to Mt. Carmel, in pursuance of these orders, with 
engine No. 1676, running light, at a point near Raven Bun the engine 
was derailed toppled over, and O'Donnell was caught in the wreckage 
and Instantly killed. The evidence shows .further that the defendant 
company was engaged in both intra and inter-state commerce, that 
trains No. 509 and 510 are interstate trains, and that the freight 
train which O'Donnell was to assist in taking from Mt. Carmel to 
Delano contained a number of cars carrying inter-state shipments. 
On this state of facts the Board is unable to escape the conclusion 
that O'Donnell, the decedent, was engaged in interstate commerce 
at the time of the accident which caused his death. 

The claimant's contention appears to be that engine No. 167fi would 
arrive at Mt. Carmel at about 10 o'clock in the morning, that it would 
not be required to haul train No. 510 until 5:10 that evening and 
that in the meantime it might be assigned to some other work; ami 
also, that engine N. 1674, which had hauled train No. 5M) the night 
before, would have to be withdrawn from service before engine No. 
1676 could be said to have been assigned to that run. And again, 
that when O' Donnell was proceeding from Harelton to Mt. Carmel 
with engine No. 1676, train No. 509 was on its way from Phillipsbnrg 
to Mt. Carmel. 'As we view it, these contentions are without merit. 
Engine No. 1676, at the time it was being driven by O'Donnell, had a 
definite assignment to interstate commerce and O'Donnell himself 
had definite orders to deliver the engine to Mt. Carmel and then to 
assist in the movement of an inter-state freight train. What O'Don- 
nell was doing at the time of the accident was certainly an incident 
of inter-state commerce. 



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311 

We feel that this case is controlled by two cases decided by the 
United States Supreme Court; viz, North Carolina By. v. Zachary, 
232 U.S., 248; Erie Ry. Co. v. Winfleld, 244 U.S., 170. In the Zach- 
ary case the Court said : 

"It is argued that because, bo far as appears, deceased 
had not previously participated in any movement of 
interstate freight, and the through cars had not aa yet 
been attached to his engine, his employment inter-state 
commerce was still in futuro. It seems to us, however, 
that his acts in inspecting, oiling, firing, and preparing 
his engine for the trip to Selma were acts performed as 
a part of inter-state commerce, and the circumstance 
that the interstate freight cars had not as yet been 
coupled up is legally insignificant." 

So, in the case at bar the decedent was preparing his engine for in- 
ter-state commerce at the time of the accident. He was taking it to 
the plaee where it was needed in that commerce. 

In the Winfield case the employe was the engineer of a switch 
engine used in switching cars of inter state and intrastate commerce 
and he was killed hy an engine as he was leaving the yard after his 
day's work. It was held that he was engaged in inter-state com- 
merce at the time of his death. The case at bar differs from this case 
only as to time. The decedent's injury occured at the commence- 
ment instead of at the completion of his day's work. See also Apple- 
ton v. Lehigh Valley R. R. Co., 2 Mackey, 149 C. P. Northampton 
County). 

At the hearing de novo the claimant's counsel offered in evidence 
Article III of the Workmen's Compensation Act of Pennsylvania and 
requested the Board to find specifically as a fact that Article III of 
the Compensation Act is the- law of Pennsylvania. Surely no one 
will dispute the fact that Article III of the Workmen's Compensation 
Act is the Law of Pennsylvania, but it is not applicable to injuries 
sustained by an employe when he and his employer are engaged in 
inter-state commerce. Erie Ry. Co. v. Winfield, supra. 

From all the evidence in the case, the Board makes the following 
findings of fact: 

FINDINGS OF FACT. 

1. That neither the claimant's deceased husband nor the defendant 
had, on June 1, 1919, rejected the provisions of the Workmen's Com- 
pensation Act of 1 915 ; and Article III of that Act was at the time the 
laiw of Pennsylvania. 

2. That John J. O'Donnell, the deceased husband of Pauline 
O'Donneli, the claimant, was. on June 1, 1919, employed by the de- 
fendant company as an engineer at a weekly wage in excess of |20. 

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312 

3. That tbe Lehigh Valley R. K. Co. was, on June 1, 191!), a com 
mon carrier, operating lines by rail, engaged in both inter-state and 
intrastate commerce and on that date was under the direction and 
control of the Director General of Railroads, United States Railroad 
Administration. 

4. That on the morning of June 1, 1919, at about 7:30 o'clock John 
J. O'Donnell, the claimant's deceased husband was ordered to take 
engine No. 1676 from Hazelton, to Mt. Carmel, to replace an engine 
engaged in hauling train No. 510 from Mt. Carmel, to Phillipsburg. 
N. J. That engine No. 1619, which was regularly assigned for this 
run, was temporarily out of commission. That engine No. 1674 was 
temporarily assigned to this run on May 31, 1919, and that engine No. 
1676 was to replace engines No. 1619 and 1674 and to haul train No. 
510 from Mt. Carmel, to Phillipsburg, X. J., leaving Mt. Carmel at 
5:10 P.M. June 1,1919. 

5. That John J. O'Donnell, the claimant's deceased husband, was 
ordered to deliver engine No. 1676 at Mt.Carmcl and then to assist 
at moving a freight train, a number of cars of which contained inter 
state shipments, from Mt. Carmel, to Delano. 

6. That in compliance with these orders, John J. O'Donnell left 
Hazleton, with engine No. 1676 at about 7:30 A.M. on June 1, 1919, 
and proceeded toward Mt. Carmel, running light, and that about 9:30 
A.M., when near Raven linn, engine No. 1676 left the track, went over 
an embankment, injuring John J. O'Donnell to such an extent that he 
died instantly. 

7. That train No, 510 was, on June 1, 1919, nn inter-state train 
with its termini in Pittsburgh, and rhillipsburg, N. J., respectively, 
and that the freight train which John J. O'Donnell was to assist in 
hauling from Mt. Carmel, to Delano, was an interstate train. 

8. That since John J. O'Donnell was taking engine No. 1676 to 
Mt. Carmel, under orders, to be used to draw train No. 510, and 
after delivering the engine he was to assist in moving an interstate 
freight train, on June 1, both John J, O'Donnell and the defendant 
were engaged in inter-state commerce at the time of the accident 
which resulted in the death of John J. O'Donnell. 

9. That John J. O'Donnell left to survive him his wife, Pauline 
O'Donnell, claimant, and the following chidren: Frances O'Donnell, 
Itorn February 7, 190S; Margaret O' Donnell, born February 28, 1911; 
Carl O'Donnell, born September 16. 1913; Helen O'Donnell, born Nov- 
ember 2R, 1915. 

10. That the expenses of the burial of the deceased were in excess 
of ?100, no part of which has been paid by the defendant. 

From the foregoing findings of fact the Board draws the following 
conclusions of law: 



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313 
CONCLUSIONS OP LAW. 

Bince John J. O'Donnell and the defendant were, on June 1, 1919, 
at the time of the accident to the said John J. O'Donnell, both engaged 
in inter-state commerce, the Workmen's Compensation Board is with- 
out jurisdiction of the case and the dependents of John J. O'Donnell 
are not entitled to compensation under the Workmen's Compensation 
Act of 1915. 

Compensation is, accordingly, disallowed. 



Hanna r. W. I-. & R. B. Matthews. 

Agricultural eiit}ilt,iimint- -Ceriifitii in'.ru- 

Where the defendant is the owner of a eert'fied dairy, gelling nothing b'lt milk, 

nnd the only grain raiser) by defendant Is used to feed the cows, and - ■■!"-. 

only duties consist in the performance of certain tasks incident to sterilizing and 
preparing milk for market, Held : He is entitled to compenfltit'on for injuries 

Claimant not represented by counsel. 

Defendant represented by E. P. White, Scranton. 

OPINION BY COMMISSIONER HOUCK— August 29, 1921. 

This is an appeal by the defendant from the Referee's award of 
compensation. The claimant was employed by the defendants at 
their certified dairy as a laborer. On September 13, 1920, at noon, 
the claimant started on his way home for lunch on his motorcycle 
and before he had succeeded in leaving the premises of his employer 
he ran into a barbed wire fence on a private driveway owned by the 
defendants sustaining a laceration of his right arm which disabled 
him from September 13, 1920, to October 4, 1920. The basis of the 
appeal is that the claimant was engaged in agricultural employment 
at the time he was injured, and also that there is no evidence that 
the injuries were caused by the condition of the defendant's premises. 

The injuries were caused by the barbed wire fence on the defend- 
ants premises and the accident happened on the defendants' premises 
at a place where the employe's presence was required by the nature 
of his employment. Accordingly, the claimant is entitled to compen- 
sation provided he was not engaged in agricultural employment. 

The important question involved in the case is whether the claim- 
ant was engaged in agriculture at the time of the accident. The 
defendants are the owners of a certified dairy. There are 149 cows 
owned by the defendants and the milk which they yield is sterilized 
bv the defendants in accordance with the regulations of the Board 

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314 

of Health of New York. Part of the milk is then shipped to Brook- 
lyn, N. Y-, certified, and about 200 quarts of special milk is sent to 
Scran ton. The only grain raised by the defendants is hay which is 
used to feed the cows, and nothing is sold by the defendants except 
milk, the only occupation of the defendants being a certified dairy. 
The defendants do not raise sufficient feed for tneir stock themselves 
and buy whatever grain and corn is necessary. The duties of J lie 
claimant consisted of washing and sterilizing milk bottles, taking 
care of the boiler and getting ice out of the ice house. On this 
state of facts we do not think that the claimant was engaged in 
agriculture at the time of the accident. 

The Act of June 3, 1915, P. L. 777, is as follows: 

"Section 1. lie it enacted, etc., That nothing con- 
tained in any article or any section of an act, entitled 
rbe Workmen's Compensation Act of 1915, shall apply 
to or in any way affect any person who, at the time of 
injury, is engaged in domestic service or agriculture." 

This Act is a supplement to the Workmen's Compensation Act of 
1915. It is in derogation of the policy of the State as announced 
in the Compensation Act and should be strictly construed in order 
that every employe except those falling within the plain terms of 
the supplemental act may not be deprived of the benefits of the 
Workmen's Compensation Act. Construing the supplement strictly, 
we are unable to find that the claimant, in this case, was engaged 
in agriculture. The sole business of the defendants was a certified 
dairy, the conduct of a place where milk is specially prepared to 
meet the requirements of certain health regulations. The dairy 
was in no sense incidental to general farming for the defendants 
produced nothing on their farm except a certain quantity of bay 
which they used themselves to feed their stock. Iu addition to this 
the claimant's duties consisted only of the preparation of the milk 
so that it would meet the regulations of the Board of Health of Sew 
York. We feel that it would go beyond the intention of the Legis- 
lature to hold that such an employe was engaged in agriculture. 

The defendant urges upon us the decision in Dimple v. Fromm, 
2 Pa. Workmen's Compensation Board, fi7, as controlling the case 
at bar. The opinion in that case was written by Commissioner 
Leech and we are satisfied, after a careful review of the decision, 
that it does not control this case. The facts in the Dimple case in- 
dicate that the defendants were owners of a farm on which they 
raised truck and grain, and in addition, they conducted a chicken 
and poultiy farm. And the Board held in that case that an em- 
ploye engaged on the poultry farm was engaged in agriculture. The 



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315 

facts of the case are clearly distinguishable from the facts of the 
case at bar. The Commissioner made several observations in his 
opinion by way of dicta which would indicate that he considered 
an employe engaged on a dairy farm as engaged in agriculture, 
But we do not feel that the principle of that case should be extended 
beyond its own facts. Every case of this character is governed en- 
tirely by the underlying facts. 

For the reasons above stated the Board is of the opinion that the 
Referee did not err in awarding the claimant compensation and the 
findings of fact and conclusions of law of the Referee are accord- 
ingly affirmed, and the appeal is dismissed. 



Benson v. Jones & Lnugblin Steel Co. 

Accident— Within the meaning of the Act. 

Injuries need not be suffered instantaneously ; nil the facts and circumstances 
o; the employment at or near the time when tJie accident ^s alleged to have 
happened must he considered. The word "Accident" is not a technical legal terfci 
with a elenrly defined meaning. Spmk : ng generally, but with reference to legal 
liabilities, an accident means any unintended and unexpected occurrence which 
produces hurt or loss. 

Claimant represented by W. F. Gailbraith, Pittsburgh. 
Defendant represented by F. M. Painter, Pittsburgh. 

OPIKIOX BY COMMISSIONER JARRETT— August 29, 1921. 

HEARING DE XOrO. 

Arthur Benson, the claimant, entered the employ of the Jones 
& Laughlin Steel Co., defendant, whose business is the manufactur- 
ing of steel, at its Keystone plant in Allegheny county, on August 
16, 1920. His duties were to operate an electric reamer, the handles 
of which he was required to hold with both hands. In the operation 
of the reamer there was a constant jarring. He continued at this 
work until August 20. 1920, without any ill effects as a result of 
the work. On the night of August 20 at about 12 o'clock, while he 
was operating the reamer in the usual and customary manner, he 
felt a numbness in his left hand and arm. The hand then became 
sore but he worked on, and at about 9 A. M. he noticed a blister 
or callous on the palm of the left hand near the index finger, which 
was the seat of soreness ; he finished his turn, the soreness contnuing 
throughout the night. He did not return to work the next day as 
it was Saturday and on Monday he was unable to go to work due to 
the condition of his hand. He then consulted a Dr. Marshall who 

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316 

treated him until September 8, 1920 and who charged for his service! 
the sum of $16. The claimant then went to Dr. McGuire for treat- 
ment. It appears that the doctor is the defendant's physician and 
this was the first notice that the defendant had of the injury. The 
claimant was treated by him until October 5, 1920, but in the mean- 
time on October 1 he returned to work for the defendant at light 
work and worked until October 12, 1920, when he was compelled to 
quit as the condition of his baud got worse and on the 13th or 14th 
of October, 1920, he was sent to the hospital and his hand was oper- 
ated upon. lie was discharged from the hospital on October 25. 1920, 
when lie again went to work for the defendant at light work. There 
is no testimony as to the wages he received on the work to which 
he returned after being discharged from the hospital, it also appears 
that the defendaut, after receiving notice of the injury, furnished 
medical service, medicines and supplies as provided by the Act. 

It appears, and we find as a fact, that the claimant's trouble 
was an infection of the hand at the point stated, and it was due to 
the jarring of the electric reamer, the jarring so bruised the under- 
lying Tissues that it caused the tissues to break down, infection 
resulting. We are, however, of the opinion and find as a fact that 
it was not the particular jarring the instant he first felt the nnmb- 
nesB was the whole cause of the condition which followed, but we 
are satisfied and find as a fact that it was the jarring he sustained 
at this particular time that unexpectedly and accidentally set a 
latent condition at the point of injury into an active state. 

Counsel for the defendant contends, however, that no accident 
has been proven as there is no evidence of any particular incident 
giving rise to the injurious results which can be properly classified 
as an accident within the meaning of the Act. 

It is true that we cannot point to one particular blow that caused 
the condition. We think, however, that we are not to he so tech- 
nically confined. 

"It is impracticable to hold that only such injuries 
as are suffered instantaneously and so testified to are 
violence to the physical structure of the body. All the 
facts and circumstances of the employment at or near 
the time when the accident is alleged to have happened 
must be considered." Otley v. E. H. Keefer & Sons. 2 
Oep. Reports 21<!7; 1 Board Decisions 195. 

It is also tine that there is no evidence that the claimant's con- 
dition was the result of an accidental incident aside from the usual 
and customary manner in winch he did his work. We find the 
following which negatives the thought that there must be: 



d:;yG00^Ic 



S17 

■ "There was no evidence of any slip, or wrench, or 
sudden jerk. It may be taken that the injury occurred 
while the man was engaged in his ordinary work, and 
in doing or trying to do the very thing which he meant 
to accomplish. There is evidence that the wheel was 
short of a spoke or handle, which may have made it 
more difficult to grasp than usual, and it was discover- 
ed afterwards that there was a leak in the kettle which 
let moisture into the vessel below, gluing its contents 
together, and so causing the lid to stick. I mention 
these circumstances merely for the purpose of putting 
them aside. It was, indeed, argued by the learned 
counsel for the appellant that if the mishap that befell 
Fenton was not of itself and apart from all other cir- 
cumstances an accident within the meaning of that 
word as used in the Act, then these two things — the 
loss of a spoke in the wheel and the leak in the kettle — 
introduced an element of accident — a fortuitous 
element it was called — which would satisfy the terms 
of the enactment, however narrowly it may be con- 
strued. In my opinion they do not affect the question 
in the least." 

"Yet the argument against the application of the Act 
is " * " That there is nothing accidental in the matter, 
as the man did what he intended to do. The fallacy 
of the argument lies in leaving out of account the 
miscalculation of forces, or inadvertance about them, 
which is the element of mischance, mishap, or misad- 
venture " * * " 

The word 'accident' is not a technical legal term with 
a clearly defined meaning. Speaking generally, but 
with reference to legal liabilities, an accident means 
any unintended and unexpected occurrence which pro- 
duces hurt or loss. But it is often used to denote any 
unintended and unexpected loss or hurt apart from its 
cause, and if the cause is not known the loss or hurt 
itself would certainly be called an accident. The word 
'accident' which is also often used to denote both the 
cause and the effect, no attempt being made to discrimin- 
ate between them * " * What is meant by personal 
injury by accident? Mr. Powell, in his very able argu- 
ment, contended that there must be — first, a personal 
injury; secondly, that there must be an accident caus- 
ing it; thirdly, that such accident must be the approxi- 
mate cause of the injury and that nothing more remote 
than the approximate cause can be properly taken into 
account. I cannot accede to this contention. Assum- 
ing that there most be something unintended and on- 
expected besides the personal injury sustained, or, in 



d:;yG00^Ic 



:S18 

other words, assuming that there must be a personal 
injury and an accident causing it, I cannot agree with 
Mr. Powell that this statute ought to be construed as 
if it were a policy of insurance against accident " " 
* * In this case the cause of the injury is known, and 
it is proved that the cause was an accident. It is not, 
therefore, necessary to consider whether the act applies 
to cases in which the cause of the injury is not known, 
or in which the only unforeseen occurrence is the 
personal injury itself. But if personal injury is caused 
to a workman, and it arises out of and in the course of 
an employment to which the Act applies, it appears to 
me that prima facie the Act entitles him to compen- 
sation, but that this inference may be displaced by 
proof that the injury is attributable to his own serious 
und wilful misconduct, or to some other cause which 
shows that the injury was not accidental." Fenton v. 
Thorley & Co., 5 W. C. C. 1. 

"If a workman in the reasonable performance of his 
duties sustains a physiological injury as the result 
of the work he is engaged in * * * this is acci- 
dental injury in the sense of the statute." Stewart v. 
Wilson's & Civile Coal Co., 5 F. 120, cited in White v. 
Sheepwash ; 3 B. W. C. C. 386. 

It is argued that the Legislature contemplated that 
the injury, in order to be compensible, must be caused 
by the application of some external force, the occur- 
rence of some unforseen or unexpected event, other 
than the injury itself, of which the employe himself is 
not the agent. The argument goes to the extent of 
maintaining that the accident must be in the external 
circumstances of the injury, the events leading np to 
it; that the word 'accident' or 'accidental' cannot be 
held to "apply to the injury itself, but must be confined 
to the source of the injury. This question has been 
;ibly and interestingly argued by the learned counsel 
for the appellant and the appellee and the English case 
of Fenton v. Thorley & Co., L. It. 1003, appealed cases 
443; 19 Law Times Rep. 048, and many other authori- 
ties have been cited. We do not deem it necessary, 
however, to discuss the question for the reason that 
we must accept it as settled by the decision "of the 
Supreme Court in Wolford r. C.eisel M. & 8. Co., 262 
Pa. 454 * * • There was in that case no sugges- 
tion of an external accident or .unusual incident in the 
operation in which the employe was engaged. The 
injury to the employe was the only unusual or unex- 
pected occurrence * * * Smith r. Pittsburgh Coal 
Co., 71 Supr. Ct. 325; Uept. Reports 1119 affirmed C. 
P. Allegheny Co., 3 Dept. Reports 1102 ; 2 Mackey 71. 



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319 

We are satisfied, relying upon these authorities aud the law as 
laid down in Smith v. Pittsburgh Coal Co., supra and the eases in 
line as to the aggravation of a pre-existing condition^ that the 
evidence establishes the fact that the claimant's disability was the 
result of an accident as contemplated by the Act. 

Counsel for the defendant has cited Marshall v. East Holleywell 
Co., and Oorley v. Owners of Bakeworth Colliery, 21 Times Law 
Reports, 494 in which it is held: 

"Injury to a coal miner's hand or knee, which is 
known as beat-hand or beat-knee and which is caused in 
the one case by the friction of a pick in the hand and in 
the other by the friction of the knee when the miner ia 
obliged to work kneeling, the injury being gradually 
caused by continued friction and not by any slip, 
wrench or strain, and it not being possible to point to 
any particular time as the cause of it or the time of 
its commencement, is not an injury by accident. 

and contends that these cases should control the instant case. We 
think not, inasmuch as we have found here that the jarring he 
sustained at the time he felt the numbness in his hand and arm 
unexpectedly and accidentally set a latent condition at the point 
of injury into an active state. This finding differentiates the in- 
stant case from the cases eited. 

At the hearing the claimant moved to amend the claim petition 
by changing the date of accident from September 18, 1920 to Sep- 
tember 20 and 21. Thereupon counsel for the defendant objected, 
stating: 

"This is objected to because the amendment is not 
offered in accordance with the rules of the Board and 
because it brings up a new accident on August 20, 1921 
instead of September 18." 

It is true that the rules of the Board provide that no amendment 
shall be made unless the parties agree or unless notice first be given 
to the opposite party, giving the opposite party time to answer. 
But it is evident from the testimony that this amendment does not 
materially affect the cause of the defendant. If it was such an 
amendment, we would disallow it, but it not materially affecting 
the cause of the defendant, we think it should be allowed and we 
will therefore overrule the motion and allow the amendment as of 
the date asked. 

We are of the opinion, replying upon the above, that this is a 
compensihle claim and in addition to the facts found above, we 
And as follows: 



d:;yG00^Ic 



1. That on August 20, 1920, the parties were bound by the pro- 
visions of the Workmen's Compensation Act of 1015 as amended 
by the Act of 1919 P. L. (142. 

2. That the claimant's wages at the time of the accident were 
in excess of $20 per week. 

It. That the injury suffered by the claimant was an injury by 
accident as contemplated by the said Act. 

i. That the defendant, after receiving notice of the accident, 
furnished inedical services, medicines and suplies as provided by 
the Act. 

CONCLUSIONS OP LAW. 

1 The parties were, at the time of the aeteident bound by the 
provisions of the Workmen's Compensation Act of 1915 us amended 
by the Act of 1919 T. L. G42. 

2. The claimant having suffered an injury by accident while in 
the course of his employment with the defendant with the defendant 
Company, and disability thereby resulting, he is entitled to compen- 
sation for the period of his disability as provided by the Act. We 
can only award for the total disability as there is not sufficient 
evidence to fix his partial disability; the amount of wages he earned 
on returning to work not being shown. 

3. Medical services of $10 procured by the claimant prior to 
September 8, 1920, must be paid by him as he gave no notice as 
required by the Act ( to the defendant. 

AWARD. 

There is accordingly awarded in favor of the claimant, Arthur 
Benson, and against the Jones & Laughlin Steel Co., defendant, 
compensation at the rate of 60% of ?20 per week or ?12 per week 
from and including September 1. 1920, to and including September 
SO. 1921), and from and including October 4, 1920, to and including 
October 24, 1920, a total compensation of $70.29 to be paid as pro- 
vided by the Act. 



Everett v. Hudson foal Co. 

Dcrlh — Not CJinnrcIci irith aocUtvnt. 

Where decedent had been suffering from neuritis for seme time prior to the 
iccidcnt, ami rife evidence shows (hut the neurit's Bet up by the accident nubs'ded 
io that at the etid of two or three weeks the decedent was in as good a condition 
is before (he accident, compensation will be disallowed. 



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Claimant represented by Roger J. Dever, Wilkes-Barre. 
Defendant represented by J. H. Torrey and E. T. Noble, Scranton. 

OPINION BY COMMISSIONER HO UCK— September 2, 1921. 

HEARING DE NOVO. 

This is an appeal by the claimant from the Referee's disallowance 
of compensation. The Board granted a hearing de novo and the tes- 
timony taken before the Referee was adopted as though taken before 
the Board and some additional testimony was offered on behalf of 
the claimant. The Board referred the record to Dr. J. B. Carnett in 
order to have the opinion of an expert on the medical aspects of the 
case. Dr. Carnett's report has been returned to the Board and is now 
part of the record. 

The evidence shows that Arthur Everett, the claimant's deceased 
husband, was in the employ of the defendant company on March 7, 
1 917. On that day, while in the course of his employment, his feet 
slipped from under him and he sat down forcibly on his bnttocks and 
lower back. Prior to the accident the decedent had been suffering 
from neuritis for some time. The injury snstained aggravated the 
disease and the decedent was incapacitated for a period of seven 
days., He returned to his employment on March 15 and worked un- 
til March 19 when he laid off again for a period of six days. He re- 
turned to work again on March 26 and worked regularly until the 
middle of November, 1917. At this time he was troubled with neu- 
ritis again and he finally died on March 8, 1918, one year after the 
accident, from multiple neuritis. 

At the time of the injury the decedent was treated by Dr. A. A. 
Barton who had also treated the decedent for some years prior to the 
accident. Dr. Barton testified that prior to the accident the deced- 
ent had ptosis and be went to the Wills Eye Hospital, Philadelphia. 
Dr. Barton further testified that the decedent suffered from periodic 
fit tacks of neuritis. After treatment the condition would clear up, 
and the decedent would then be all right until he would suffer from 
another attack. The condition, however, was continually getting 
worse and Dr. Barton expected death to result within a short time. 
Dr. Barton also said that the attack of neuritis caused by the injmy 
was the same as the other attacks, that it cleared up under treat- 
ment, and that the accident had nothing to do with the cause of 
death. The evidence of Dr. Barton is somewhat conflicting in differ- 
ent places which is one of the reasons the Board desired further 
medical testimony. 

At the hearing dr novo, the claimant called Dr. Daniel W. Collins 
as an expert. It was the opinion of Dr. Collins that the accident 



21 



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played some part in causing the death of Everett, but Dr. Collins' 
testimony is not at all convincing. 

On the other hand, Dr. Carnett's report shows that the multiple 
neuritis did not arise from the accident because the decedent was 
suffering from multiple neuritis before the accident, and also be- 
cause such an injury would not produce multiple neuritis. He also 
states that it would seem that the accident played only the most 
minor part in the course of the disease and can not logically be re- 
garded as of any importance in hastening the final termination. 
This opinion is supported by the evidence which shows that the 
neuritis set up by the accident subsided so that at the end of two or 
three weeks the decedent was in as good condition as before the 
accident. Taking into consideration all the evidence in the case 
the Board is convinced that the accident suffered by the decedent 
did not play any part in hastening hds death and that compensation 
should be disallowed. 

From all the evidence in the case, the Board makes the following 
findings of fact: 

FINDINGS OF FACT. 

1. That neither Arthur Everett, the decedent, nor the Hudson 
Goal Co., defendant, had waived the operation of the provisions of 
the Workmen's Compensation Act of 1915. 

2. That on March 1, 1917, Arthur Everett was employed by the 
defendant as a stationary engineer at a weekly wage of $15.50. 

3. That Arthur Everett, for sometime prior to March 7, 1917, 
suffered from neuritis. He suffered periodic attacks of the disease 
which would incapacitate him for a time and which would finally 
clear up under treatment. 

4. That on March 7, 1917, Arthur Everett, while in the course 
of his employment at the defendant's Pine Ridge colliery, met with 
an injury of the following character. His feet slipped out from 
under him and he sat down forcibly on his buttocks. 

5. That the injury sustained on March 7, 1917, set up an attack 
of neuritis, similar to previous attacks of the disease, which res- 
ponded to treatment and in three weeks Arthur Everett had re- 
covered from this attack and was in as good condition as he was 
before the injury, and he returned to work and continued at his em 
ployment until November 15, 1917. 

6. That in November, 1917, Arthur Everett suffered another 
attack of neuritis which compelled hdm to discontinue his work, and 
which finally resulted in his death on March 7, 1918. 

7. That the cause of the death of Arthur Everett was multiple 
neuritis due to natural causes. That the multiple neuritis was not : 



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323 

caused by, nor aggravated by the injury sustained on March 7, 1917. 
That there was casual connection between that injury and the 
decedent's death. 

8. That the decedent left to survive him his widow and two sons, 
Arthur Everett, born February 26, 1!>05, and Emerson Everett, bom 
July 28, 1908, all of whom were dependent upon him for support at 
the time of bis death. 

9. That the expenses of the last sickness and burial of the deced- 
ent were in excess of $100.00. 

From the foregoing findings of fact, the Board draws the follow- 
ing conclusions of law: 



CONCLUSIONS OF LAW. 

1. That both the decedent and the defendant were bound by the 
provisions of the Workmen's Compensation Act of 1915. 

2. That since the decedent died of multiple neuritis due to 
natural causes, his death not being caused by or hastened by any 
injury while in the course of his employment, his dependents are not 
entitled to compensation. 

DISALLOWANCE. 

Compensation is accordingly disallowed. 



Collins v. Hale & Kilburn. 

Disability— Not due to injury. 
When disability is due to the development of a const' tutional disorder, and tk>> 
injury of claim ant is not a factor in causing his disability, compensation will not 
be allowed. 

Claimant represented by Louis Levinson, Philadelphia. 
Defendant represented by Benjamin O. Frick, Philadelphia. 

OPINION BY COMMISSIONER HOUCK— September 2, 1921. 

This is an appeal by the claimant from the Referee's disallowance 
of compensation. On April 10, 1920, while in the course of his em- 
■ ployment, the claimant was walking across the floor of the defend- 
ant's factory when he tripped and fell, bruising his forehead. He 
continued to work until August 20, 1910. During this period of 
time the claimant had a small lump on bis forehead which broke out 
into an open sore about August 20. Other sores also appeared and 
on the day stated the claimant stopped work and was unable to 



324 

work thereafter on account of general weakness. Prior to April 10, 
the date of the accident, the claimant had sores on other parts of his 
body similar in nature to those that appeared on hJs forehead. The 
claimant obviously was suffering from some constitutional disorder 
«nd his disability was doe to the development of this disorder and 
not to the injury which lie received on April 10. The above state- 
ment are a summary of the findings of the Referee and we feel that 
they are supported by the evidence. 

At the request of the Board the claimant was examined by Dr. J. 
B. Carnett and Dr. Carnett's report is now before us as a part of 
the record. It is the opinion of Dr. Carnett that the claimant has 
been suffering from a general systemic infection, and Dr. Carnett 
re|H>rts that the medical aspects of the Referee's findings of fact 
are entirely justified and summarize the medical condition very 
clearly and concisely. 

After a careful review of all the evidence in the case the Board 
is convinced (hat the injury suffered by the claimant was not a 
factor in causing his disability, his disability being due to the devel- 
opment of a constitutional disorder. Accordingly, the Referee did 
not err in disallowiing compensation. 

The findings of fact and conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



Fortlk v. Treverton Colliery Co. 

HEARING DE NOVO 
Ittinnity—Xot remit of rmplovmcni. 

Whore claimant suffered a mild attack of gas poisoning while working on a culm 
bunk, from which be soon recovered, and later was committed to ail insane asylum 
suffering from senile dementia, no compensation w'll be awarded. 

Claimant represented by Roger J. Dever, Wilkes-Barre. 
Defendant represented by E. T. Noble, Scranton and Dr. R. 8. Wilder, 
New York. 

OPINION" BY M/.VCKEY, CHAIRMAN— September 10. 1921. 

John S. Foulk was employed by the defendant at its Treverton 
colliery as a slate picker. On November 4, lfllO he was engaged 
in putting out the fire an a burning culm- bank, and, while bo en- 
gaged, for about two hours he became sick and quit his work. ITe 
was assisted to the engine room where he soon revived and later 
went home by train, arriving there aboot noon. He complained of 
headache and did not eat much supper that night. There is no testi- 



325 

mony to the effect that he was unconscious or delirious or had any 
vomiting spells. 

The next day he returned to his usual occupation as a slate picker 
and remained on the job until November 15, 1919, when he was laid 
off. 

Sometime in November the claimant consulted his family 
physician, who found his patient complaining of headache, shortness 
of breath and somewhat confused mentally. The doctor testified 
that he had treated the claimant for a leaky valve of the heart for 
two years previous to November, 1919. 

In the latter part of November the claimant visited relatives in 
Philadelphia where he remained until the end of December; during 
this time he received no medical treatment. Upon his return home 
from Philadelphia his wife first noticed a change in his mental con- 
dition; he then showed signs of being forgetful and somewhat 
irritable, but able to be about unattended. His mental condition 
progressively grew worse and on April 9, 1920 he was examined by 
two physicians and declared mentally insane, upon whose recommend- 
ation he was legally committed to the Hospital for the insane at 
Danville, on April 20, 1920. 

After examination and observation in that institution his con- 
dition was diagnosed as senile psychosis or insanity of the aged. 

On the burning culm bank in question where Foulk was working 
on the morning of November 4, 1919, certain gases were formed from 
the burning of the coal, such as usually occurs whever coal burns. 
These gases are known as carbon monoxide and carbon dioxide, the 
former of which is poisonous and therefore dangerous to the health 
of any one inhaling it. 

Carbon monoxide is a colorless, tasteless gas, and. when in a state 
of diffusion, odorless, and is produced when carbon or coal is burned 
in a limited supply of air or oxygen. It enters the body by "being 
breathed into and by being absorbed by the blood. Its effects are 
to produce asphyxiation and oxygen starvation of the tissues. The 
breathing of pure air, or better still of oxygen usually expels the car- 
bon moxide from the blood in a few hours, although occasionally 
traces have been found in the blood after several days. 

The effects of carbon monoxide on the human system may be 
acute from breathing strongly contaminated air, or chronic from 
breathing slightly contaminated air from continued repeated ex- 
posure; i. p., from day to day. 

Acute poisoning, if mild, is exhibited by dull headache, flashes 
from the eyes, giddiness, ringing in the ears, nausea and fullness of 
the stomach and perhaps vomiting; if severe, the symptoms are: 
bluish discoloration* of the skin wheezy, jerky breathing, sometimes 



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326 

convulsions, more often paralysis, with weakness in all the extrem- 
ities, or confined to the lower extremities only, or to only a single 
group of muscles. The convulsive stage, which may be absent entire- 
ly is succeeded by the stage of asphyxia, with disturbances of motion 
and sensation, involuntary voiding of urine and feces, subnormal 
temperature, weak, slow and irregular pulse and loss of conscious- 
ness. 

In chronic poisoning, one of the earliest symptoms complained 
of by those exposed daily to small amounts of carbon monoxide is 
presistent and distressing headache, accompanied at times by nausea 
and vomiting ; attacks of giddiness are common ■ muscular weakness 
and lack of co-ordination increase and the individual becomes easily 
and rapidly fatigued. Derangements of digestion are common, nausea 
and vomiting being early symptoms. Carbon monoxide exercises a 
very serious effect upon the nervous mechanism of the heart the 
pulse becoming irregular in rhythm, sometimes slow, sometimes fast, 
and the slightest exertion markedly increases its irregularity. 
Anemia generally occurs after continued exposures. 

After continued repeated exposures, the effects of carbon monoxide 
are rarely manifested by nervous disorders. These are sometimes 
peripheral and other times central in character. Neuritis with 
paralysis or mental derangements, such as melancholia or halluci- 
nations, may occur. 

The testimony shows that Foulk suffered a mild attack of poison- 
ing after exposure to carbon monoxide emanating from the burning 
culm bank on November 4. 19!ft. The question at issue is whether or 
not the present condition of the claimant, who is now suffering from 
dementia, was in any way affected by this mild attack of poisoning 
incurred November 4, 1919. 

The record in the case shows that the claimant was examined by 
several experts in mental disease, who testified that they found him 
suffering from a chronic disease of the heart and arteries and senile 
dementia.— conditions resulting from retrograde physical change in- 
cident to age. 

The physicians further testified that in all cases of carbon mon- 
oxide poisoning where insanity has appeared, either immediately 
after exposure or later ; i. e., six or eight weeks after, the individual 
has been exposed to extremely large doses of carbon monoxide and 
suffered immediately from servere symptons of poisoning, vomiting, 
unconsciousness and delirium, indicating a toxic pshychosis; that the 
claimant suffered a mild attack of poisoning which was not severe 
enough to produce unconsciousness or delirium or vomiting and that 
he soon recovered : that the claimant's insanity was not in any way 
affected by such mild exposure, bnt was due to natural changes in- 
cident to his age. 



FINDINGS OF FACT. 

1. On November 4, 1919. John 8. Foulk suffered a mild attack of 
gas poisoning while working on a burning culm bank from which he 
soon recovered and returned to his usual occupation until discharged 
November 15, 1919. 

2. On April 20, 1920, Poulk was committed to the hospital for the 
insane at Danville, suffering from senile dementia or insanity of the 
aged. 

3. The senile dementia from which the claimant is now suffering 
was not caused or aggravated by inhaling gases from a burning culm 
bank on November 4, 1919, but resulted from natural causes. 

CONCLUSIONS OF LAW. 

Under the forgoing findings of fact, there is no compensation due 
the petitioner under the Workmen's Compensation Act of Pennsyl- 
vania. Compensation is accordingly disallowed. 



Strempnansky v. Jacoby. 

Commutation — To he made on basis of present status. 

The fact that an alien resilient petitioner for commutation intends becoming 
n non-resident alien does not deprive her of the full value o£ lior compensation. 
The commutation will be made on the basis of her present status, to-wit, a resident. 

Claimant represented by Louis M. Stiles, Philadelphia. 
Defendant represented by William M. Thompson, Philadelphia. 

OPINION BY COMMISSIONER JARRETT— September 30, 1921. 

Louisa Strempnansky presented the petition before us to have her 
share of the compensation awarded to her and her children commuted. 
The record shows that she is a citizen of Poland and is now and was 
at the time of her husband's death a resident of the City of Philadel- 
phia. She asks commutation for the purpose of returning with her 
three children to Poland, her native country. 

The insurance carrier contends that, it being her intention to be- 
come a non-resident alien and the Board having notice of this in- 
tended change of status, that if commutation is made, it should be 
made on the basis of her being a non-resident alien, to wit, two thirds 
of the compensation due her as a resident of the United States. 

We are of the opinion that this is not the intention of the law, as 
she is now a resident of the United States and as a resident is entitled 
to full compensation. By Section 316 of the Workmen's Compensa- 
tion Act of 1911, when the Board commutes, it must commute at the 



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value of the compensation at the time of commutation. .The value of 
compensation due her is full value us a resident of the United States. 

The Section cited expressly provides that the Board may commute 
when "the employe or dependent has removed or is about to remove 
from the United States." We therefore can see no merit to the con- 
tention that inasmuch as she Is about to remove from the United 
States and thus become a non-resident alien, the commutation be 
made on that basis. We hold that the commutation should be made 
on the basis of her present statue, to-wit, a resident. 

We have had the petitioner before us and it appearing to us that 
there is no probability of remarriage and that it wall be to the best 
interests of the petitioner that commutation be made and that it 
will not work undue expense or undue hardship on either party, it 
is hereby ordered that the compensation due her be commuted for 
the purpose asked. 



Gramm v. Zion Reformed Church. 

1WM if employment — Injury to pastor oj church. 

between the church and the pastor provides that the pastor 



will perform such duties as are usually expected of ministers and the const it 

of the church, and the pus tor is injured white making repairs to a wall brush. 

which kind of work was to be done by the janitor employed by the church, no 

compensation will be allowed. 

Claimant represented by Isaac M. Price, Philadelphia. 
Defendant represented by J. M. Bridenbaugh, Reading. 

OPINION BY MACKEY, CHAIRMAN— October 7, 1U2I. 

The claimant in this case is pastor of the Zion Reformed Church 
at Reading. The claimant lived in the parsonage of the said church. 
This dwelling house for the pastor is physically attached to the church 
and there the claimant resides with his family. The contract of 
hiring between the congregation and the pastor is in writing. The 
said contract contains the following statement: "The duties which 
will be expected of you are such which are usually expected of minis- 
ters of the word of God and the constitution of the Reformed Church 
in the United States." Upon the date of the accident to the claim- 
ant, he was using a wall brush, wiping off the walls of the parsonage. 
He found the utensil needed some repair and while attempting to 
improve its 'condition, struck a small chisel with a hammer, causing 
a piece of the material to strike him in the eye. 

It was also in evidence that a janitor was employed by the church 
to do this kind of work. The contract of hiring in this case being 
in evidence and providing for purely spiritual services on the part 

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329 

of the pastor and any possible inference that he was expected to per- 
form this kind of work being negatived by the fact that a janitor was 
employed by the church for this very purpose, we must find that when 
the claimant was engaged in the work which he has described, which 
resulted in his injury, he was not in the course of his employment 
for the defendant. See Russell v. St. John's Methodist Church, i 
Dept. Reports 1028, or Pennsylvania Workmen's Compensation De- 
cisions. Volume III, Page 146. 

The findings of fact and conclusions of law of the Referee are ac- 
cordingly reversed and compensation is disallowed. 



Anschau v. Nazareth Brick Co. 

Up— Lot* of use of. 

An employe, a carpenter, who Buffered an accident resulting in permanent 
ankylosis of the ankle, has suffered the loss of the use of that member. The mere 
fact that a workman with a seriously impaired member can still maintain his 
earning capacity has no real bearing upon the question us to whether or not Ji? 
has lost the use of that membeer. 

Claimant represented by Herbert F. Laub, Easton. 
Defendant represented by F. J. Curley, Reading. 

OPINION BY MACKEY, CHAIRMAN— October 7, 1921. 

The facts in this case as found by the Referee are as follows: 

The claimant was a carpenter and while in the employ of the de- 
fendant on April 1, 1920, met with an accident causing a fracture of 
the hones of lite outside of the left ankle and also a fracture of the 
astralagns, or ball of the ankle joint. He was a patient at St Luke's 
Hospital, Bethlehem, for sixteen days, under the care of Dr. W. L. 
Estes, Jr. 

The claimant suffered disability until July 8, 1920, when the de- 
fendant gave him light employment at which he continued until the 
following December, when on the 6th of that month the company's . 
operation closed for the winter. The claimant has not been at work 
since, nor had not up to the time of the Referee's last hearing on Feb- 
nary 25, 1921. 

Under the compensation agreement entered into between the 
parties, compensation was paid until September 25, 1920. 

On January 17, 1921, the defendant filed a petition to modify the 
said compensation agreement so that it might provide for partial 
instead of total disability. In answer to the said petition the claim- 
ant alleged the loss of the use ©f his left foot. 



880 

The Heferee quotes Dr. Estes' testimony as follows: "The forward 
and backward motions of the ankle were destroyed entirely. There 
is between one- third and one half lateral motion available. The 
ankle is considerably thickened and broadened anteriorly and pos- 
teriorly. There is no callous around the ankle joint. The injury is 
permanent; that is, the ankylosis of the ankle is permanent. The 
claimant can do some character of carpenter work. He will be 
handicapped in climbing ladders and scaffolding." 

The Heferee might have added the testimony of Dr. James, as 
follows: 

"Q. Were the bones in his foot smashed? 
A. Yes, sir, compound fracture. 

Q. It is permanent? 
A. Yes, sir. 

Q. I understood you to say to Mr. Curley that he 
would be unable to stand on it any length of time? 
A. Yes, sir, his left foot seems to be permanently dis- 
abled. 

Q. You feel that he has lost the use of his foot? 
A. Yes, air." 

We have constantly held that what constitutes the loss of the use 
of a member is determined very largely upon the nature of the em- 
ploye's work, and the mere fact that a workman with a seriously im 
paired member can still maintain his earning capacity has no real 
Iwaring upon the question as to whether or not he has lost the use of 
that member, for undoubtedly a carpenter can stand at his bench 
upon one foot and earn as much money as though he were resting 
the weight of his body upon both feet, although his one foot may 
have been amputated or so seriously crippled that no one would deny 
that he had lost its use. The same may be true of a one-eyed man. 
In certain occupations a one-handed man might earn as much at the 
same trade as he had been able to earn with two hands, nevertheless, 
judging from the standard of a normal member in all these instances, 
the workmen in question might well have been said to have lost the 
use of some particular member. Thus the testimony in this case leads 
us to believe that this carpenter, the claimant in this case, has lost 
the use of his left foot and should be compensated under Section 
306-(C.) from the 10th day after his accident, for 150 weeks at $12 
per week, less compensation that has already been paid by the de- 
fendant. 

It is needless to quote the cases that sustain this position, but a 
reference to Cliovic i\ Pittsburgh Crucible Steel Co., II Mackey 66, 
and cases therein quoted will be sufficient to sustain this position. 

1*1 the compensatiop agreement be -modified accordingly, 



331 
Fillip v. Wm. Cramp & Sons Ship & Engine Building Co. 

Eye — LoM o) B.ie of — Vn/it for specialized work. 

Where an employe, a specialized workman, suffers on injury to one of his eyes 
so that the eye is unfit for that particular work, he suffered the loss of the use 

Claimant represented by George C. Klauder, Philadelphia. 
Defendant represented by Louis Wagner, and Richard A. Smith, 
Philadelphia. 

OPINION BY MACKEY, CHAIRMAN— October 7. 1921. 

This is an appeal from the Referee's declination to review a com- 
pensation agreement for the purpose of reviving its terms and modify- 
ing them to provide for the loss of the use of the petitioner's eye. 

The history of the case is as follows: 

The petitioner was an employe of The Wm. Cramp & Sons Ship & 
Engine Building Co. in the capacity of a first-class machinist. On 
August 18, 1020, he was injured while engaged in the performance of 
his dut'es in superintending the installation and participating in the 
erection of machinery in ships that were under construction at the 
shops of the defendant, and particularly at that time he was driving 
holes according to the measurements indicated by a scale upon a 
blueprint. This highly important work required very accurate eye- 
sight and as a matter of fact involved a very delicate use of normal 
eyes, involving the measurement down to 2/1000ths of an inch with 
what is called a ny.cromeasure or gauge. Therefore, it is clear from 
the testimony that the man was engaged in a highly specialized un- 
dertaking, involving skill, accuracy and clearness of vision. While 
thus engaged, he was struck in the eye by a piece of pipe and the right 
eye was contused. 

Recognizing the fact that the man had suffered an accident in the 
course of his employment, the employer joined with him in a com- 
pensation agreement. Then on November 5, 1920, believing that his 
disability had ceased, the claimant signed a receipt, which as a matter 
of fact, and under the decisions of our Courts, only temporarily re- 
lieves the defendant of its obligation to pay compensation, should 
there be a revival of disability due to that particular accident. The 
defendant furnished certain employment to the claimant, not how- 
ever of the same kind in which he was engaged at the time of his 
injury, but he received the same wages as he had been enjoying at the 
time of the accident. Several months elapsed and then he withdrew 
from the employment of the defendant because he chose to go out 
ffith certain, strikers,, 

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332 

On June 10, 1921 he filed ii petition for the review of the compensa- 
tion agreement, which the Referee dismissed without prejudice, thus 
by this decision protecting the rights of the claimant should further 
disability develop because of the original accident, and indicating 
that it was his opinion that at the present time there was not suf- 
ficient evidence to establish the fact that the claimant had lost the 
use of this particular eye as the result of the accident in question. 

In this we differ with the Referee. The testimony indicates that 
there is some light left in the eye. Should this highly specialized 
expert machinist choose to become a common laborer, using the pick 
and the shovel, or the axe and the crowliar, the impairment in UCb 
eye, perhaps, would not diminish his earning capacity, but the evi- 
dence clearly indicates that the eye is destroyed for the purpose of 
fine visual undertaking*), involving the important work of placing 
structural parts in sh'i]>s according to microscopic measurements of 
scales included in blueprints and other scientific plans. 

We believe that our compensation Jaw grew out of the recognition 
of the necessity for remedial legislation, and we do not believe that 
the Legislature intended to send men from highly specialized and im 
portant scientific work into lower grade occupations with impaired 
. members, and say to them, that since in the lower grade of work or 
more menial occupation in which they are then engaged, they are 
earning as much money as before the accident, that they are to be 
denied compensation for the loss of the use of that member which ban 
been seriously impaired. 

Section 306 — (E) represents the determination of tlie legislature 
that when a man loses the use of one of the members of bis body, he 
is to lie indemnified as far as possible for that loss by the payment of 
compensation for a certain mumber of weeks at a certain rate, regard- 
less of whether or not his real earning capacity has been diminished. 
It would be well in this connection to review some of the cases 
which have been before the Board in which the Courts have adopted 
the same view on this subject as ours, notably Pater v. Superior Steel 
Co.. II Mackey 27, Masethr. Hubbard, 1 Dept. Reports 1282; Popobies 
r. Consolidated Expanded Metal Co., .1 Dept. Reports 929 or II Penna. 
Workmen's Compensation Board Decisions 149; Wassick v. McKecs 
|H>rt Tin I'late Co., 1 Mackey 91. In this latter case the Court said: 
"The Act is a highly remedial piece of legislation and 
should lie liberally construed. The evidence does show 
that the claimant might lie able to use his left hand for 
some purposes. The occupation of the claimant was one 
that required substantially the norma) use of his hands, 
and the same use would lie required in any other work 
for which he would lie fitted. The evidence shows that 
the claimant could not perform such work. He was, 
therefore, permanently disabled from following his usual 
occupation or any other of a similar nature." 



The Superior Court took the same view in Ghovic v. Pittsburgh 
Crucible Steel Co.. II Mackey fill. The Court there said: 

"Whether a man has lost the use of a hand depends 
upon whether or not the hand has become useless in any 
employment for which that particular man is mentally 
and physically qualified." 

It remains for us, therefore, to study the testimony to determine 
whether or not the facts in this case bring it within the principles 
laid down in the cases we have just quoted as to our line of duty 
where men have lost the use of a member as far as their particular 
trade or life-Jong occupation is concerned. As to this question, we 
find the testimony of the claimant and two specialists called by him, 
as well, in fact, of the specialist testifying for the defendant, that 
as far as the former occupation of the claimant is concerned, the eye 
in question has been destroyed for all practical purposes. It is fur- 
ther conceded that should the claimant lose his good eye, he would 
be absolutely unable to proceed with highly specialized work or any 
work involving very keen eyesight. 

We determine, therefore, as a fact that the claimant has lo«t the 
use of this eye. It is accordingly ordered that the compensation a- 
greement be revived as of November 2, 1920 and the agreement modi- 
fied to provide for payment by the defendant of compensation at the 
rate of $12 per week for 125 weeks from August 28, 1920, the de- 
fendant to be given credit for compensation already paid ot: ac- 
count of the agreement hereinbefore referred to. 



Piseatelli p. Bradford Briok & Tile O 

Fr active and procedure. 

Where, after an appeal has been taken from the IWeree, an nicreemeiit for !!•.« 
payment of compensation is filed, which Agreement is approved by the Board, the 
pi'oecedinBH on the appeal will be set aside. 

ORDER BY THE BO AR1>— October 11, 1921. 

Now, October 11, 1921, this case having settled by the filing of 
an agreement for the payment of compensation, the proceedings 
under claim petition No. 12168 are set aside and the said agreement 
approved. 



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334 

Bastia v. Delaware, Lackawanna & Western B. R. Co. 

Evidence — Positive evidence nut required, 

Where nobody saw the accident nor could tell how the same occurred, but it could 
not be disputed that decedent met with same while on his employer's premises 
by the operation of the employer's buisneas, and decedent's presence on the prem- 
ises was required by the nature of his employment, there is a fair presumption 
that the accident ocnured while decedent was in the course of his employment. 

Claimant represented by Roger J. Dever, Wilkes-Barre. 
Defendant represented by Elmer D. Adair, Scranton. 

OPINION BY COMMISSIONER HOUCK— October 14, 1921. 

The claimant's deceased son was employed by the defendant com- 
pany as a slate picker. On October 27, 1920, at about 10:50 A. M. 
the chuies in the colliery at which he worked became clogged and the 
decedent was one of two boys sent to open them. One boy was to 
open the rock chute and the decedent waB to open the coal chnte. At 
11:10 A, M. the breaker shut down for the noonday lunch. The de- 
cedent had not yet" returned from opening the chute and the picker 
boss went to look for him. He found his dead body wrapped around 
a slowly turning elevator shaft located about twenty-ftve feet from 
the place where the chute was clogged.' Nobody saw the accident 
and nobody could tell how the decedent got into the shaft. The Re- 
feree states that he visited the scene of the accident and after a care- 
ful investigation was unable to arrive at any definite conclusion as 
to the manner in which the decedent conld have been caught by the 
revolving shaft. The Referee found as a fact that the decedent was 
killed while in the conrse of employment, being caught in some 
unknown manner by a revolving shaft while on his way from the 
head of the breaker to the coal chute in obedience to orders from his 
foreman. After a careful review of all the evidence in the case the 
Board is of the opinion that the Referee did not err in awarding com- 
pensation. 

There is a fair presumption, under the evidence, that the accident 
occurred while in the course of employment, and there is no evidence 
to overcome that presumption. Besides, it cannot be disputed that 
the decedent met with the accident while on his employer's premises 
by the operation of the emplyer's business thereon, and the decedent's 
presence on the premises was required by the nature of his employ- 
ment. Accordingly, the case falls squarely within the terms of the 
Workmen's Compensation Act. This case cannot be distinguished 
from the case of Granville v. Scranton Coal Company, 76 Pa. Su- 
perior Court, 335. 

The findings of fact and conclusions of law of the Referee are af- 
firmed, and the appeal is dismissed. 

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Geery v. Standard Refractories Co. 

Death — Accident not contributing to. 

Where there is no evidence that the accident contributed in the sliKhtest degree 
to the death of the deceased, nor caused a more rapid development of the cancerous 
condition, which existed before the injury, compensation will be. denied. 

Claimant represented by W. H. Detrick, Hollidaysburg. 
Defendant represented by John J. Ziegler, Philadelphia. 

OPINION BY MACKEY, CHAIRMAN— October 20, 1921 

HEARING DE NOVO. 

The deceased, Harry Geery, was the husband of the claimant, who 
is seeking to recover compensation from the defendant because of 
the death of her said husband. 

On January 29, 1920, while in the course of his employment, the 
deceased slipped from a ladder and fell into a pit a distance of about 
five feet, stocking his left side against the side of the pit, and thereby 
receiving a slight injury in the region of the kidneys. Upon rescuing 
himself from the pit the deceased met a fellow-workman, to whom he 
told the story of the accident. It is in evidence that he also reported 
the same at the superintendent's office of the defendant, and then re- 
paired to his own home. 

During the afternoon of the same day upon which the accident 
happened the deceased returned to the dispensary of the defendant 
and advised the superintendent, as well as the nurse in charge, of 
the incident above described. He declined, however, to allow the 
nurse to examine his back. Upon the following day the nurse visited 
him at his home, and when an examination was then allowed by the 
deceased, the said nurse located some red marks over the region of 
the kidney, and applied some bandages thereto. Home remedies 
were adopted by the claimant, and on February 1st the deceased re- 
turned to work and worked at his occupation continuously until the 
first day of the following April. 

During this interval the deceased had called upon the nurse several 
times and made complaints concerning headache, a disinclination to 
eat and an inability to sleep. The claimant waa very positive in her 
testimony that during this time her husband had suffered pain. Ha 
was seen by no doctor until March 10, when he consulted a physician 
of his own choice and complained of pain in the right leg. His ail- 
ment was diagnosed as rheumatism together with some disturbance 
of the stomach. This physician saw the deceased again on March 29. 
He complained then of pain in the back and further disturbance in 



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the stomach. This physician suspected that the deceased was suffer 
ing from a displaced kidney but an X-ray photograph on April 9th 
negatived any such suggestion and furnished no evidence of any 
fracture in the bony structure at any point. 

After this examination on the date just above mentioned, the de- 
ceased returned to his own home where he remained until April 17, 
when he returned to the hospital and began to develop hemorrageg 
and experienced vomiting of blood. An analysis of his urine dis- 
closed castes, with a trace of albumen, all of which indicated to the 
examiner that the deceased was suffering with Bright's disease. 

A diagnosis of cancer of the stomach was then made by the physi- 
cians. Oeery died on June 3, 1920. An autopsy was held upon the 
day of the death of the deceased with the following disclosures : 

Marked thickening of the cardiac end of the stomach, involving 
two-thirds of the area and extending from the lesser curvature down 
to the greater curvature, and involving one-third of the total stomach 
area. There was also an area of ulceration. The stomach was 
bound down by dense adhesions to the surrounding structures. The 
mesenteric lymph nodes were considerably enlarged, especially in the 
region of the stomach. The kidneys were normal in position, show- 
ing, however, evidence of chronic inflamation. The spleen was en- 
larged. The liver was -contracted and showed fatty changes in its 
structures. The pancreas was bound down by adhesions. The gall 
bladder was extended and its duct thickened and encased in a mass 
of adhesions. 

The diagnosis from the autopsy findings were: Carcinoma of the 
stomach, healed tuberculosis, ulcerations of the lungs, metastatic 
growths in the lymph nodes of the mesentary and mediastinum; 
chronic nephritis; serous pleuritis on one side and serofibrinous on 
the other. 

A thorough study of all of the medical testimony in this case deve- 
lops in our mind the following observations: 

The outstanding facts involved in the history of the deceased's 
accident and ailments have developed the history of a man beyond 
middle life, in apparently good health, who sustained a fall of not 
over five feet on January 29, 1920, which developed evidence of a 
bruise on the back over the region of the left kidney. The deceased 
walked home and returned to his place of employment on the same 
afternoon. He was away from work two and a half days, and then 
worked steadily for two months prior to April 1. He died on the 
3rd day of June, 1920. 

The medical testimony in this case is purely of a theoretical nature, 
but the conclusions reached by those upon whose testimony the Re- 
feree orginally granted compensation must fall before the ascertained 
facts. 

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337 

The condition of the kidneys as found at the autopsy indicates 
ordinary medical nephritis of both kidneys due to some general con- 
stitutional cause rather than a local injury of one kidney. This 
statement is in accordance with the expressed opinion of the oniy 
physician who examined the urine of the deceased, and of the medical 
expert who performed the autopsy. 

Doctor Brumbaugh, to whom we have just referred, could not find 
any evidence of the kidney having been torn loose. In fact the de- 
gree of violence of the injury as described in the testimony would 
seem entirely inadequate to tear a kidney from its attachment. 

We find, therefore, that the accident was not responsible for the 
kidney condition disclosed at the autopsy. 

The only question left is to determine whether or not the evidence 
will justify the conclusion that Ueery's death was hastened by the 
accident which he suffered. 

As to this phase of the case, it is unquestionably established in 
the testimony — and we so find — that the deceased was suffering with 
carcinoma of the stomach, which caused origin, or, in other words, 
was not caused by the accident. It existed pror to the accident and 
it only remains for us to determine whether or not this man, suffering 
both with nephritis and carcinoma of the stomach, was hastened to 
a death, inevitable in any event at a very early time. 

In view of the extensive pathological changes found at the autopsy, 
the conclusion is irresistible that without any accident the deceased 
would have begun to experience pain from the cancerous condition on 
or about the time the accident actually occurred. It is also clear 
from the medical testimony which agrees on the absence of any 
cause for kidney pain, that the deceased, in the latter stages of his 
disease, exeperienced pain from his cancer and not from the kidney. 
The accident must be eliminated as an active cause in hastening the 
death of the deceased. 

We cannot adopt the testimony of any of the witnesses that would 
indicate any tremendous pain experienced by the deceased immediat- 
ly after the accident or within a few days thereafter. The adoption 
of this testimony is made impossible by the undeniable facts that the 
deceased fell but a very short distance that unaided he extricated 
himself from this situation; that he walked after the injury; and he 
returned to the defendant's place of busiut-*; on the same day of the 
injury and declined to allow a nurse to make examination ; that he 
remained from work but two and a half days; that he failed to men- 
tion the accident to his physician in March: and finally that he con- 
tinned to work daily for two months after the accident. There is 
no evidence to justify a finding that the accident in the slighest con- 
tributed to the death of the deceased. > T o one can present any re- 



gle 



liable proof that this slight injury caused more rapid development 
of the cancerous condition than the deceased would otherwise have 
experienced. 

In view of the fact that the presence of the cancer before the in- 
jury has been absolutely established we will not attach any impor- 
tance to unprovable theories as to whether or not a comparatively 
mild injury not applied directly to the seat of disease could or did 
hasten the death of the deceased. 

Compensation must accordingly be denied. 



Liberato, et. al. v. Royer & Herr. 

Dependents— X on-resident alien parents — Not entitled to compensation. 



Even though the evidence is sufficient to warrant- an award on the ground that 
the parents were dependent on the son for support. Section 310 of the Workmen's 
Compensation Act of 1!>15 bars non-resident alien parents from recovering com- 
pensation. 

Appellee represented by F. J. Curley, Reading. 
Appellant represented by John C. Nissley and Giovani Di Santo, 
Harris burg. 

OPINION BY COMMISSIONER JARRETT— October 20. 

The claimants have filed a petition claiming compensation for the 
death of their son. They were at the time of their son's death citi- 
zens and residents of Italy. The insurance carrier contends that 
they are not entitled to compensation as they are barred by Section 
310 of the Workmen's Compensation Act of 1915 which, in part, is 
as follows: 

"Alien widowers, parents, brothers and sisters, not 
residents of the United States, shall not be entitled to 
compensation. 

Cminwel for the claimants contends that they are not barred as 
the treaty existing between the United States of America and Italy 
concluded on February 26, 1871, and amended February 25. 1913 
fixes the rights of the claimants and that thiR part of the Act con- 
travenes the treaty and therefore must fall. The party of the treaty 
which is cited as applicable is as follows: 

. "The citizens of each of the high contracting parties 
shall receive in the states and territories of the other 
ihe most constant security and protection for their per- 
sons and property and for tbeir rights, including that 
form of protection granted by any state or national law 
which established a civil responsibility for injuries or 



or 



for death caused by negligence or fault and gives to 
relatives or heirs of the injured party a right of action, 
which right shall not be restricted on account of the 
nationality of said relatives or heirs and shall enjoy in 
this respect the same rights and prvileges as are or 
shall be granted to nationals provided that they submit 
themselves to the conditions imposed on the latter." 

By opinion filed by the Board on June 11, 1920, on a hearing 
de novo, which was held at Harrisburg on March 8, l!t20, it was in- 
timated that the claim was compensable and attention was directed 
to what was said by Kunkle P. J. in the same case, cited in 28 Pist. 
Rep. 670. There the late Jndge Knnkel said : 

"If the treaty provides the same rights and remedies 
for them (meaning Italian parents residents of Italy) 
as are given to citizen parents, their exclusion from the 
benefits of the Act would be unconstitutional and in- 
valid." 

and we also directed attention to De Biasi v. Normandy Water Co., 
228 Fed. 234-235, (holding with reference to the New Jersey Act) that 
it was invalid as the Italian parents as contravening the Treaty 
existing between Italy and the United States of America. Since 
the publication of the opinion the same question went up to the 
Court of Common pleas of Luzerne county and the Court in an 
opinion by Fuller P. J. held that Italian pareuts, non-resident aliens, 
are barred and that the Act in this particular is not unconstitutional 
as contravening the treaty. 

We therefore are constrained to follow this decision. 

We are satisfied that the evidence is sufficient to warrant an award 
as it shows conclusively that the parents were dependent on the 
deceased employe for support but inasmuch as it has been held that 
they are barred by Section 310 xupra, we must disallow compensation 

The petition is accordingly dismissed. 



Filipiele v. State Workmen's Insurance Fund. 

Arm — f.oii of «»e 0/ — Where claimant qualified an laborer. 

Whore data out is only menially and physically qualified to work as laborer, 
and the condition of his arm in such thnt he is no longer ohle to use the arm it 
performing work required of a Inhorer, he in entitled to pom pen sal ion for the lo*s 
of the Dae of his arm. 

Appellee represented by George C. Klauder, Philadelphia. 
Appellant represented by Samuel I. Spyker, Huntingdon. 

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OPINION BY COMMISSIONER JARRETT— October 28, 1921. 

The findings of fact, conclusion of law and award of the Referee 
are sustained and tbe appeal is dismissed. 

The claimant, so far as the testimony shows, is only "mentally and 
physically qualified" to work as a laborer. Tbe testimony is to the 
effect, as found by the Referee, that the condition of bis right arm is 
such that be is no longer able to use the arm to perform the work 
required of a laborer. It is therefore the lose of the use of an arm. 
See Chovie v. Pittsburgh C. S. Co., 71 Supr. Ct. 350. 



Davis v. Pennsylvania K. R. Co. 

Eye — hot* of use of — &t/*temw condition before injury. 

Where 1111 injur} - to claimant's eye aggruvated the underlying Rystemjc conditio 1 ! 
existing at the time of the injury, so lis to hasten the progress of the systemic 
condition at the point of injury to the extent of causing the permanent losn o* 
tile use of the eye, compensation will be awarded for its loss. 

Appellant represented by II. Z. Maxwell, Philadelphia. 
Appellee represented by Walter J. Henry, Altoona. 

OPINION BY COMMISSIONER JARRETT— November 2, 1921. 

HEARING BE NOVO. 

FINDINGS OF FACT. 

1. The parties were at the time of the accident bound by the pro- 
visions of the Workmen's Compensation Act of 1915. 

2. On April 23, 1919, tbe claimant was employed by the defendant 
as a boiler-maker helper in the boiler shop of the defendant at 
Altoona. and received an average weekly wage of $16.61. 

3. On April 23, 1919, tbe claimant, while in the course of his em- 
ployment with the defendant, met with an accident, to-wit, that while 
backing out rivets, the claimant doing the stricking and a fellow 
employe holding a punch, particles of metal or steel flew and lodged 
in the claimant's right eye, puncturing the cornea. The claimant, 
upon receiving the injury, was immediately obliged to cease work. 
1'pon the happening of the accident a fellow employe removed one 
piece of the metal or steel from the claimant's eye and the claimant 
was then sent to tbe defendant company's physician who removed 
another piece of meta! or steel from the injured eye. He was then 
sent to the Wills Eye Hospital, Philadelphia, on April 26, 1919, when 
another piece of metal was removed The claimant then returned 



341 

and endeavored to resume work, attempting on several different oc- 
casions but alter working a short time on each occasion, was 
obliged, on account of the pain in his injured eye, to cease work. The 
injured eye has, since the date of said accident, given him consider- 
able trouble and pain and the condition of the eye has progressed 
to such a point that he has permanently lost the use of said eye. 
The claimant was, at the time of the accident, afflicted with a sys- 
temic condition and we find as a fact that the injury sustained by 
the claimant as related aggravated the underlying systemic condi- 
tion so as to hasten the progress of the systemic condition at the 
point of injury to the extent that it has caused the permanent loss 
of the use of the claimant's right eye. 

CONCLUSIONS OF LAW. 

1. At the time of the accident the parties were bound by the pro- 
visions of the Workmen's Compensation Act of 1915. 

2. The injury by accident received by the claimant on April 23, 
1019, was such violence to the physical structure of the body as con 
templated by Section 301 of Article III of the Workmen's Compen- 
sation Act of 1915, and so aggravated the systemic condition with 
which the claimant was afflicted as to cause the loss of the use of 
the claimant's right eye. 

3. The accident having occurred while in the course of the clai- 
mant's employment with and upon the premises of the defendant, 
and having resulted in the loss of the use of the claimant's right eye, 
he is entitled to compensation as provided by the Workmen's Com- 
pensation Act of 1915. 

AWARD. 

Compensation is accordingly awarded against the defendant, the 
Pennsylvania R. K. Company, and in favor of the said claimant, 
Charles L. Davis, as follows: 50% of ?16.61 or $8.30J^ per week for 
a period of 125 weeks beginning May 7, 1919, making atotal sum of 
*1038.12. 

Costs: To I>rs. Emil Reith and J. W. Steitael, the sum of |5. each, 
which is to he paid by the said defendant. 



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Clark v. Bell Hotel Corp. 

Dependency — ifitwr child firing Kith grandparent. 
The son of a widow, who wai killed in the course of her employment, in entitled 
to compensation even though the child was lining with and being cared for by u 
grandparent. The right of a child to compensation, there being no widow or 
widower, is absolute and without condition, and the dependency of such child i* 
conclusively presumed. 

Claimant represented by Isaac M. Price, Philadelphia. 
Defendant represented by Frank E. Ambler, Philadelphia. 

OPINION BY COMMISSIONER JARRETT— November 2, 1921. 

This case was submitted to the Referee npon agreed facts below 
set out and upon the facts set out in the claim petition; the agreed 
facts being as follows: 

"Counsel for the claimant and counsel for the defen- 
dant agree npon the following facts ; that in accordance 
with the birth certificate offered in evidence. Elmer 
Forrest Clark was born of John E. Clark and Inez Clark 
in the city of Philadelphia on March 4, 1908; that John 
Gordan Clark, Jr., was horn of John O. Clark and Inez 
Clark on August 2, 1909, and are therefore the legiti- 
mate children of John Clark and Inez Clark ; that John 
Clark and Inez Clark had separated over ten years dur- 
ing which time of separation Elmer Clark lived with his 
mother and was maintained and supported by her ; that 
John Clark, Jr., lived with his father and was maintain- 
ed and supported by him up until November 1919, when 
he died and thereafter John Clark was taken into the 
family of his grandmother of his father and up to the 
time of the death of Inez Clark, was maintained and 
supported entirely by the grandmother. The mother 
at no time since the death of her husband, John Clark, 
8r., had ever contributed or cared for John Clark, Jr. in 
any way." 

It is further agreed that as before stated, that both 
of these claimaints are the natural born children of 
the claimant (decedent), Inez Bertha Clark, the de- 
ceased mother, which raises the presumption of their de- 
pendency, hut in accordance with all the facts in the 
rase, that one of the claimants, John G. Clark, Jr. was 
never supported or maintained by the deceased mother, 
the question for the Referee is as to whether or not he 
was a dependent, if he was then the compensation is to 
bo paid to the Guardian of both the claimants; if John 
G. Clark, was not a dependent, then the compensation is 
to be paid wholly to the Guardian of Elmer F. Clark," 

The claim petition shows tha.t the decedent died May 7, 1921, 
i;. ^aoyGoOgle 



The Referee held that John Gordan Clark, Jr. was not entitled to 
compensation inasmuch as he was not dependent upon his mother, 
the deceased, for support at the time of her death. 

There was some testimony taken to the effect that John Gordan 
Clark, Jr. was not supported by his mother, the deceased. This 
testimony we deem immaterial. 

The case therefore being submitted on agreed facts and we hold 
ing that the testimony taken is immaterial and being of the opinion 
that the Referee has erred in not including John Gordan Clark, Jr., 
we will set aside the findings of fact, conclusions of law and award 
of the Referee. 

It has been decided by the Board that the right of a child or child- 
ren to compensation, there being no widow or widower, is absolute 
and without condition and the dependency of such child or children 
is conclusively presumed. See Strapon v. Pittsburgh Steel Co., 2 
Board Decisions 450; Baldoff v. University of Pittsburgh, 7 Dept. 
Reports 66. We will therefore award compensation to both children. 

FINDINGS OF FACT, 

1. That on May 7. 1921 Inez Bertha Clark, the decedent, was in 
the employ of the defendent as an elevator operator. 

2. That on May 7, 1921, neither the decedent nor the defendant 
had Bled with the Workmen's Compensation Bureau, nor served upon 
the other notice of their rejection of Article III of the Workmen's 
Compensation Act of 1915 and its amendments, in accordance with 
the provisions thereof. 

3. That on May 7, 1921, and for some time previous thereto, the 
decedent received an average weekly wage of ($15.00). 

4. That on May 7, 1921, while in the course of her employment 
with the defendant at the Continental Hotel located at Ninth and 
Chestnut streets, Philadelphia, on attempting to stop an elevator, 
she fell down the shaft and received such injuries that death in- 
stantly followed, of which the defendant had due notice. 

5. That the decedent left to survive her two children, Elmer 
Forrest Clark, born in Philadelphia, March 4, 1908 and John Gordan 
Clark, Jr., born in Philadelphia, August 2, 1909, who were at the 
time of her death, as provided by the Workmen's Compensation Act 
of 1915 and its amendments, dependent npon her for support. 

6. That the expense of the decedent's last sickness and burial 
were in excess of $100, no part of which has been paid by the defend- 
ant. 

7. That on May 7, 1921, the Commercial Casualty Co. was the 
compensation carrier for the defendant and has agreed to pay for 



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the defendant company to the claimants, any compensation that 
would he found to be due arising out of this accident. 

CONCLUSIONS OF LAW. 

1. That ou May 7, 1921 neither the decedent nor the defendant 
had filed with the Workmen's Compensation Bureau, nor served 
upon the other notice of their rejection of Article III of the Work- 
men's Compensation Act of 1915 and its amendments, in accordance 
with the provisions thereof. 

2. The said decedent having left to survive her, two children, 
Elmer Forrest Clark and John Gordan Clark, Jr., both being under 
the age of sixteen years and being dependent upon her for support aa 
provided by the Workmen's Compensation Act of 1915 and its amend- 
ments, are entitled to compensation. The award follows. 



Auacardo v. Walker Foundry Co. 

Hearing de novo — Whvn not granted. 

Whore claimant is represented by counsel, ami claimant and bis witnesses ar* 
hoard, anil no request is made for a continuance in order to introduce other 
evidence, but after hearing and disallowance of compensation an application for it 
hearing de noro for the purpose o£ introducing other eviikin'e, which is not after 
discovered, will be refuged. 

Claimant represented by Leonard H. Pasqualicchio, Erie, 
Defendant represented by Charles M. Smith, Pittsburgh. 

OPINION BY COMMISSIONER JARKETT— November 4, 1921. 

The Referee disallowed com pen sat ion on the grounds that the claim- 
ant did not meet the burden of proof; that the hernia from which he 
suffered was due to an accident while in the course of his employ- 
ment. The claimant appeals and says that the evidence warranted 
an award and then ask for a hearing dv novo on the grounds that he 
has more evidence to introduce by witnesses who did not appear at 
the hearing before the Referee. 

We have carefully looked into this record and it shows that the 
claimant was represented by counsel and the claimant and witnesses 
heard. He had ample opportunity to present his case. If there were 
witnesses that he desired heard who did not appear after being notified 
to appear, the claimant should have asked for a continuance. If the 
additional evidence which the claimant has to offer was after-dis- 
covered evidence, it would be oherwise, but under the circumstances, 
he having been represented by counsel, asked for no continuance for 

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343 

the purpose of putting in this testimony and the testimony of record 
warranting the Referee's findings and disallowance of compensation, 
we think it wholly proper to sustain the Referee and dismiss the 
appeal. 

The findings of fact, conclusions of law and disallowance of com- 
pensation are accordingly sustained and the appeal is dismissed. 



McCarthy v. Hotel Henry Co. 

Burial erpenxi-i — Amount to be awarded. 

The most tbut can be awarded for the Inst sickness uud burial of a deceased 
employe is $100, and where there has been an award of $100 for funeral expenses 
and in addition thereto the medical, surgical anil hospital bill incurred, it will be 

Claimant represented by Louis Little, Pittsburgh.- 
Defendant represented by W. O. Brown, Pittsburgh, 

OPINION BY COMMISSIONER JARBETT— November 10, 1921. 

After a careful examination of the testimoney, we are satisfied that 
it amply supports the Referee's decision wherein he finds that the 
deceased employe's death was due to an accident suffered while in 
the course of* his employment 

The Referee has awarded $100 for funeral expenses and in ad- 
dition thereto the "medical, hospital and surgical bill incurred.'' 
Here, we think the Referee erred as the most that could be awarded 
would be $100 for expenses of the last sickness and burial. See 
Kopchak v. Lincoln Gas Coal Co., 7 l>ept. Reports, 707. 

The award is hereby modified accordingly; that is, the award is to 
read "The defendant is also directed to pay the sum of $100, expenses 
of the last sickness and burial. 

With this modification the findings of fact, conclusions of law and 
award of the Referee are sustained and the appeal is dismissed. 



Hall v. American International Shipbuilding Corp. 

Hernia — Remit of injur// — Aggravation of previous physical condition. 



Where an employe slipped while at work sustaining contusions of the groin and 
buck, and a traumatic hernia, which accident also aggravated and accelerated his 
diabitic and nrteria sclerotic conditions, he will be awarded compensiLtion for 
permanent disability, when it is shown that lie is unable to work. 

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Claimant represented by George C. Klauder, Philadelphia. 
Defendent represented by Thomas G. Smith, Philadelphia. 

OPINION BY MACKEY, CHAIRMAN— November 18, 1921. 

HEARING DE NOVO. 

FINDINGS OP FACT. 

1. The claimant. George M. Hall, was an employe of the American 
International Shipbuilding Corp., the defendant, on March 20, 1920, 
as a signalman. 

2. Upon that day neither claimant nor defendant had filed with 
the Workmen's Compensation Bureau, nor served upon the other, 
notice of rejection of Article III of the Workmen's Compensation 
Act of 1915, and its amendments, in accordance with the provisions 
thereof. 

3. The claimant's average weekly wage was f33 on March 20, 1920, 
and for some time previous thereto. 

4. On said date, March 20, 1020, while in the course of his em- 
ployment with the defendant on Way No. 13, in their yard at Hog 
Island, Philadelphia, when stepping up on a crane platform, his right 
foot slipped, resulting in injury to his right groin and back, of which 
the defendant had due notice ; that during the afternoon of March 20. 
1920, the pain in his right groin and back increased to such an ex- 
tent that he consulted Dr. Paul, who made an examination and who 
found that the claimant was suffering from contusions of the right 
groin and back, a traumatic hernia, shock and exhaustion, coupled 
with giddiness and nausea: that on March 21, 1920, an examination 
showed the presence of diabetes and arterio sclerosis, and that his 
urine contained about two percent (2%) of sugar; that a later ex- 
amination showed that the diabetes and arterio sclerosis were be- 
coming progressively worse; that the percentage of sugar in the 
urine had increased; that on March 20, 1020, he suffered from a 
slight cerebral hemorrhage in addition to the traumatic hernia ; that 
the accident aggravated and accelerated his diabetic and arterio 
sclerotic conditions and that at the time of the hearing neurasthenia 
had also developed; that on March 22, 1920, after procuring a truss, 
at the suggestion of Br. Paul, the claimant returned to work at his 
usual occupation hut owing to his condition he was not able to per- 
form his duties and was given lighter work, which he performed 
until June 16. 1920, when he was laid off on account of reductions 
in the force, at which time his disability had not ceased; that after 
considerable effort on his part, he was reinstated on July 10. 1920, 

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347 

at which time he was given light work at the reduced wage of $23.76 
per week ; that he continued performing light duties until November 
19, 1920, when he was again laid off, at which time his disability 
had not ceased ; that from November 19, 1920, up until the time of the 
hearing he performed no work owing to his disability. 

As to the latter conclusion or finding of fact in respect to the dis- 
ability of the claimant, the Board has gone to great length to hear 
competent medical testimony. We have had the claimant before us 
under observation several times and are clear in our conclusions 
that he is now suffering total disability because of the accident 
which he suffered in the course of his employment for the defendant. 
We therefore make the following award under Article III, Section 
306: The award follows. 



Fay v. Pennsylvania E. R, Co. 

A railroad Ragman is entitled to compensation for injuries received when He 
was struck by an engine of the defendant while asleep on one of the railroad tracts. 
The mere fact that the olaiman'. succumbed to fatigue and momentarily dropp' d 
ittJeep when at hit work was not mien a voluntary break in the continuity of tiw 
day** employment as to take him oat of the course of employment. 

Course of c<nployment — Employe injured while sleeping. 
Claimant not represented. 
Defendant represented by H. Z. Maxwell, Philadelphia. 

OPINION BY MACKEY, OHA I RMAN— November 18, 1921. 

HEARING DE A'CM'O. 

Raymond Fay, the claimant, was employed by the defendant, the 
Pennsylvania R. R. Co. as a flagman, on August 22, 1920, at an aver- 
age weekly wage in excess of ?20. Upon the aforesaid date the claim- 
ant sustained injuries by accident, in the course erf the employment, to 
bis right leg and hip, which totally disabled him from the date of the 
accident until December 1, 1920. 

The accident occurred at the "E*F." tower near the West 
Elizabeth station at 12:25 P.M. on August 22, 1920. The 
claimant's duties as a flagman took him upon a train go- 
ing north; lie performed his duties in this capacity at 
this point. For some reason, which he cannot explain, 
except that he was exhausted and physically unable to 
resist sleep because of overwork, he missed Warding his 
train and. as it drew away from him he sat down on the 
railroad track and fell asleep. He was in this position 
not over ten minutes when he was struck by another 
train of the defendant, being operated by the defendant 
for its own particular business. 



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CONCLUSIONS OF LAW. 

The above facts present a ease cf an employe in (lie course of his 
employment injured by the operation of the employer's Ima'new upon 
the latter's premises. The mere fact that the claimant succumbed to 
fatigue and momentarily dropped asleep while at hi* work was not 
such a voluntary break in the continuity of the day's employment as 
to take him out of the course of his employment. See Dzikowski v. 
Superior Steel Co., Supreme Court of Pennsylvania, I Mackey IW, 
259 Pa. 578, 

AWARD. 

The Compensation Board of Pennsylvania accordingly awards to 
Raymond Fay, claimant, against the rcmutylvuirla K. K. ■ <>.. defend- 
ant, compensation at the rate of 00% of f'2ii or #12 per week for a 
period beginning September 1, 1020, and ending December 1. 1920, a 
period of 13 weeks or the sum of $156, 



Ironside v. N. B. Slack & Son. 



Tuhcrculoait -Resulting ) 


rout inhalation of paltimou 


■ mil. 




Whore the claimant, an employe of 


a fiamge, inhaled ikiIsouoi 


in f n Fin 


rs from tli» 


nhniiHt of automobiles, which led lo 


tuberculosis, he is entitled 


1 to TO 


miieiiHiitior. 


mm the inhalation of imtsonoue fumes i 


9 at) nocidentnl injury. 







Claimant represented by George B. Johnson, West Chester. 
Defendant represented by E. B. Brandriff, Philadelphia. 

OPINION BY COMMISSIONER HOUCK— November 18, 1021. 

The claimant in this case is suffering from tuberculosis and is tot- 
ally disabled. He is claiming compensation on the ground that his 
Jiroat and lungs were injured by the inhalation of poisonous gases 
.vhicli gave rise to the development of tuberculosis. 

The claimant was employed by the defendant as an automobile 
repairman. The garage in which he worked was very poorly ventilat- 
ed and several witnesses testified that the gas fumes in the garage 
often affected he men who worked here so that they were compelled 
ro go out into the air for relief, and would have to quit work until 
i:he effect would pass away. The claimant had been affected by the 
fumes on several occasions prior to October, 1020, and he suffered 
from irritation of the throat. Some day in October automobiles 
,-ame into the garage which were using a new gas made from tar ami 
after the claimant had inhaled the fumes from the exhaust pipes ol 
tliese machines, his condition became worse. He suffered from los< 

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of voice. He continued to work, however, until January, 1921, by 
which time his condition was so bad that he was unable to work any 
longer and his physician sent him to the Rush Hospital. On this 
state of facts the Referee awarded compensation and the defendant 
has appealed on the ground that the Referee's findings are not war- 
ranted by the facts. After a careful review of all the evidence in the 
case the Board is of the opinion that the Referee did not err in award- 
ing compensation. 

The inhalation of poisonous fumes is an accidental injury, and, 
since it led to tuherculosis which has cawed total disability, the claim- 
ant is entitled to compensation. Kerrigan v. American International 
Shipbuilding Cor. 5 Pa. Workmen's Compensation Board, 85; Hodg- 
kins r. Aetna Chemical Co. 2 Mackey. 143. 

The findings of facts and conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



Milioiimrirz v. H. H. itcCloskey, Jr., Inc. 

Partial disability — Duly of claimant to establish earning pmrer. 

Where the claimant series compensation for partial disability the burden is npon 
him to show what that partial disability is, and the claimant should either go to 
work to establish his earning power or come on with proof as to what he is able 
to do, and the wages paid for snob work. 

Claimant represented by Louis M. Stiles, Philadelphia. 
Defendant represented by John J. Ziegler, Jr., Philadelphia. 

OPINION BY COMMISSIONER J A RRETT— November 23, 1921. 

On March .t. 1921 Referee C. W. Bowler made an order suspending 
compensation as of December 18, 1920, until such time that the claim- 
ant would prove that his disability had not ceased or changed in 
extent. On April 27, 1921, the claimant filed a petition for the re- 
instatement of compensation on the grounds that "disability has 
greatly increased as a result of the injury. He is a nervous wreck 
suffering from neurosis; left leg much worse, suffering continual 
pain, unable to bend ankle and place foot on ground in natural man- 
ner. Further as a result of injury, his spnie is affected and shows 
"■■oirip mental deterioration. Eye sight is very bad. As a result of 
injury he is unable to work and unable to get work owing to his 
condition. Allege these facts from medical and physical exam- 
ination." 

An answer was filed by the insurance carrier intervening defend- 
ant, denying the allegations and setting up that "the claimant has 
recovered from his injuries sufficiently to return to work; that the 



350 

claimant refuses to work and that compensation has been suspended 
by the Referee." 

The Referee, after a hearing, has refused to reinstate compensation 
and has ordered that the claimant return to work so as to establish 
whether or not he ie entitled to compensation for partial disability. 

We have carefully pone over the testimony and we are sa'isfied 
that there is no other conclusion at which the Referee could have 
arrived as the testimony clearly shows that the claimant is not totally 
disabled and if partial disability exists, the burden is upon the claim- 
ant to show what that partial disability is. This should be proved in 
one of two ways— let the claimant go to work so as to establish his 
earning power or come on with proof as to what work, in his opinion, 
he is able to do. showing the wages paid for such work. In either 
case if ihe Board is satisfied that it represents the full physical ability 
of the claimant and work that he is able to do, it would then be an 
easy matter for us to fix the partial disability and the compensation 
due for that partial disability. 

The findings of fact, conclusions of law and order of the Referee 
are snstaJned and the appeal is dismissed. 



Ocepeok v. Westmoreland Coal Co. 

Partial dUnbility—Incr 

Where the claimant asks fur com pens a lion on account of partial disability and 
the evidence shows that he lias returned to work and is earning more money than 
he did before the accident, compensation will be disallowed. 

Claimant represented by H. H. Fisher, Greensbarg. 
Defendant represented by Paul H. Gaither, Greensbnrg. 

OPINION BY COMMISSIONER JARRETT— November 23, 1921. 

This case was heard before Referee Snyder who awarded compensa- 
tion for partial disability. The defendant appealed on the ground 
that compensation should have been disallowed as the claimant's 
earning power was greater after the accident than before. The de- 
fendant company offered an affidavit of the claimant's wages before 
the accident and after the accident, which was not admitted as evid- 
ence by the Referee, hut the parties now have agreed that the affidavit 
showing the earnings of the claimant before and after the accident be 
made part of the record. We therefore take from this admission that 
the parties impliedly consent that the Board dispose of the matter a<* 
if originally before it. 



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We will therefore aet aside the findings of facts, conclusions of law 
and award of the Heferee and will substitute the following: 

FINDINGS OF FACT. 

The petitioner, John Ocepek, was injured while in the employ of 
the defendant, Westmoreland Coal Co. A compensation agreement 
was entered into in consequence of the said injury, and approved by 
the Workmen's Compensation Board on August 7, 1919. Compensa- 
tion was regularly paid under said agreement up to November 28, 
' 1919, and the injured workman signed a final receipt in which it was 
stated that he had recovered the functional uses of injured member 
and reported for work. Answer filed by defendant denying all allega- 
tions of claimant's petition on March 25, 1921. 

On December 6, 1919, the claimant signed a final receipt for compen 
sation np to November 28, 1919; that he returned to work for the 
defendant company on December 1, 1919 as a watchman, part of hie 
duties being cleaning and filling lamps and handling dynamite. His 
average daily wage at the time he was injured was J4.74 and his 
average daily wage after he returned to work after the accident was 
$4.82. 

The evidence showing a greater earning power after the accident 
than before the accident, the claimant is not entitled to compensation 
for partial disability and his petition is therefore dismissed. 



Napierkoskie, et. al. v. Kingston-Coal Co. 

Physical condition — Prc-esisliiifi, aiiflraralrd or accelerated. 

Where a p re- e* in tine; condition is aggravated or accelerated because of an 
accident in the course of empoyment, it is compensable, but the burden of proof 
is placed upon the claimant. 

Claimant represented by Roger J. Dever, Wilkes-Barre. 
Defendant represented by F. E. Zerbey, Kingston. 

OPINION BY MACKEY, CHAIRMAN— December 12, 1921. 

Theodore Napierkoskie, the husband of the claimant, Stella Napier- 
koskie, was an employe of the Kingston Coal Co., and on the 17th of 
June, 1921, was prosecuting the work of the defendant in one of its 
mines located in the State of Pennsylvania. He was engaged in as- 
sisting three other persons in placing in position a mine prop. This 
exertion was the usual and ordinary work in which he was general- 
ly engaged and there is no evidence of any extraordinary effort at 
that particular time. However, he immediately complained of pains 

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:tr»2 

in his abdomen. There is also evidence that be had suffered like 
pains the same morning before leaving his home for his work, and it 
is also in the case that one year previous to the date in question the 
deceased suffered a like attack.' His ailments from time to time bad 
been diagnosed as acute appendicitis. On June 18, 1921, the day 
following this particular complaint, the deceased worked until 3:45 
in the afternoon, but complained of acute pain all during the day 
and upon leaving the mines on that day he complained to the super- 
intendent as to his pains and maintained that he had contracted 
these pains while at work. There is no question but that the work- 
man was suffering from time to time with very acute and aggravated 
pains because of this condition of the appendix. This is as far as 
the proof in this case goes! We do not wish to disturb the many de- 
cisions of this Board, as well as the other jurisdictions, that a pre- 
existing condition of appendicitis can be aggravated or accelerated, 
because of an accident in the course of employment, and become 
compensable, but in this particular case the burden of proving a 
complete case being placed by the, law upon the claimant, it is im- 
possible for her to meet it, and we have no competent evidence to 
establish the necessary proposition that there was an accident at 
this particular time which aggravated the pre-existing condition of 
appendicitis and either directly caused or hastened the death of the 
deceased workman. We must accordingly disallow compensation. 



Koftestreva v. Kingston Coal Co. 

Death — Jl fattened or ctitited by accident. 

The burden nf proof that death was cither hastened or mused by the accident 
is upon tlte claimant, and where the evidence is not sufficient to ennble the Board 
to determine that such was the caw, compensation will be disallowed. 

Claimant represented by Roger J. Pever, WilkesBarrc. 
Defendant represented by F, E. Zerbey, Kingston. 

OPINION BY MACKEY, CHAIRMAN— December 12, 1921. 

According to the facts that have been submitted to the Board as 
agreed upon between the parties. John Kollestreva, Ihe husband of 
the claimant, Anna Kollestreva, was in the employ of the Kingston 
Coal Co, at its mine at Kingston, as a miner, and on the 7th day of 
February, 1321, was injured in the course of his employment in pro- 
scenting the business of the defendant, upon the premises of the lat 
ten lie met with an accident which culminated in the execution 



353 

of Compensation Agreement No. 1080198. Compensation was paid 
thereunder until May 31, 1921, when the defendant filed a petition 
asking the Board to terminate the said agreement on the ground 
that the employe had fully recovered. This petition in still pending 
before the Board, no action having been taken for the reason that 
the employe died on July 6, 1921, in the City Hospital of Wilkes- 
Barre, with cancer of the stomach. 

While it has been frequently successfully contended that cancer 
has been produced by traumatic influences and furthermore it is a 
well determined matter of law that an aggravation of a pre-existing 
condition or disease through an accident, is compensable, and very 
frequently it can be proved by direct chain of evidence that a man 
is suffering with a disease which inevitably will be fatal, neverthe- 
less through an accident death has been hastened, — in all these 
cases compensation has been granted, and such compensation is 
based upon good and sound principles of law. In this particular 
case, however, the claimant cannot successfully meet the burden of 
proof which the law places upon her and the agreement of facts is 
devoid of a complete chain of evidence which would induce the Boaid 
to determine that death was either hastened or caused in this caw 
by the accident which we have above described. Therefore, without 
disturbing the principles of law above recited, we find that we are 
compelled to disallow compensation in this case because of the 
reasons just above recited. 



Washington v. Quaker City Rubber Co. 

Insane person — Committee designated to receive oompeneation du4. 



The Board will direct the committee designated to receive compensation in case 
of nn insane person to make payment to the wife of said inannc person. 

Claimant represented by Isaac M. Price, Philadelphia. 
Defendant represented by S. J. Backer,, Philadelphia. 

OPINION BY MACKEY, CHAIRMAN— December 16. 192], 

FINDINGS OF FACT. 

After hearing the testimony in support of the petition, the Work- 
men's Compensation Board of Pennsylvania finds that Margaret 
Washington, now living at #28 N. Carlisle Street, fourteen years ago, 
in State of Virginia, entered into the marriage relationship with one 
William Washington, who was injured while in the employ of the 
Quaker Citv Rubber Co.. and is now confined in a public institution 

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354 

at Byberry, under tlie auspices of the city of Philadelphia, and is 
reputed to be insane. 

We find that the relationship between the said William Washington 
and the said Margaret Washington was inaugurated in terms of the 
present tense by (he said William Washington inviting the said 
Margaret Washington to come and live with him as man and wife, 
and that this request was acceded to by the said Margaret Washington 
in direct and positive language that she would consent to enter into 
such relationship. For three years they lived together as man and 
wife in the State of Virginia, held each other out as husband ami 
wife, were known to people in the community as such. They then 
moved to Pennsylvania, where they continued this relationship for 
eleven years. In churches and in various other places where people 
with whom they associated met in large groups they held each other 
out as man and wife, were known as husband and wife, and, as a 
matter of fact, no question was ever raised about their marital status ; 
all of which clearly indicates that they considered themselves husband 
and wife, and they each performed the respective functions of man 
and wife. 

William Washington accepted all the duties and responsibilities 
of a husband, and contributed to the support and welfare of the said 
Margaret Washington. At the time of the accident which became 
the subject of a compensation agreement through which a certain 
sum of money has now devolved, she was dependent upon him. liv- 
ing with him in the city of Philadelphia, and had a right to expect 
support at his hands, and, as a matter of fact, did. 

We therefore find that at the time of the accident on the 28th of 
August, 1018, Margaret Washington and William Washington were 
living together as man and wife, and in consequence of cohabitation 
and reputation of marriage were legally husband and wife under the 
laws of Pennsylvania ; and the said Margaret Washington is en- 
titled to receive support at his hands. 

We also find that on September !i0, 1921, this Board appointed 
Julia C. Huffington under the terms of the Act of Assembly of the 
Commonwealth of Pennsylvania entitled "An amendment to the 
Workmen's Compensation Act of 1915" authorizing the Workmen's 
Compensation Board to designate a proper person to receive com- 
pensation in the case of an insane person. 

We also find that there is the sum of $1172.40 now in the hands 
of this .committee in consequence of the said order, which sum is 
duly protected by bond. 



The Workmen's Compensation Board therefore direct that the 
said committee, from the date of this order until otherwise ordered, 



855 

pay to the said Margaret Washington the sum each week of ?10; 
and the said committee is also authorized to pay any legitimate bills 
that have been contracted in consequence of the accident to the said 
William Washington, and the board and maintenance due to the 
Raid Margaret Washington made necessary because of the said acci- 
dent. 



Bass v, Barrett Co. 

Commutation — Granted for the purpose of returning to native land. 

Commutation in sufficient amount to enable claimant to return to her native 
land, where she might enjoy happier conditions with her relatives and frienda 
will be granted, but the Board will not give claimant the opportunity to possibly 
wastp her compensation money In some unfortunate investment or excessive ex- 

ORDER BY THE BOARD— Dec. 20, 1921. 

Mrs. Bass was granted an order for commutation for $500 to en- 
able her to return to her native home in Europe. Subsequent to the 
order she refused to accept the same and insisted upon receiving the 
full amount of compensation due her in weekly installments. The 
Board will not grant her demand. The Board was agreeable to her 
petition that she return to her native land, believing that she might 
enjoy happier conditions with her relatives and friends, but will 
not give her the opportunity to possibly waste her compensation 
money in some unfortunate investment or some excessive expend- 
itures inspired by the enthusiasm of her home-coming. Her compen- 
sation must be distributed as the law intended it. 

The order for commutation "w hereby rescinded. 



Sheppard v. Locust Mountain Coal Co. 

Evidence — Hearsay atone not sufficient. 

Where all the evidence relied upon by the claimant to establish the happening ot 
an accident is hearsay, no compensation will be allowed. 

Claimant represented by Roger J. Dever, Wilkes-Barre. 
Defendant represented by H. J. Nesbitt, Pittsburgh. 

OPINION BY COMMISSIONER HOUCK— Dec. 22, 1921. 

This is an appeal by the claimant from the Referee's disallowance 
of compensation. The claimant alleges that her husband met with 

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an accident on April 20, 1920, by falling from a "lokie", striking the 
back of his head and dying on April 28, 1920. The Referee disal- 
lowed compensation on the ground that the happening of the acci- 
dent was not established by the evidence, and the Referee states 
that all the testimony on this point is hearsay and not supported 
by corroborating circumstances. 

We have read the evidence in this case with a great deal of care. 
It shows that the claimant's husband died on April 28, 1920, of lobar 
pneumonia. It also shows that the claimant stated to certain per- 
sons, after he reached home, that he had met with some accident. 
Is'o witness was produced who saw any accident and no witness 
was oroduced to whom the deceased had complained of having been 
injured within a short time of the happening of the alleged accident. 

W. B. Welles, the decedent's superior, was called as a witness on 
behalf of the claimant. Mr. Welles stated very frankly that he made 
a thorough investigation of the case in order to see if there was any 
possible way in which the claimant could obtain compensation, and 
yet, all that Mr. WelleR could discover was that the decedent had 
made some vague remark about April SMi about having almost met 
with an accident. 

There is na doubt at all that all the evidence relied upon by the 
claimant to establish the happening of n*i accident is hearsay, and 
even the statements of the decedent introduced in evidence and made 
by him a considerable time after the happening of the alleged acci- 
dent are very vague and uncertain. Further than this, even assum- 
ing that the decedent did meet with an accident, there is no per 
suasive evidence that his death was due in any way to any injury. 
Under the evidence but one course was open to the Referee and that 
was to disallow compensation. The evidence clearly does not 
warrant an award. 

The findings of fact and conclusions of law of the Referee arc 
aflirmed. and the appeal is dismissed. 



Donolme p. Fletcher Works. 

Compensation— If accident in cnute of ditahility claimant i* entitled to. 

Where claimant as the result of n fall sustained concussion of the brain, whim 
concussion is the cause of his present totnl disability, he is entitled to compensa- 
tion, notwithstanding be was suffering from arterio-selerosis at the time of the fa'l. 

Claimant represented by George C. Klauder, Philadelphia. 
Defendant represented by Benjamin O. Frick, Philadelphia. 



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OPINION BY COMMISSIONER HOUCK— December 22, 1921. 

This is an appeal by tin; defendant from the Referee's award of 
compensation. The facts briefly stated are that the claimant, a man 
sixty-six years of age, was Buttering from arteriosclerosis. On June 
14, 1!)2», while in the course of his employment, he was seated on a 
channel Iron a distance of twenty-seven indies from the floor. He 
suddenly fell backward.-; from the channel iron, striking his head on 
the brick Hour. The blow caused a concussion of the brain which 
lias resulted in general exhaustion and condition of mental con- 
fusion. There i« no doubt that the claimant is now totally dis- 
abled. 

The basis of the appeal is that the Referee's findings of fact are 
not supported by competent evidence. The defendant also raises 
the point that the claimant's fail was caused by a disease. 

We have read the evidence in the case carefully. There. is con- 
siderable medical testimony, the Referee having'appointed an im- 
partial physician who was examined at length by both parties. Un- 
doiihledly there is sufficient competent evidence in the case to justi- 
fy the Referee's findings and the cause of the fall of the claimant is 
immaterial. There is evidence which shows that the claimant fell 
to the floor, that as a result of the fall be sustained concussion of 
the brain and that this concussion of the brain is the cause of his 
present total disability. Accordingly, the Referee did not err in 
awarding compensation. 

The findings of fact and conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



Riser v. Colonial Life Insurance Co. 

fompenx'ttion— Settlement 6tf widow with wrongdoer does not bar her right to 
compensation. 

Settlement between the widow and wrongdoer does not bar her right to com- 
pensating, but the employer ia entitled to deduct from the amount of compensation 
the money which was received by way of settlement, and if the employer ia com- 
pelled to pay n greater sum by way of compensation be has bis remedy by pro- 
ceeding against the wrongdoer for any damage Buffered by the employer in excess 
of the amount paid by way of settlement. 

Claimant represented by Hell & Well, Greenshurg. 
Defendant represented by N. C. Fraley, Ilttsburgh. 

OPINION BY COMMISSIONER J ARRETT— December 22, 1921. 

This case was heard before Referee Christ ley, who awarded com- 
pensation. 

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The history of the case is well wet out in Hie Referee's second find- 
ing of fact, which is as follows : 

"Second: That the deceased, George A. Riser, was 
employed by the defendant, The Colonial Life Insurance 
(Jo. of New Jersey as a collector and solicitor at an 
average weekly wage in excess of $20 per week and 
while so employed on December 2S, 11120, left the office 
of the company in Greensburg in company with one, C. 
M. Knhn who was also an agent of the defendant com- 
pany, in a taxicah and went to Jamison Mine Xo. 1, 
Westmoreland county, where lie was to do some can- 
vassing. The deceased had one collection to unk" :it 
Winthrop and was going from YVinthrop to Greenwald. 
He alighted from the taxi cab at Jamison Xo. 1 anil just 
at the time that he alighted a Maxwell furniture truck 
drove up and the driver inquired the way to Greenwald. 
('. M. Kulni, who accompanied the deceased to Jamison 
No. 1, said to the deceased, George A. Riser, "There is 
your chance for a ride." The deceased stepped on the 
truck and was riding on the right running board and 
after riding some little distance on the road leading from 
Jamison No. 1 to Greenwald, the driver of the said truck, 
in order to avoid a rut, drove too close to the creek and 
the truck went over an embankment turning on its 
side inflicting injuries on the deceased which resulted 
in his death a few minutes later. He left to Biirvive 
him a widow, the claimant, with whom he resided and 
and who was dependent upon him for support at the 
time of his death and one chil 1, Alfred A. Riser, born 
March 5, liMfi" and no other dependents. The burial 
expenses of the deceased exceeded the sum of J100, no 
part of which has been paid by the defendant com- 
pany. Win. H. Maxwell who owns the truck on which 
the deceased was riding when killed visited the claim- 
ant, Mrs. Susie M. Riser, some time later and effected 
a settlement with her for the sum of *200 which was 
paid her and a release taken." 

The Referee's second conclusion of law is as follows: 

"Second: The deceased having sustained injuries 
by accident in the course of his employment on Decem- 
ber 28, 1020, which resulted in his death the same day 
and having left to survive him a widow, the claimant, 
Mrs. Susie M. Riser and one child, Alfred A. Riser, 
who were dependent upon him for support at the time 
of his death, they are entitled to recover compensation 
as provided in Section .'{07 of the Workmen's Compen- 
sation Act of lillo, as amended. The defendant, how- 
ever, to have credit in the sum of $200 as contemplated 
by Section 81!) the same being the amount paid claim 
ant by Win. II. Maxwell, a third party, under settle- 
ment effected with the claimant." 

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The insurance carrier intervening defendant has appealed, uileg- 
ng error of law as follows: 

"That the Referee erred in his second conclusion of 
law that the widow of the deceased employe was en- 
titled to recover compensation when he found as a fact 
that Win. H. Maxwell, the owner of the truck "upon 
which the deceased was killed, effected a settlement with 
the widow for the sum of $'2(Ht which was paid her and 
a release taken," 

'•This act of the widow in making a settlement and 
releasing the alleged wrong doer without the knowledge 
of the employer, deprived the employer of the right of 
subrogation against the third party " 

The question therefore is: Did the widow by her act in releasing 
the ''alleged wrong doer" bar her right to compensation. 

The Nebraska Act on the right of subrogation is in substance the 
same as our Act and the Supreme Court of Nebraska in Hugh 
Murphy Const. Co. v. Serek, 177 N. W. Rep. 747 W. C. L. J. Vol. 6, 
194, sustaining the lower Court, which held: 

"The court further finds that, by executing to said 
Omaha & Council Bluffs Rwy. Co. the release pleaded 
by the above named plaintiff and appellant, Hugh 
Murphy Construction Co., the defendant and appellee, 
Henry Herok did not in any manner give up, release, 
or relinquish lis right to compensation, hut that he 
cniy gave up, released, or relinquished such right as 
something by way of damages from said street rail- 
way company over and above any amount for which the 
employer, the above-named plaintiff and appellant, 
Hugh Murphy Const motion Co., should be liable for 
or pay to its employe, the above named defendant and 
appellee. Henry Sertk, as compenation for his said in- 
juries in accordance with the terms and provisions of 
said Workmen's Compensation Law." 

Said: ". . . . When the accident happened the employ- 
er became liable to the employe for compensation to 
be paid according to the provisions of the statute. The 
employer also was subrogated to the right to recover 
from the negligent 'bird party the full amount of dam- 
ages suffered by the injured workman. The amount 
which the employe wa-- entitled to receive from the 
employer was in a huge degree fixed by statute, but 
the amount which the employer might in turn recover 
front the wrongdoer is to be determined either by settle- 
ment satisfactory to the three part-Set concerned, or 
by the ordinary process of litigation in an action for 
damages. The wrongdoer must take notice of the 
rights of all, and cannot by a settlement with the in- 
jured party increa-e the burden of the innocent employ- 



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360 

pp. TIip par irs concerned arc equal in the rye of the 
law, ;iii<I tin' courts will not suffer one to profit at the 
expense of cither of the others. To allow the workman 
to sc't.c with the street railway company for an unfair 
in 1 an inadequate sum won! 1 compel (he employer to he 
mulcted to an additional extent; therefore, when the 
'tree' railway company settled with the injured work- 
man, it tock the risk i;f having to pay additional dam- 
ages to the employer ii' the settlement was not fair, ade- 
iruale and satisfactory. If such settlement wai satis- 
factory to it. the employer is entitled 'o deduct from 
the amount of coin] eusalion the money which the in- 
jured workman lias already received by way of settle- 
ment. If, however, the settlement was inadequate or 
obtained by fraud or mistake, and the employer is com- ■ 
pel led to pay a greater sum by way of compensation, 
the employer stili has his remedy by proceeding against 
the tieet railway company for any damages suffered 
hy the workman in excess of the amount paid by way 
of settlement " 

Vie are satisfied that our Act should be interpreted likewise. 
The findings of fact, conclusions of law and order of the Referee 
ire sustained and the appeal is dismissed. 



Sulzbach v. Kuhn. 

immt—l'nilfr Act of Mav IS, IBIS, a minor while attending school 

■r rmi-loye is rt-quircd undfr tlic Acl of May 13. 1&15 to attenJ 
ilic iiiiirni' nf Iijk iiiiplayitKut from lli^ time Lc reaches hia school 
iiilil I'e leaves the premises of his employer at night, and if injured 
tin ring tlnn linn 1 , in r-ntiilrd lo compensation. 

(')aimant represented hy J. S. Oonwell, Philadelphia. 
Defendant represented by Arthur T. Porteous, Philadelphia. 

OPINION BY MACKEY— December 22, 1921. 

We feal that Referee Bosler was justified both by law and fact 
in his conclusions in the case. 

When the defendant employed the claimant he was fully advised 
as to the boy's age, and, of caurse, was familar with the Act of May, 
13, 191.5 governing the employment of boys of that age. He was 
aware that ir was necessary for him to accord to this lad school 
periods of at least eight hours each week. He also knew that tlte 
Act in question provides as follows: 



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"In computing the maximum number of hours per day or per 
weefe peimitted in this Ad, the hours spent in school by said minor 
Bhall be considered as part of Hie working day or working week." 

Therefore when the claimant was at school he was in the course 
of his employment for the reason that the law compelled the employ- 
er to hire him under that arrangement, and when the employer en- 
gaged the boy he accepted the full responsibility of seeing that this 
law was obeyed. If it was to his advantage to employ the boy under 
these conditions, while enjoying the fruits of the boy's laho-, lie must 
discharge all his obligations toward him and society at large. 

The compensation law, read into this relationship, will hold that 
when the boy was at school he was still furthering the interests of 
the employer, for he was better preparing himself for the Intelli- 
gent prosecution of the employer's business. Under the law there- 
fore this boy was in the course of his employment from the time he 
reached his school in the morning until he left the employer's 
premises at night, and. having been injured during this time, we 
only have a case of a boy injured in the course of his employment 
by furthering the interests of the employer. 

The award of the Referee is accordingly affirmed and the appeal 
dismissed. 



Budar v. Allegheny Garbage Co. 

Statute of Hinit'ttio'M^Fiutl receipt — Jurisdiction of Board mora than one yei 
after xhjmnn final receipt. 

The Board has jurisdiction to inquire ns to whether or not a final receipt wi 
properly executed, even through the petition for review has been filed more thn 
we your after it hns been executed. TV rtnttite of limitations does not apply ! 



Ivmnitg— Burden of proof— Not result of accident. 

Where the riiiimnnt suffered an accident while in the course of his employment 
for which he received compensation, and later executed a final receipt. ui>on n 
petition for review lie will not be awarded compensation for insanity when th- 
evidence presented fnils to show any connection between the injury and h ; w 
present mental condition. 

Appellant represented by Arthur I. Zeiger, Pittsburgh. 
Appellee represented by C, E. Graham, and W. Clyde Grubbs, Pitts- 
burgh, 



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.OPINION BY MACKEY, CHAIRMAN— December 30, 1921. 

It is contended that John Rudolph Rudar became mentally 
deranged in consequence of an accident that he suffered while in 
the employ of the Allegheny Garbage Co. 

Compensation Agreement No. 57377(1 was executed because of the 
facts surrounding the said accident. 

It appears that John Rudolph Kndar was employed by the 
Allegheny Garbage Co., as a driver ami while in the course of his 
employment, on January 7, 1918, re sustained an injury by accident, 
in the nature of a badly bruised chest, hip, and arm. Following 
this injury the aforesaid compensation agreement was executed pro 
tiding for the payment of compensation at the rate of ¥10 per week. 

The final receipt was taken on February 2. 1918. On May 8, 1919, 
a petition was filed asking for the modification of the said agree- 
ment alleging that since the accident and injury, "the injured 
employe showed signs of mental derangement, periodical outbursts, 
which later developed into insanity, all of which were the direct 
results of the accident, and that lie was obliged to sign the agree- 
ment and return to work because he was unable, to support himself 
and family on JflO per week, and not because his disability had 
terminated," 

At that time the Referee dismissed the petition because he 
believed that the statute of limitations had run against this claim, 
and in consequence thereof, he felt he had no jurisdiction in going 
into testimony in support of this petition. 

This came before the Board, which intimated that the petition 
ought to have one to review the original agreement and stating that 
all the questions involved in the case could be raised upon presenta- 
tion. 

This petition was subsequently heard and referred to the Chair- 
man, who filed, inter "Ma, the following: 

"This petition is dismissed without prejudice to the 
right of a competent pemon to renew the same, setting 
forth sufficient data to raise the legal question 
Involved. If it. be true the injured workman has he- 
come insane, and it is sought to charge the same to the 
original accident, then the matter must he brought to 
our attention by a person competent to, act in behalf 
of the insane person." 

In the meantime the Supreme Court has handed down its opinion 
in Hughes v. American Shipbuilding Corp., disponing of the legal 
objections raised by the defendant, and all subsequent opinions of 
the appellate' courts have thoroughly sustained the right of the 
Board to review the papers called "final receipts", setting them 



aside either as mistake of law or fact, and to revive or reinstate 
compensation agreements when justice demands the same, notwith- 
standing the faet that more than a year elapsed since the last pay- 
ment of compensation. 

The original contention of the Workmen's Compensation Hoard 
lias been thoroughly sustained by all the appellate courts, that when 
the parties have once brought themselves within the Compensation 
Act by entering into a compensation agreement, or an award of com- 
pensation has been made and .sustained that the statute of limita- 
tions has been forever tolled, and that the application of the same. 
as set out in Section 315, does not apply in such cases. Therefore 
the present proceedings are well sustained by all the decisions. 

The Board has thorough jurisdiction and is legally competent to 
inquire as to whether or not the final receipt in this case was proper- 
ly executed, in view of the facts surrounding the condition of the 
injured workman, and whether or not his present condition is due 
to the original accident which he suffered. 

In compliance with the suggestion of tbe Chairman, as to a proper 
person to present the case of the insane person, by proper court pro- 
ceedings, tbe Potter Title and Trust Co. was appointed guardian 
and in due course filed its petition praying for a review of the agree- 
ment and the matter was referred to Referee Cbristley to take 
testimony and return the same. 

Every opportunity has been furnished the legal representatives of 
the claimant and his counsel to follow out every feature of this case 
to its uttermost detail. Hearings have been continued from time to 
time at the request of the attorney for the claimant and every fa- 
cility which the Workmen's Compensation Bureau could furnish 
the representatives of the unfortunate man has been at their service 
in order to establish the true status of this case. 

The injury to the claimant was of rather an insignificant nature, 
consisting of some contusions on his hip, chest and left arm. He 
was attended by a physician on January S-9-10-11 aud 12 of 11)18, 
and tbe claimant visited him on the 1-Jth and 15th of the same 
month. 

There was no severe injury to his head. There was a slight scalp 
wound on the right of the median line which readily healed. 

Under court proceedings, the Potter Title and Trust Co. was 
appointed guardian to tbe estate of John Rudolph Rudar, a weak 
minded person, and it is also a matter of record that September 17, 
1919, the said .lohn Rudolph Rudar was adjudged insane by the 
Court of Common Pleas of Allegheny county. It is also in evidence 
that, at the end of four weeks, the claimant returned to work and 
continued as a garbage collector aud in this capacity served the 



defendant until some time in July or August, uninterruptedly. Then 
after a loss of a day or two, which causes are not disclosed, lie con- 
tinued reguarly in in the employ of the defendant until the follow- 
ing December. 

He was then taken from the wagon because of his cruelty to the 
horses, but shortly afterwards he was reinstated and continued to 
work until January 30 thereafter, when because of certain abnormal 
manifestations he was taken from work, removed to St. Francis' 
Hospital and subsequently to Mayview, another institution for the 
treatment of the insane. 

We have carefully reviewed all the medical testimony in this case 
and while it is true that the claimant is mentally deranged, never- 
theless, there is no testimony of any kind, medical or otherwise. 
that in the slightest degree would persuade- the Board that there is 
any connection whatsoever between the injury and the present 
mental condition of the claimant. His mental derangement is of 
some cause completely foreign to the accident. 

We therefore, dismiss the petition. 



Gibbons v. Gibbons. 

Course of employment— Driving on auto on errand for employer it in. 

Whore no employee is killed while driving an automobile on an errand for hii 
employer, coinpt'iiKfiliou will lir awarder! (li>ji"tnlrnti*. 

Factt — All inference! in favor of claimant, 

All iuferoences of fact should be resolved in favor of claimant in Ihe adminis- 
tration of the Workmen's Compensation Ac( where the circumstances will justify 
men a course. 

Claimant represented by J. G. Kaufman, Philadelphia. 
Defendant represented by C. B. Rhoads, Philadelphia. 

OPINION BY COMMISSIONER HO UCK— December 30, 1921. 

This is an appeal by the defendant from the Referee's award of 
compensation. The only question in dispute is whether the claim- 
ant's deceased husband was in the course of his employment at the 
time when he met with the accident which caused his death. 

The claimant's deceased husband was employed by the defendant 
as a superintendent of road construction. He lived in Lausdowne, 
On September 27, 11)20. his employer was about to begin the con- 
struction of a road in Hnddonfield, New Jersey. On the date the 
decendent was notified that the material for the construction of 



the r»ad had arrived at Haddonfield and in the evening, about 6 
o'clock, the decedent set out in a Ford touring car, owned by the 
defendant but furnished to the decedent for his use, to hire auto- 
mobile trucks to haul the material from the railroad station to the 
place where the work was to be done. At about 9 o'clock that 
evening the decedent interviewed a man in Llanerch from whom he 
had been in the habit of hiring trucks. Tlie decedent was then in 
the Ford touring car. He talked to this man about twenty minutes 
and this man was uuable to furnish him with any trucks for the 
following day. After the conversation, the decedent drove off in the 
direction of Ardmore, a place where he had obtained trucks before 
in emergencies. No witness was produced who saw the decedent 
after he left Llanerch at about 9 o'clock. At about midnight Mr. 
J. O'Mirro, a resident of Overbrook Avenue, Overbrook, was sum- 
moned to the door by an unknown man who was accompanied by 
another unknown person, and was told that an automobile had gone 
over the bank a short distance away. These two persons took Mr. 
O'Mirro to the place where the automobile had gone over the bank 
and then they disappeared and have not since been located. Mr. 
O'Mirro summoned the police who found the Ford touring ear at 
the bottom of the embankment, badly wrecked, and the dead body 
of the claimant's husband was underneath the automobile. There- 
was no evidence that it was foggy at the time of the accident, -and, 
the position of the automobile and the tracks made by it, it is 
evident that the decedent was driving the automobile west on 
Overbrook road approaching Sixty-sixth Street where the road came 
to an abrupt end. * Instead of turning into Sixty-sixth Street, the 
decedent must have driven straight ahead, probably confused by 
the fog, and his automobile fell over the embankment and killed 
him. On this state of facts the Referee found that the decedent 
was in the course of his employment when he met with this mishap. 
After a careful review of the evidence in the case, the Board is of 
the opinion that the Referee did not err in so finding. 

There is no doubt that the decedent started off on the evening 
of September 27 on an errand for his employer. There is no doubt 
that at 9 o'clock on that evening he was engaged in an effort to 
obtain trucks required by the business of his employer, and having 
been unsuccessful in obtaining them, it was necessary for him to 
inquire further and in other places for the necessary trucks. The 
last time he was seen alive he was driving toward a place where he 
had secured trucks before. Where he was between 9 o'clock and 
midnight we do not know but it is a fair inference, from all the 
circumstances of the case, that he was still engaged in the further- 
ance of the business of his employer. All inferences of fact should 



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be resolved in favor of the claimant in the administration of the 
Workmen's Compensation Act whore the circumstance*! will justify 
such a course, and the circumstances in this case justify the in- 
ference that the decedent was still in the course of his employment 
when he met his death. 

The ease at har presents many features similar to the facts of 
cases which have already been decided. Messer v. Manufacturers' 
Light & Heat Co., 2«.'{ Pa., 5; Flucker r. Carnegie Steel Co.. 263 Pa., 
1U!; Haddock r. Edgewater Steel Co., 2U3 Pa., 120; Leary c. Mcll- 
vain, 2C3 Pa., 4ft!) . 

In the Haddock case the Supreme Court ssiid this: 

"This is not the case of an employee injnred, after regu- 
lar working hours, on the way to his home; and we 
agree with the Court below that there iR nothing upon 
the record to show Haddock had, at the time of the acci- 
dent 'ceased to be active in the furtherance of his em- 
ployer's business.' True, the facts as found indicate 
that plaintiffs hushand intended stopping at his own 
residence, to sleep for the night, before reporting the re- 
sults of his trip of investigation to the president of the 
defendant corporation ; but, none the less, he was still 
upon his employer's errand and, in that sense, actually 
engaged in the furtherance of the latter's business or 
affairs." 

So, in the case at bar, there was nothing upon the record to show 
that the decendant had, at the time of the accident, ceased to be 
active in the furtherance of his employer's business. To find that 
be had ceased to he active in the furtherance of his employer's busi- 
ness would ignore the fact that the decendant had started ont on his 
employer's business and was still upon that business as late as nine 
o'clock, the laBt he was seen, and would resolve the inference of fact 
against the claimant. 

From what we have said, it follows that the Referee was justified 
in finding that the decendant was in the course of his employment 
at the lime of the accident, and his findings will not be disturbed. 

The findings of fact and conclusions of law of the Referee are af- 
firmed, and the appeal is dismissed. 



TJgino r. Hayes Wall Paper Co. 

Tuberculoait — Compensation allotted for, when remit of accident. 

Compensation will be awarded a claimant wlio injured his spine while cranking 
an automobile, when the evidence shows that his prcKcnt condition is due to tober- 
culosis which developed as a direct result of the accident. 



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Claimant not represented. 

Defendant represented by \Y. C. Urown, I'i'tsbm-gh. and Robert W. 
Ilankee, Harrisburg. 

6PINION BY MACKEY, CHAIRMAN— Dec 30, 1921. 

1IKARIXH HE xoro. 

The hearing dc iioro was granted on (Molwr IS, 1U2I, at the Pitts- 
burgh meeting, and by ogreeuiiit of the defendant insurance carrier, 
the record was referred to Referee ( iimminga of tin- 4th District for 
the purpose of taking the testimony of the claiiuan*. who is confined 
to a state sanitarium. Because of the fact that the claimant was 
located at Hamburg ;t became more convenient to coiuiiiissio.i Referee 
Seidel, and therefore t lie latter was substituted for Referee Cumniings. 

The testimony already taken before the Referee 5>y agreement was 
also adopted as though taken before the Board, and we have added to 
the record the testimony of tbe claimant. From all the testimony in 
the case we find as follows: 

FINDINGS OF FACT. . 

1. That the claimant, Tory I'gino, aged IS years, was injured on 
April 5, 1920, while at work in the employ of the Hayes Wall Paper 
Co., in Erie, that tbe claimant was cranking a car, wheu he was 
thrown against a wall, injuring his spine; that he promptly reported 
the accident to his employers, ami was unable to work tbe day follow- 
ing the injury; that on December 10, 1920, he entered St. Vincent's 
Hospital where be was operated upon by Dr. A. H. Kothe, who found 
a deep swelling in the region of tbe sacro iliac; that when the surgeon 
opened it up he found a roughened bone and a porous area, indicat- 
ing that the condition resulted from trauma; that within four or five 
days following the operation the claimant developed a temperature 
and a cough, which was followed by an abscess of tbe gland of tbe 
neck; that tuberculosis developed, which in the opinion of Dr. Rothe, 
lighted up as a result of the anesthetic; that the claimant was ap- 
parently healthy and worked steadily prior to tbe accident; that the 
claimant's disability is a result of the injury be sustained on April 
5, 1920. 

2. That it is agreed that the average weekly wages of the claimant 
amounted to $20. 

3. That the medical, surgical and hospital services were furnished 
by the defendant company. 

4. That no express statement in writing was served by either 
party to the other rejecting the provisions of the Workmen's Com- 
pensation Act of 1915, as provided in Section 302 (a), Article III, of 
the said Act. 



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CONCLUSIONS OF LAW. 

1. That Article III of the Workmen's Compensation Act of 1915 
applies to the contract of employment that existed between the claim- 
ant, Tony Ugino, and the defendant, the Hayes Wall Paper Co., on 
April 5, 1920, the date the said claimant met with an accident. 

2. That the injuries resulting from said accident were such vio- 
lence to the physical structure of the body as is contemplated in 
Section 301, Article III, of the Workmen's Compensation Act of 1915, 
and were suffered by the claimant in the course of his employment 
and while he was actually engaged in furthering the business or af- 
fairs of the defendant. 

AWARD. 

In accordance with (he findings of fact and the conclusions of law, 
herein stated, compensation is awarded the claimant, Tony Ugino, 
and against the defendant, the Hayes Wall Paper Co., for a period 
of twenty-three weeks and three days, from December 20, 1920, the 
tenth day after disability began, to June 1, 1921, inclusive, the date 
of last hearing, at the rate of $12. per week (60% of $20.) amounting 
to ($282). Compensation to continue at a like rate as long as the 
claimant's disability remains unchanged, but the total compensation 
'shall not exceed the maximum amount provided for total disability 
under the provisions of Section 300, Article III, of the Workmen's 
Compensation Act of 1915 as amended 1919. 



Meogrossi v. Wm. Steele & Sons Co. 

Compensation — Two aooidcntt within ten dan period— When commences, 

Where an employe fltepped on a nail injuring his foot, returned to work five days 
later but before he was able to perform any work, and was injured by being struck 
Oil the head with a brick, compensation will commence ten dnys after the first 
accident 

OPINION BY MACKEY— Chairman— December 30, 1921. 

This case comes before us for the determination of compensation 
for disability upon agreed facts. 

Under facts agreed upon by the parties, the claimant has suffered 
two accidents while in the course of employment for the defendant, 
first f on December 7, 1921, the claimant's right foot was punctured 
by a nail, while on December 13, 1921, he sustained a laceration of 
the scalp caused by a brick or piece of wood being dropped from two 
stories above where he was working. 

It is agreed that the claimant was completely incapacitated for 



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five days as the result of the first injury, arid that he returned to 
work on the 6th, but before the injury to his foot had sufficiently 
healed for him to perform any work. 

If, under the first accident, disability continued for ten days, com- 
pensation would be payable from the eleventh day after the accident, 
on December 17. 

It is conceded that when he came to work he ought not to have 
returned, therefore, it must be presumed that the injury to the foot 
would have lasted throughout the waiting period and bis compen- 
sation should begin December 17, and continue so long as he is 
disabled from either accident. 

His waiting period will end on December 23, 1921, and there is 
no doubt that his compensation due from the first accident will ex- 
tend beyond that period, therefore, the compensation from the first 
accident will begin as of December 17 and will continue as long 
as he lb disabled totally, by both accidents not to exceed 500 weeks, 
or if he suffers partial disability subsequently because of the injury, 
then such partial disability will not extend over a period of 300 
weeks. Of course, compensation will cease altogether at the moment 
the disability from both injuries shall have disappeared or ceased. 



Farran v. Curtis Publishing Co. 



i mistaken idea regarding bcr pbyro- 

Claimant represented by Wm. S. Wacker, Philadelphia. 
Defendant represented by Benj. O. Frick, Philadelphia. 

HEARING DB NOVO. 

OPINION BY MACKEY— Chairman— December 30, 1921. 

On September 10, 1920 a compensation agreement was executed be- 
tween the petitioner. Elizabeth Farran and the Curtis Publishing Co., 
providing for compensation to be paid by the defendant. 

The said compensation agreement fixed the date of accident suf- 
fered by the employe while in the course of her employment as 
August 17th, 1920. Under the terms of this agreement compensation 
was paid until October 2, 1920, the total payments being $46.40. 

On October 11, 1920, the paper termed a "Final Receipt" was ex- 
ecujed by the said Elizabeth Farran, terminating the said compensa- 

24 

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371) 

tion as of October 2, 1!)20, the paper containing tlie following state- 
ment: "Itesumed regular work 10/4/20." 

The present proceeding is a petition praying that the said final 
receipt be set aside and that said compensation agreement be revived 
as of the said date, because of the fact that the said paper was exe- 
cuted in mistake, and that because of the accident her condition has 
so deteriorated that she is now unable to perform manual labor. 

As far as the ability of the petitioner to work, we' find that she 
made the attempt, in consequence of advice of physician and suges 
lions by officers of the defendant. 

The petitioner returned to work on Octolier 4, 1920, when she 
worked one half a day, but at noon time she quit because she could 
no longer continue, having become sick. 

The next time the petitioner Watt enabled to resume her occupa- 
tion was on October 18, and from that date until the following Feb- 
ruary 12, she worked very irregularly because of her physical con- 
dition, being compelled to lose from two to three days every week 
because of the condition of her foot, stomach and back. 

We will subsequently advert to her physical condition to indicate 
our thought as to the cause of the same: 

Since February 14, 1921, she' has not lieen able to do any work, 
and from that time to the present she has suffered total disability in 
consequence of the accident she suffered, as described in the compen- 
sation agreement heretofore referred to, and an repeated in the testi- 
mony in this record. 

The evidence shows that when she suffered the accident upon the 
date whieh we have heretofore set out in this opinion, she was stand- 
ing at a table at work. A truck was being taken through that part 
of the defendant's establishment. The handle of the truck came off 
and the truck collided with the petitioner, knocking her to the floor, 
the wheel passing over her right foot and the work upon which she 
was engaged was pulled over on top of her, striking her in the 
stomach while she lay on the floor upon her back. 

In order to become thoroughly advised as to the physical condition 
of the petitioner, the Board selected an impartial, expert physician 
and surgeon who examined the petitioner, after the Board had grante<i 
a hearing rfe novo, who testified before the Board as to his finding*. 
Dr. Oarnett's testimony is very full, conservative and yet convincing. 

In order to make his examination thorough and to determine the 
nature of the petitioner's physical deterioration, an exploratory ab- 
dominal operation was performed on August 17, last. 

Upon full consideration of all the testimony in the case, the Board 
flnds that at the time the petitioner signed a paper, indicating that 
she had been persuaded that her condition was such that she could 



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371 

resiune»her occupation in October, 1020, that she was thoroughly 
mistaken, aw. was the medical advice which was offered both her and 
her employer; that she was not in a physical condition to return to 
work ; that as a matter of fact she was practically suffering complete 
and total disability at that time. 

We find as a fact that all her physical ailment*, including frequent 
vomiting, complete physical weakness, ami inability to work has been 
brought upon her by the accident she suffered, which is the subject of 
this case. 

We tind definitely, upon Dr. Carnett's testimony, that the clai- 
mant's unfortunate physical condition is real; that she is not a mal- 
ingerer, and that while she, by nature, is of a neurotic condition, 
nevertheless the accident has so aggravated this original condition 
as to bring about a great disturbance in her digestive organs and 
produce loss in her weight. 

We find the date when her total disability was thoroughly in evi- 
dence and developed, was February 14, 1021, and while there had 
been considerable loss of time theretofore, the record is not suffici- 
ently clear in that respect to enable us to accurately determine the 
amount of time she lost for the purpose of calculating partial disa- 
bility. The evidence is clear and conclusive that in consequence of 
her higly developed neurotic condition, her inability to work without 
vomiting, and her extreme weakness is due to a rather violent and 
severe injury upon a very sensitive and highly nervous girl, without 
the usual strength and vitality of one of her age. 

The testimony of Dr. Cnrnett is clear that the accident superin- 
duced and brought upon her this condition which has rendered her' 
unfit for service or work. 

In view of the fact that she was able to work before the accident, 
we are justified in finding that at the present time she is suffering 
total disability and has so suffered from the 1.4th of February, in 
consequence of the injury described in the testimony in this case, 
while she was in the course of her employment for the defendant. 

We therefore direct that the paper known as the "Final Receipt" 
be set aside as such, it only being evidence of the amount of com- 
pensation received up to the time: that the coinpensation at the rate 
of $8.70 per week he paid, as of that date and to continue so long as 
the present status of the claimant's health continues, not to exceed, 
altogether, a period of 500 weeks. 



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372 
Rick v. American Bridge Co. 

I'~innl rreeipl- -When act usiili . 



Claimant represented by James J. Kegan, Philadelphia. 
Defendant represented by W. W. Merrill, Pittsburgh. 

OPINION BY HACKEY, CHA IBM AX— December 30, 11*21. 

HEARING DE NOVO. 

On June 2, 1917, the claimant and denfemhmt entered into a com- 
pensation agreement providing for payment of coin pen sat ion al the 
late of $8.75 per week. The claimant returned to work on June -7. 
1917. 

On June 28, 1021. the claimant filed a petition to revive the said 
compensation agreement because of the fad thai the claimant had 
lost the use of his hand and was unable to follow his former <><-<up.i 
tion. He prayed for compensation for the loss of the use of said 
hand. 

The defendant filed his answer on July 8, 1921, denying the charges 
set forth in the claimant's petition and setting up that the claimant 
had executed a final receipt on November 28, 1917. 

At the time of the hearing before the Referee, it was agreed that 
the petition should be considered as one praying that the final re- 
ceipt bo set aside and the modification of the agreement to provide 
for the loss of use of the right hand. 

The claimant received compensation from the defendant in the 
amount of $271.75 in addition to a certain sum from the defendant's 
voluntary accident relief fund, based upon the loss of fingers. The 
fact that the defendant returned to work and for a time received 
wages equal to or in excess of his former remuneration has no bear- 
ing upon the question as to whether or not he sustained the loss of 
the use of his hand. We find that at the time he signed the reeeipl 
he thought he had not lost the occupational use of his hand. At 
the time of the accident his duties required him to handle bait*. 
chisels, hammers, jacks and also involved him in moving heavy machi- 
nery, and we find Bince the accident he cannot follow his former oc- 
cupation, for under the testimony whenever the claimant's work in 
volves him in lifting with the right hand he is compelled to do it 
with his wrist rather than his hand. He has made many attempts 
to secure employment in some of the largest establishment in and 
about Philadelphia, hut has failed because the display of his hand 
is rather a persuasive indication that he has lost the use of this mem- 
ber. 

-n, y doodle 



373 

The accident had caused the amputation of the index, middle and 
ring fingers of the claimant's right hand at the proximal joint. It 
is the opinion of the Board and we so find that because of the con- 
dition of the claimant's hand, he has lost the use of his right hand, 
and further, that the paper known as "Final Receipt" lie set aside. 
that compensation agreement be restored and modified to provide 
for the loss of use of the claimant's hand, and credit to he given for 
the amount of compensation already paid on the said agreement. 



Tarquinio v. K". Snellenbur'g & Co. 

t'ovrxe of employment — Injury recdred by employe irliile piaffing at noon hour on 
employer'n premise*. 

A claimant, who suffered a hroken nnkle while plnying »t noon liour on 111.- 
promises of hie employer, nt n plncc net aside for unon-linnr recreation, hns snstninr* 1 
nn accident while in the course of his employment. The course of employment, 
in such ease*, is not broken by the lunch hour period when that period is spent on 
the employer's premises. 

Claimant not represented. 

Defendant represented by Richard A. Smith, Philadelphia. 

OPINION BY COMMISSIONER HOTTCK— December 3ft, 1921. 

This is an appeal hy the defendant from the Referee's award of 
compensation. There is no dispute about the facts in this case. The 
claimant was employed as a stock boy by the defendant and on March 
-3. 1921, during the lunch hour, he was engaged in playing a game of 
soccer on the roof of the defendant's building. This roof was fur- 
nished hy the defendant as a recreation place for the use of its em- 
ployes during the lunch hour and other intervals when the employes 
were not actually engaged about their duties. During the lunch 
hour on the date stated, the claimant was using the recreation place 
for the very purpose for which it was furnished hy the defendant. 
While engaged in the game which he was playing, the claimant 
sprained his right ankle and was disabled until Alpril 11. 1021. The 
appeal is on the ground that the claimant was not in the course of 
his employment or in the furtherance of the interests of his em- 
ployer, but was engaged in sport entirely for his own Itcnefit. 

Tin- Board is of the opinion that the claimant was in the course of 
his cmoloyment when injured and. accordingly, he is entitled to com- 
Dfiisatiou. Il has been held repeatedly that the course of employ 
m-iit is not hroken hy the lunch period when that period is spent on 
the employer's premiss, neither is it broken hy the fact that the em- 



JS74 

ploye engaged in playing. The employer certainly knew that the 
recreation roof would be used for such purposes, and, in fact, pro- 
vided it for that very purpose. Recreation for the employe benefits 
both the employe and the employer by rendering the employe more 
capable of serving his employer. We feel that it would violate the 
letter and the spirit of the compensation act to hold that the course 
of employment is broken by these periods of recreation. We need 
cite hut a few cases sustaining the principle which controls this case. 
Williams v. Susquehanna Silk Mills, 5 Pa. Workmen's Compeinsation 
Board, 248; Siegfried p. Phila. & Reading Coal & Iron Co., 5 Dept. 
Reports, 1702, affirmed by the Common Please Court of Schuylkill 
County, C Dept. Reports, 516; Wolford v. Reading Dye Works, 6 
Dept. Reports, 769 ; Hale v. Savage Fire Brick Co., 75 Pa. Snper., 454. 
From what we have said it follows that the Referee did not err 
in awarding compensation in this case. The findings of fact and con- 
clusions of law of the Referee are affirmed, and the appeal is dis- 
missed. 



Yorkers v. Ellsworth Collieries Co. 

Partial disability — Hevnrrence of—When compensation trill be reinitiated. 

(\>m|>('iisutkm for partial disability will be swarded where the claimant, who 
hnii Buffered an injury to iiis Iirb, signed a finnl receipt, returned to work, but won 
unable to work stendily because of Ilie weakened condition of his legs, whieh wns 
the direct result of the previous accident. 

Claimant represented by A. M. Silverman, Pittsburgh, 
Defendant represented by 0. E. Graham, Pittsburgh. 

OPINION BY COMMISSIONER JA BRETT.— Dec. 30, 1921. 

The claimant, Peter Yorkers, was on -liine 20, 1018, in the employ 
of the defendant company as a "cutter aud pick miner" at its No. 3 
Mine at Ellsworth, and on said date he met with an accident which 
is described in the claim petition as follows: 

"He was making a fall aud while drawing the post 
some of the first ply of roof coal above the draw post a- 
bont six inches thick fell out between the post that had 
been drawn and struck him." 

As a result of the accident he sustained a fracture of the left thigh 
and a compound fracture of the right leg below the knee. On Sept- 
ember 21, 1918, a compensation agreement was entered into between 
the parties and compensation was paid under said agreement from 



)gle 



July 13, 1918 to June 23, 1919. The claimant BHgned a final receipt 
on July 14, 1919 for tbe compensation and there was a notation on 
the receipt: 

"That a supplemental agreement would <be entered in- 
to if any further disability exists." 

On March 8, 1920, the claimant filed a petition to review the com- 
pensation agreement, alleging in substance that be was partially dis- 
abelil, on which petition a hearing was held before the Board on April 
14, 1920, and an award was made for partial disability and in our 
opinion we said: 

"The matter was heard before tbe Board at Pittsburgh 
on April 14, 1920, and we, at that time, stated to the 
parties that in our opinion the claimant was entitled to 
compensation for partial disability and that it should 
continue for at least three months from the date of hear- 
ing so as to give the claimant time to accustom himself 
to heavier work. We are of the same opinion now as, 
from the testimony and our own observation of the claim- 
ant, we believe that he is and has been partially dis- 
abled. We think, however, that he - is not making tbe 
proper effort to help himself, but to be fair with him, 
we will allow him three months from the date of hearing 
to accustom himself to heavier work as we believe, in 
that time with an honest effort on his part, he will be 
fully recovered." 
We set aside the final receipt and ordered tbe insurance carrier 
to pay the claimant compensation up to July 14, 1920, the end of the 
period which we allowed him to accustom himself to heavier work. 
The insurance carrier paid compensation up to July 14, 1920, and the 
claimant made no demands for compensation thereafter but returned 
to work and worked, off and on. up until about the 8th day of Feb- 
ruary, 1921, but in the mean time, on January 31, 1921, he filed his 
petition for reinstatement of his compensation agreement, alleging: 

"And as ground for this petition I allege that sub- 
sequent to the said July 14, 1921. my disability re- 
curred in the following manner and to the following ex- 
tent: Has continued since July 14, 1921. to partial ex- 
tent, that on account of weakness in his legs, which re- 
sulted from the injury that he sustained on Jnue 20, 
1!)1N. And as result of which weakness he has only been 
able to work part of the time, and that the said weakness 
in bis legs has rendered him partial disabled for all 
time." 

This petition was assigned to Heferee H. B. Henderson and upon 
it a hearing was held. The Referee dismissed the petition for the 
reason "that since the time the Workmen's Compensation Board 
made the order granting tbe claimant compensation for his partial 



376 

disability at the rate of $7.42 to July 14, 1920, that his disability has 
not increased or recurred and for the further reason that since that 
time he has been earning more wages than he earned at the time of 
his accident and injury." 

From this decision the claimant appealed and the Board granted 
a hearing de novo. In our opinion granting the hearing de novo, we 
said: 

"It is the desire of the Board to see the claimant 
anil we are also desirous of hearing from the defend- 
ant on the questions as to whether or not the claimant 
has put forth an honest effort to do his work." 

At the hearing before the Board testimony was taken and the 
testimony taken before the Referee was adopted to be considered as 
if taken before the Board. 

The testimony shows that the claimant, from August until about 
Febuary 8, 135 working days, worked but 51 days and this under 
great difficulty; that owing to his condition he could only work but 
short periods when he would have to rest: that he had fallen down 
at his work while carrying rails or timbers. In this lie has been cor- 
roborated by witnesses who observed' him at his work. He has IonU- 
fled that he tried to do his former work ; that of a miner, but that it 
was too heavy for him; that it was impossible for him to move the 
cutting machine about as the bar alone with which he had to mow 
the machine weighed about 60 pounds and the testimony shows that 
in moving it he would have to lift up. 

We are satisfied that he was and is unable to do that kind of work. 
It is true that he did not do much work rinrng the period which he 
gave him to accustom himself to work, to wit, from April 14, 1920 to 
July 14, 1920, but he has accounted for this by stating that lie hurt 
Ilia leg and that he worked whenever it was offered to him. 

We feel, from the testimony, that he ha<s made a fnirlv good effort, 
tint we really think that he could have dune mora than he did, luil 
under all of the circumstances we cannot bring ourselves to believe 
that he is now physically fit to earn greater wage-* than he earned 
after the signing of the final receipt up to the time that we awarded 
him compensation ; that was about $20.47 a week. We will not take 
his earning power during the last period which he worked for the 
reason, as stated, that we think be could have done better. We think 
that his earning power is what we had fixed before, to-wit. R20.47 

Tt is true that three doctors have testified that he is able to do 
heavier work and that if he would keep at it he would soon he back 
to nearly 100%, but in the face of his testimony that he went to work 
and that he would have to rest; that he could not work regularly 
owing to his condition; that he had fallen down while carrying rails 
or props or timbers and this uncontradicted, we think this is the l>cst 
proof as to his physical condition. s' L . 



:(77 

We therefore hold tli.n1 Die claimant is still partially disabled and 
t liar hi* earning power is (lie saint' us we fixed by our opinion of Dec 
ember 7. lifi!0, to-wit, ?i'll.47 per week, which makes a loss of earning 
power of $11.84 per week: bi« wages at the time of the accident being 
£35.31 per week. As stated, we cannot consistently take bis earning 
[> ,\ver from August 1, 1U21 on as we feel that he did not, during this 
lime, do all that lie might have done but we are satisfied that even if 
In- had exerted full effort, (hat hi: would not have ibeen able to earn 
nti if than the $20.47 per week. 

We therefore hold, on (lie aliove findings of fact, that the claimant 
is partially disabled and do hereby order that the final receipt be 
•et aside and the defendant hy its insurance carrier, the Ocean Ac- 
cident Corp., pay to the claimant, compensation due from July 14, 
li)"l) to date; the insurance carrier, however, to be allowed credit 
on compensation due to the extent of the wages earned from August 
! on. 



Adams v. Pittsburgh Plate Glass Co. 

Depentleitrii- -Parent* — Iturdeti nj pint-}. 



■Practice and procedure-- -Amendment uj clni 

A claim petition may be amended so tin to introduce it 
claimant, on the grounds tbnt she also ivns riupwirirnt 
snpiwrt, us it dors not introduce n new i'hukc of action. 

Claimant represented by C. K. Harrington, Kittanning. 
Defendant represented by L. O. MeBurney. Pittsburgh. 

OPINION BY COMMISSIONER JARBETT— December 30, 1921. 

HEARING DENOVO. 

This case was originally heard before Iteferee Gleason, who dis- 
, allowed compensation for the reason that dependency had not been 
proven. The claimant appealed and the Board granted a hearing 
dc novo, at which hearing testimony was taken aud the testimony 
laken before the Referee was adopted lo he considered as if taken 
before the Board. 

Counsel for claimant moved lo amend the petition so as to include 
as party claimant, Maggie Adams, wife of the claimant, John Adams, 



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378 

on the grounds that she also was dependent to an extent upon the 
deceased. Counsel for defendant objected to an allowance of the 
amendment. 

We will allow the amendment, as it does not introduce a new 
cause of action. Anstock, guardian of Howard Backwell r. Director 
General of Railroad, V. S. Railroad Administration, L. V.-R. 7 Dept. 
Reports 2100. 

The question then is: Was either or both of the claimants depen- 
dent to any extent upon their son, the deceased employe? 

The testimony shows that John Adams, at the time of his son's 
death, received a monthly wage of $204.45. Mr. Adams testified that 
it was |175 but Mr. T. A. Neurohr, testifying from the pay-rolls, 
testified that his wages immediately preceding his son's death, were 
$102.20 first half of the month and $102.25 last half of the month. 
This is more definite testimony than that of the claimant and we will 
therefore adopt it and find as a fact that John Adams' monthly wage 
at the time of decedent's death was $204.45. 

The family was made up of the claimants. John Adams and Maggie 
Adams, a son fifteen years of age, a hired girl, Mrs Adams' mother 
and the decedent, and the testimony of the claimants is that the 
monthly expenses of the household were as follows: Groceries $120, 
meat $8, fruit $4, and other groceries of which they did not estimate 
the cost. It therefore could not have been very much or they would, 
no doubt, have been in position to advise us what the full expense 
was. Considering the other expenses, we think a fair estimate would 
be $15 a month. This makes the total expenditures along this line 
$147. Dividing this amount by six, the number of persons that made 
up the house hold, it would average $24.50 for each person. The de- 
cedent's expense should not be charged against the claimants, neither 
should that "f Mrs. Adams' mother as the decedent was self-support- 
ing and the testimony shows that the mother had an estate of her 
own; the claimants were not obliged to maintain her. This makes a 
total of $49 to be deducted from the $147 which leaves $98 the amount 
required to maintain the claimants and those whom they were 
obliged to maintain. 

Then the testimony shows that the claimants paid the following 
amounts each month: Doctor $15, carfare $8, lodge $3, gas $10. 
water $1.09. hired girl $20, medicine $7. which totals $64.09. We 
have been liberal in allowing those amounts as we have taken the 
highest estimates of the claimants. Adding this amount to the $98. 
the cost of groceries, etc, for the claimants nnd those for whom they 
were obliged to provide makes a total of $102.09. The claimant's 
wages were $204,45. This would leave $41.70 of Mr. Adams wages 
over and above his actual expenses. The claimants testified that the 
decedent contributed about *45 every two weeks to the family fund 



379 

and that he bought nil of the clothing for the claimant!*; that with 
the contributions from the soil and Mr. Adams' wages, they had noth- 
ing left any month after paying their expenses. 

We are n^t sitisfied that this testimony shows dependency as con- 
templated by the Act. 

Notwithstanding the fact that they have had the second opportun- 
ity of coming forth with convincing evidence, they have failed to pro- 
duce it. By figures given and liberally fixed by us. it shows that 
they had left over out of Mr. Adams' wages the sum of i|f41.76. We 
are satisfied, from our observation of the claimants and considering 
their station in life, their manner and means of living, that this was 
more than ample to provide them with clothing and such other in- 
cidentals as they or their child might require. 

They have not given us definite information as to their actual liv- 
ing expenses or sufficient information for lis to reasonably infer that 
dependency existed. It has been guess work with them. We must 
have evidence of a substantial nature. Here it is lacking. 

The following testimony of Mr. Adams given before the Referee 
still stands out against the claim: 

"Q. And you think you ought to have somthing on 
acconnt of the way youdost your son?" 
"A. Yes; sure." 

"Q. And it is not because you needed his money to 
live?" 

"A. No." 

"Q. You are getting along all right now?" 
"A. Yes; sure." 

So. after considering all of the testimony, their income and ex- 
penses, their station in life, their manner and means of living, then 
the indefiniteness and generality of their statements and the testi- 
mony ahove quoted, we are constrained to hold that the claimants 
were not dependent to any extent upon the wages of the deceased and 
we will therefore disallow compensation. 

In addition to the facts found above, we find as follows: 

FINDINGS OF FACT. 

1. That neither the claimants' deceased son, Ashley Adams, nor 
the defendant, the Pittsburgh Plate Glass Co., had served notice 
upon the other of rejection of the provisions of the Workmen's Com- 
pensation Act of 1!)1.5 and its amendments of 1910. 

2. That claimants' deceased son, Ashley Adams, was employed by 
the defendant company as a millwright at a weekly wage in excess 
of ?20 and while so employed on September 24, 1020, and while fore 



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380 

ing oil from a steel cask with air, the end of the cask blew out,"strik 
ing deceased mi the leg, causing compound fracture of the tibia, and 
fibula, with severe crushing of the soft tissues, from which accident 
lie died on October 25, 1920. 

From the facts appearing in this case, the Board arrives at the 
following conclusions of law: 

noNOLURlONS OF LAW. 

I. That claimants, John Adams and Maggie Adams, were not de- 
l>endent to any extent upon the wages of the deceased son, Ashley 
Adams, as contemplated by the Workmen's Compensation Act of 
1015 and the amendments thereto. 

DISALLOWANCE. 

The Board accordingly disallows the claim of John AdamB and 
Maggie Adams for the reason that the claimants have failed to es- 
tablish dependency as contemplated by the Workmen's Compensation 
Act of 1915 and its amendments of 1919. 



Pangratz v. Lehigh Valley Coal Co. 

Oowte of employment — Employe not wi(Wn, tohen riding toward* home on dejenl 
ant't "lohey." 

A claimant, who after completing bis day's work as a laborer, boarded a "lokey" 
or the defendant, which was against the roles of the rompany, and bad his h-j; 
crushed while getting off the lokey three-quarters of a mil'' from the mouth of the 
slope where he worked, is not entitled to columns a tion, as he was not where hi-i 
business required him to be at tbe time of the accident, and furthermore, he was 
not in any sense furthering tbe interests of his employer. 

Claimant represented by Roger J. l>ever, Wilkes-Barre. 
Defendant represented by P. F. O'Neill, Wilkes-Barre. 

OPINION BY MACKEY, CHAIRMAN— December 30, 1921. 

HEARING DE NOVO. 

On May 22. 1920, the claimant, Slephen Pangratz, and the defen- 
dant, Lehigh Valley Coal Co., were bound by the provisions of the 
Workmen's Compensation Act of 1915 as subsequently amended. 

I'pnn tbe said day, Stephen Pangratz, the above claimant, who 
was employed as a laborer in the Stockton slope No. 2 of the defen- 
dant company, had a weekly wage in excess of $20. 



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381 

Upon the said day, to wit, May 22, 1920, the defendant had finished 
liis work within the said slope between 3 and 4 O'clock in the after- 
noon. He did what is known at the mine as "checking out" and 
proceeded upon his way home from the head of the slope. Just at 
this point and upon the employer's premises was a locomotive about 
to start on what is known as a "lokey trip" for the Hazleton shaft 
of the defendant company. The claimant instead of proceeding to 
take a foot-path which led to a wagon road, which was the customary 
route for workmen to take to and from their work, chose to jump 
upon the said "lokey", and to ride from the premises. This wan 
an act contrary to the rules of the company aud there were notices 
posted upon the premises forbidding it. 

The claimant rode upon one of the cars on this trip to a point 
about midway between the two termini, the entire distance of the 
line between these two points being about one and one-half miles. 
The one point was at Hazleton shaft and the' other, this slope known 
as Stockton No. 2. This "lokey" train was owned and operated by 
the defendant company for the transportation of coal and supplies 
of different kinds between the two points. The claimant attempted 
to jump from the car when it was in motion at a point about midway 
between the two slopes, and in so doing he fell beneath the car and 
liis right foot was crushed. Because of this accident it was subse- 
quently amputated. 

CONCLUSIONS OF LAW. 

We must conclude that under the above recited facts, that at the 
time that the claimant suffered his accident, he was not in the course 
of the employment of the defendant. 

Orcat latitude has been given to the employe under circumstance 
somewhat similar to these, and the Courts, as well as the Board, have 
given him the benefit of the most liberal construction. He was a 
miner and his immediate place of occupation was within the slope. 
He checked out. thus indicating that he was through his day's work, 
when he proceeded to the mouth, of the slope, from which point it 
was necessary for him to adont his route home. At this noint he 
wns still in the course of his employment, and would l>e considered 
as heintr such until he was safely off the immediate premises of the 
employer. 

Here a very nice distinction can be introduced as between premises 
and property. For surely it cannot he said that a point on this rail 
road track three quarters of a mile away from the mouth of this 
slone is a nart of the nremises of the employer's particular business 
as conducted at Stockton No. 2. 

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This man chose to adopt what seemed to him to be an easy way 
home, — that is to ride rather than to walk, — and when he did it he 
was not prosecuting his employer's business he was not at a place 
where the employer's business required him to lie; and it cannot be 
said that he was even injured by the operation of the employer's 
business. It was not the operation of the train that injured him 
nor the fact that he was riding thereon, but he chose to leap from 
this moving train at a point midway between the two mines of the 
defendant at a place that could not be said to be the immediate pre- 
mises of either, and this conclusion is not changed by the fact that 
the track was laid upon land belonging to the defendant. 

We must conclude therefore that the claimant at the time he was 
injured was not upon the immediate premises of the employer, an 
it is contemplated in the Compesation Act. nor was he injured by the 
operation of the employer's business in any of these activities that 
were in the mind of the Legislature when the law was passed. He 
was not where his business required bim to be, and furthermore, he 
was not in any sense furthering the interests of his employer and 
consequently was not in the course of his employment. 

ORDEK. 

Compensation disallowed. 



Falat <-. Hecla Coal & Coke Co. 

Consul of foreign country — Authorized to file petition, 

Bection 310 of the Workmen's Compensation Act grants the necessary power *c. 
11 Consul of a Foreign Country to file fl petition «ml prosecute the claim. 

Child — Bitablinhing relationship, 

A birth certificate, and testimony uf the mother that the child is hers and th:ir 
deceased is its father, in absence of proof to the contrary is sufficient proof. 

D ept Wcticy — Wide w, 

i compensation, she must be living with her husband at tbi: 
1st be then actually dependent upon him for support. 

Claimant represented by John Eulamer, Pittsburgh. 
Defendant represented by Frank P. Martin, Pittsburgh. 



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OPINION BY COMMISSIONER JARRETT— December 811,1921. 
HEARING VE KOVO. 

On Hard) 12, 1918 the Acting Royal Swedish Vice-Consul Krike 
Bralin, in charge of Aiistro-Hungaiiau interests, tiled a claim peti- 
tion for compensation on behalf of the dependents of Inbro Falat. 
a subject of Austro-Hungary, who was killed while in the course of 
his employment -with the Ileela Coal & Coke Co., at Isabella, on 
March IS, 1917. The Hon. Thos. W. Miller, the Alien Property Cus- 
todian was joined as party plaintiff. The claim petition was 
amended at the hearing before, the Referee, naming the decedent as 
Imro Falat and his dependents as Anna Falat, widow, Verona Falat, 
daughter, born November 2(1, liHO at l.ucina, now Czechoslovak Re 
public, and Anna Falat, daughter, born January 20. 1914 at Lei-en 
li-ig No. 2, Fayette county. The record shows that all the dependents 
were, at The time of the decedent's death residing at Lueina, Czecho- 
Slvoak. 

The matter was heard before Referee II. B. Henderson at Pitts- 
burgh, on August 11. 1 !I2 1 . The widow. Anna Falat, appeared in 
person and testified, and on August 19, 1921, the Referee awarded 
compensation to the widow for the "iftO weeks and then to the child- 
ren thereafter until they arrived at the age of sixteen years. On 
August 2ft, 1921 the defendant appealed. On September 27, 1921, 
the Board granted a hearing da novo whieh was held forthwith. The 
testimony taken before the Referee was adopted to be considered as 
if taken before the Board. 

The defendant raises these questions: 

1. Is the claim petition a valid claim j>etitiou under the Work- 
men's Compensation Act. it having been filed by the Royal Swedish 
VieeOonsul without any authority other than that which may be 
diven such officer by virtue of his office or by the terms of the Com- 
pensation Act? 

2. I'ces the joinder of the Alien Property Custodian cure any 
defects in the claim petition which may exist by reason of the Vice- 
Consnl'B lack of authority or does the authority of the Alien Prop- 
ertp Custodian extend only to intervention in proceedings already 
begun by those legally empowered to do so? 

3. Is the date of birth of the child. Verona Falat, and the aver- 
ment that she was actually the child of the deceased sufficiently 
proved by the birth ceriifiiate offered in evidence? 

4. Ts there sufficient evidence of dependency to make an award 
of compensation to the widow? 

5. Should compensation be awarded to Verona Falat as a citizen 
of the Fnited States or as a non-resident- alien? 

l. ;e ciDvOooQle 



384 

We will answer the questions in their order. 

In Royal Consul of Italy for the dependents of Giocoiuo Valen- 
tini v. Marshall Foundry Co., 4 Dept. Reports, 2459, the Board, in 
jin opionion by Commissioner Leech, held that Section 310 of the 
Workmen's Compensation Act granted the necessary power to the 
Consul to file a petition and prosecute the claim. 

After an examination of the law and Brief filed by- counsel for de- 
fendant, we can see no reason why the Board should change its posi- 
tion. 

We think there is no necessity of answering the second question 
inasmuch as we hold that Consul is a proper party to file' the claim 
petition. 

As to the third question, the mother has testified that the child 
is her child and that the deceased is its father. There is no proof to 
the contrary and we have no reason to doubt what she soys. 

As to the fourth question, we feel that the evidence is not sufficient 
to warrant an award of compensation to the widow. The law pro- 
vides that to entitle a widow to compensation, she must he living 
with her husband at the time of his death or must be then actually 
dependent upon him for support. She was not living with her hus 
band at the time of his death, so the burden is therefore upon her to 
prove that she was then actually dependent upon him. The evidence 
shows that they were married November 22, 1909 at Bradenville. 
They lived together until August, 1910, when she went to Europe to 
live with her husband's mother, where she remained until the fall 
of 1012; then she returned to her husband and they lived together 
until April. 1914, when she again returned to Europe and lived with 
his mother. She testified that while in Europe she worked on the 
farm owned by her husband's mother and that she "kept"' her. It 
is true that she testified that her husband sent her money many times 
but when she is asked to name specific instances when she received 
money she only accounts for two remittances totaling 200 crowns. 
We have no reason to doubt that they lived together while sbe was 
in America, but this is not sufficient proof that while she was in 
Europe that she was actually dependent upon him. She has had 
ample opportunity to present to us evidence of actual dependency 
if it existed. All that we have that it did exist is her own bare state- 
ment and it is shaken when we find her away from her husband on 
the two occasions mentioned for such long periods and her absence 
not satisfactorily explained, and then her own testimony that she 
worked on the farm owned by her husband's mother and that hot- 
husband's mother "kept" her, and her failure to furnish convincing 
evidence of contributions. We are therefore not convinced that she 
was actually dependent upon him. We are therefore constrained 

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385 

to disallow compensation to her, but the dependency of the children 
being presumed (Strapon v. Pittsburgh Steel Co., 2 Board Decisions, 
450, 3 Dept. Reports 3226), we will award compensation to them. 

In answer to the fifth question, we are of the opinion that both 
children being now residents of the United States, that they are en- 
titled to compensation, and they being residents, the award should 
be made to their guardian and not to the consul. 

V : B . " '■" ■'" FINDINGS OP PACT. 

1. That no notice was served by either party on the other reject- 
ing Article III of the Workmen's Compensation Act of 1315- and 
that the Board has made no personal investigation of the facts in this 
case other than those appearing in the claim petition, answer filed 
and the facts adduced at the hearing! 

2. That the deceased, Imro Falat, was employed by the defendant 
company, Hecla Coal & Coke Co. on March 18, 1917 as a coal cutter 
at its mine in Fayette county, at an average weekly wage in excess 
of $20 per week and while in the course of his employment he sus- 
tained injuries by accident which resulted in his instant death. 

3. The deceased. Imro Falat, left to survive him his widow. Anna 
Falat and the following children: Verona Falat, born November 20, 
1920, at Lncina. now Czechoslovak Republic, and Anna Falat, born 
January 20, 1914, at Leisenring, No. Fayette county, the children 
at the time of his death were dependent upon him for support, but the 
widow, Anna Falat. was not living with him at the time of his death 
and was not actually dependent upon him as contemplated by the 
Workmen's Compensation Act of 1915 and its amendments. 

'4. That the funeral expenses of the deceased were in excess of 
$100, $9S of which amount was paid by the defendant company. 

T'pon the facts appearing in this record, the Board arrives at the 
following conclusions of law: 
w **■ 

CONCLUSIONS OF LAW. 

1. That Article TIT of the Workmen's Compensation Act of 1915 
applies to the contract of employment existing between the deceased 
nnd the defendant on March 18, 1917. 

2. That the said Imro Faint having met death by reason of in- 
juries sustained by accident while in the course of his employment 
with the defendant company and his children, Verona Falat and 
Anna Falat. being dependent upon him for support at the time of 
"his death, they are therefore entitled to compensation as provided by 
■the Workmen's Compensation Act of 1915 and its amendments. 

3. The widow, Anna Falat, not living with her husband at the 
rtime of his death or then not actually dependent upon him for inp- 

25 



port, is therefore not entitled to compensation, and compensatioi 
therefore disallowed as to her. 
The award follows. 



Leaper v. Pennsylvania R. R. Co. 

Accident — Contributing cause o/ disability. 

Where the Hoard is of the opinion that the injuries susluiiuil by thr elaimani 
Vas a contributing cause of bis disability, compensation will be awarded. 

Claimant represented by I'. M. Swaugor, Altoona. 
Defendant represented by H. Z. Maxwell, Philadelphia. 

-OPINION BY MACKEY, CHAIRMAN— December 30, 1921. 

HEARING DE NOVO. 

On August 9, 1920, the claimant was employed by the defendant, 
Pennsylvania R. R. Co., as a brakeman. His average weekly wage 
was in excess of $20. On the said date, the claimant while in the 
course of his employment for the defendant, and upon the premises of 
Hie defendant, in the State of Pennsylvania, was accidentally knocked 
off a freight train on which lie was acting as brakeman. 

He received some injuries to bis head and left side of his body in 
consequence of which be was disabled until October 4, 1920, when he 
returned to work. 

This continued until January 3, 1921, when he was suspended on 
account of the reduction in defendant's working force, and was with- 
out work until July 1, 1921, when lie was again given work by the 
defendant. 

The claimant now maintains that beginning September 5, 1920, 
and at every frequent intervals since that time, he has been subjected 
to what he terms "spells" or a condition termed "petit mal" by the 
physicians. 

There have been many medical examinations of this man and 
several very severe tests applied to him to determine whether or not 
lie was feigning the ailment which he is now suffering, and while 
there is some suggestion of this in the testimony, nevertheless, it is 
not conclusive and does not persuade the Board that this man is a 
malingerer. 

We are not unmindful of the fact that he has been under the obser- 
vation of the Referee and several very reputable physicians, and that 
many witnesses have testified to the genuineness of these physical 
conditions. 

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;ts7 

We, therefore, will nut accept the tlipoir that he hn>* heen content- 
plating a fraud upon the defendant. If this is true, time will reveal 
it more distinctly than now. Therefore, we will adopt the following 
facts and conclusions of law: 

BINDINGS OF FACT. 

1. That neither the claimant, Howard M. Leaner, nor the defend- 
ant, Pennsylvania R. K. Co., had rejected Article III of the Work- 
men's Compensation Act of 1915 and its amendments. 

2. That on August 9, 1920, and for some time prior thereto, the 
claimant was employed by the defendant as a brakeman on the Pitts- 
hurgh Division, and that in such employment the average weekly 
wages of the claimant were in excess of #2u. 

3. That on August 9, 1920, the claimant, while in the course of his 
employment with the defendant, and upon the premises of the de- 
fendant, near Coiiemaugh, met with an accident by being accidentally 
knocked off the freight train on which he was acting as brakeman by 
using straight air, receiving injuries to his head and left side of his 
body, and, by reason of said injuries as aforesaid, the claimant, was 
disabled until October 4, 1920, when he returned to work for the de- 
fendant at light work, (Bulletin board work.) That the claimant was 
paid compensation for his period of disability, from August 9, 192(1 
until October 4, 1920, under the Employer's Liability Act, stating 
that claimant was employed in inter state commerce. The claimant 
worked at the light employment given him by the defendant from 
October 4, 1920 until January 5, 1921, when he was suspended on ac- 
count of reduction in force, and had not worked a day since until 
July 1, 1921, when he was again given iight work by the defendant. 

4. That the claimant has never beeu able to perform the duties of 
brakeman since date of accident, nor has he been able to perform work 
where he would he in danger, for the reason that he has beeu having 
muscular spasms, or "spells", the first "spell" occurring on September 
5, 1920, and since that time he has had as high as four or five per week. 
That prior to time of accident he had never bad a "spell", and at time 
nf hearing several physicians testified that they do not know what 
really caused these '-spells", and so by agreement of parties, the claim- 
ant, was advised to report to Dr. Tnrnbull, State Sanatorium for Tu- 
berculosis, Cresson. for a thorough examination. That an examina- 
tion was made of the claimant by Dr. Turnbnll on May 17, 1921, and 
the doctor's report states that, "neither in the history obtained, nor 
from the physical examination of the patient, nor the laboratory ex- 
amination of his 'blood is there any evidence ]>ointing to a disease as 
the cause of the claimant's present condition, and assuming that the 
statements concerning previous health and present trouble are cor- 
rect, the conclusion appears unavoidable that there is a direct con- 
nection between the injury and the present condition." 



5. In accordance with the foregoing findings the Hoard is of the 
opinion that the injuries sustained by the claimant on August 9, 192", 
was a contributing cause of the claimant's disability, he never hav- 
ing been able to reBume the duties of a brakeman. 

CONCLUSIONS OF LAW. 

1. That both the claimant and defendant were bound by the pro 
visions of Article 1 1 1 of the Workmen's Compensation Act of 1915 and 
its amendments on August 9, 1920. 

2. That the injuries accidentally received by the claimant on 
August 9, 1920, were such violence to the physical structure of the 
body as is contemplated in Section 301, Article III, of the Workmen's 
Compensation Act of 1915; and, having occured while in the course 
of his employment with the defendant, and upon the premises of the 
defendant, he is entitled to compensation for disability from ten days 
after disability began, or from August 19, 1920, until October 4, 1920 ; 
and from January 5, 1921 until July 1, 1921, when the claimant re- 
turned to work for the defendant at light work, at the rate of 60% of 
$20, or the sum of $12 per week, 

AWARD. 

Compensation is awarded, and the defendant. Pennsylvania K. H. 
Co., is ordered and directed to pay to the claimant, Howard M. Lea- 
[ier, 00% of $20 or the sum of $12 per week, from August 19, 1920; 
and from January 5, 1921 until July 1, 1921. The defendant shall be 
given credit for the number of weeks compensation has already been 
paid. 



Smith v. Pennsylvania Central Coal Co. 

Com pen sntion agreement — Set axide, 

Where hii in sum nor rumor on t era into a compensation agreement under Hip 
mistaken notion tlint it wbs the insurer of the defendant employer, when ns :■ 
matter of fnct, it waa the insurer of another employer company of almost similar 
nnmc, but not of the defendant, the compensation agreement will he set aside. 

Claimant not represented. 

Defendant represented by H. M. Rose, Huntingdon, and H. J. Nesbitt, 
Pittsburgh. 

OPINION 1 BY MACKEY— December 30, 1921. 

Lawrence Smith, an employe of the Pennsylvania Central Coal Co., 
was injured in the course of his employment on Jane 23, 1917. 



3S0 

Abe result of the said accident he sustained the loss of afoot. 

The Pennsylvania Bituminous Mutual Association at the time was 
the insurance carrier of the I'enn Central Coal & Coke Co. The pol- 
icy of insurance Iiecaine effective on .January 1, MM" and covered thr 
I'pper Hillville mine of the said company. 

The accident was reported by the Pennsylvania Central Coal Co., 
which prior to the date of the accident, ;hiue 'J;i, HH7, had acquired 
ownership of the said mine. This report by the Pennsylvania Central 
Coal Co., was to the Bituminous Mutual Association. 

This insurance carrier, then, because of the similarity of name^ 
assumed liability for the accident to the said Lawrence Smith, and 
entered into Compensation Agreement No. 411083, and in the said 
agreement recited that the Pennsylvania Central Coal Co., was the 
employer, but signed the agreement as insurance carrier in behalf of 
the Penn Central Coal and Coke Co. 

Payments were then made to the said Lawrence Smith up to and 
including November 9, 1917. The total amount paid being $178.20 or 
18 weeks at f9.90 per week, which was the rate of compensation agreed 
upon in the said compensation agreement. 

The insurance carrier then became cognizant of the fact that it 
had assumed an obligation in behalf of the Pennsylvania Centra] Coal 
Co., when as a matter of fact, it was the insurer of the I'enn Central 
Coal & Coke Co., and not of the defendant. 

It then filed a petition to set aside the said agreement on the ground 
of mistake. 

The Board has instituted every possible line of inquiry to prove the 
truth or falsity of this statement and to show whether or not there is 
any collusion between the parties. 

One T. F. Barnett was the nominal president of both concerns. 
Every effort has been made to bring him within the jurisdiction of 
the Board for the purpose of examination, but this has repeatedly 
failed. 

Testimony taken before Referees Oleason and Christley thoroughly 
establish the statements herein contained in this opinion, and upon 
these facts there is nothing for the Board to do but to grant the 
petition, give the insurance carrier the relief it prays for, withdraw 
its approval of the Baid agreement and set. aside the same. 



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390 
Pyrick v. Delaware, Lackawanna & Western R. R. Co. 

Blep-molhcr — Xot vnlillal I" couipminlioii, 

When, it d(»volo[iK "t tl»' Induing (hut diiiniuiit is tint tlic mother of tbe decedent 
hut liis step -mot her, she is tint entitled to compensation, 

Pre»ihe.i — Employe'* pretence nut requited iii place where he irn* injured. 

Although ileeeoYiit iviis un (lie |iri'mis:'S of his employer nnd Although his dentil 
\v;is ciuiKcd by the operation of tli+? employer's business, if the employe'* present"* 
was not required nt the. place where he was injured by tbe nature of his omidoy- 
uiem, compensation will be disallowed. 

claimant represented by E. F. McGovern, Wilkea-Barre. 
1 tefendant represented by Elmer D. Adair, Scran ton. 

OPINION BY COMMISSIONER HOUCK— December 30, 1921. 

This is an appeal by the claimant from the Referee's disallowance 
of compensation. The claim petition was filed by Mary Pyrick as tbe 
mother of the deceased employe; and Mary Pyrick was the only 
person named in the petition as a dependent. At the hearing it de- 
veloped that Mary Pyrick is not the mother of the decendent bat is his 
step-mo titer. Accordingly, she is not entitled to compensation 
[tarry v. Pnila. & Heading Coal & Iron Co., 2 Mackcy, 133. 

The appeal is by Mary Pyrick as next friend and natural guardian 
of Julia Pyrick, Helen Pyrick, John Pyrick, Elizabeth. I'yrick, Cath- 
erine Pyrick and Dorthy Pyrick, minor sisters anil brother of 
Michael Pyrick, for and on Ibehalf of swd minors. These minors 
never filed a claim for compensation nor was any ever filed for them. 
They were not parties to the claim for compensation which the 
Referee disallowed and they have no standing to appeal from the 
Referee's disallowance. On these grounds this appeal must fall. 

However, the Referee did not-disallow compensation on the ground 
that the claimant was not the mother of the decedent bnt he dis- 
allowed the claim on the ground that the decedent was not injured 
while in the course of his employment. The evidence in the case 
justifies the Referee's finding. 

The decedent had quit work for the day and instead of proceeding 
to the place where a work train was provided by his employer to carry 
him and other employes to their destination he walked beyond this 
point, in a direction opposite to the diretcion he would take in go- 
ing to his home, for about a distance of about 500 feet. Here he 
attempted to board a moving train which was going in the direction 
of his home and was thrown under the wheels and killed. The Referee 
disallowed compensation on the ground that although decedent was 



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391 

cm the premises of Lis cmjiloyui' and although his death was caused 
by the operation of the employer's business on tlie premises, the em- 
ploye's presence was not required at the place where he was injured 
by the nature of his employment. The evidence fully warranted the 
Referee in finding that the decedent's presence was not required at 
the place where he was injured. Accordingly, under the Compensa- 
tion Act, his dependents' are not entitled to compensation. 

The findings of fact and conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



Ewd v. Murphy, Cook & Co. 

I'.mplnymrnt — If maritime board has no jurisdiction, 

Where the claimant tit the time of the alleged accident was engaged with others 
in placing n pole between n ship ami a wharf. Held; tbnt claimant's -employment 
w.ik maritime in nature, and Com pens it t km Act docs not apply. 

Claimant not represented. 

Defendant represented by Robert J. Morris, Philadelphia. 

OPINION BY COMMISSIONER HOUCK— liecember 30, 1921. 

The claimant, in this case, was employed as a stevedore and he al- 
leges that he was injured on March 5, 1921, by being struck on the 
right leg. At the time of the alleged accident the claimant was en- 
gaged with others in placing a pole between a ship and a wharf in 
order to keep the ship off so that the cargo could be discharged. The 
Referee disallowed comjKjnsation on the ground that the claimant's 
employment was maritime in nature and that, accordingly, the com- 
pensation act does not apply. The Hoard is of opinion that the re- 
feree did not err in holding that he had no jurisdiction. Hogan i\ 
Tnited Fruit Co.. 260 Pa.. 2fi0. 

The findings of fact and conclusions of law of the Referee are 
affirmed, and the appeal is dismissed. 



Haley r. Pennsylvania R. E. Co. 

ftralli— Remit of di*ca*c and infection follo'rin,t *).' 

Where death is the result of disease and infection naturally fol>, 
niffored while in the. course of employment, compensation will be ni 



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Claimant represented by John F. Sullivan, Altoona. 
Defendant represented by H. '/,. Maxwell, Philadelphia, and G. A. 
He-user, Altoona. 

HEARING DE XOVO. 

OPINION BY MACKEY, CHAIRMAN— December 30, 1921. 

FINDINGS OP FACT. 

1. That no notice was served by John Francis Haley on the 
Pennsylvania Kailroad Company or by said Company upon him 
rejecting Article III of the Workmen's Compensation Act of 1915. 

2. That John Francis Haley was employed by the Pennsylvania 
R. R. Company as a ateam and pipe fitter at its shops at Juniata, 
Pa, at an average weekly wage in excess of |20., and while in the 
course of his employment, on August 21, 1919, he was injured while 
trying to avoid escaping steam from a valve falling over some pieces 
of iron, injuring bis left leg below the knee. There was some slight 
evidence of injury, bleeding and subseqent discoloration and a 
compensation agreement was entered into between the defendant 
company and John Francis Haley, which was paid under the terms 
of this agreement from October 7, 1919, to January 1, 1920, at the 
rate of $10. per week. The said workman then returned to his work 
and continued in some light employment until about November 2, 
1920, and he was taken to a hospital on November 3, 1920, and died 
November 20, 1020, leaving to survive him a widow, i.avina M. Haley, 
the claimant, with whom he resided at the time of his death and 
who was dependent upon him at the time for support. There were 
no other dependents. 

3. That when the said John Francis Haley returned to work and 
during this entire period the condition of the leg remained the same 
and did not markedly improve, although at times the running sores 
would apparently disappear, scabs would form and fall off, while the 
leg was in turn pink and purple in color. A few days before he was 
taken for the last time to the hospital the injured leg was discolored 
from the ankle to the knee. He also complained of pain in his ah- 
domen and head. He was never able to do his former hard work. 
He rapidly acquired weight, taking over one hundred pounds in a 
very short time, and the cause of his death was set out in the hospital 
records as myocarditis, endocarditis and chronic nephritis. 

*. That from the conflicting medical testimony the Board deter- 
mines that the injury which the deceased suffered in the course of 
his employment for the defendant company was the contributory 

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cause to his death.' We adopt the thought of Dr. Blakeslee in his 
testimony, when he said: 

"He," (meaning the deceased), "received an injury to 
the shin bone and had an open wound. The testimony 
is that it became ulcerated and did not beal and showed 
evidence of inflammation and swelling and an inflam- 
ed area, and even under hospital treatment it did not 
fully recover, although there was some improvement. 
The condition continued unimproved until his admis- 
sion to the hospital. • • • • q d admission he had 
failure of compensation, associated with the deseased 
condition of the kidneys, or as the death certificate gives 
it 'disease of the heart muscle of the inside of the heart, 
and the kidneys', translated into plain English. We 
have here in this case an open wound, followed by a 
source of absorption of poisonous materials over a per- 
iod of 15 months, and during that time there was consid- 
erable absorption of toxic material sufficient to affect 
the organs of the body. That would show itself after a 
period of time in breaking down of function as was in- 
dicated here when the compensation broke. The pic- 
ture is arterial sclerosis as a background, induced by the 
ordinary factors of wear and tear of a man in his station 
of life. That break-down manifested, itself when the 
heart and kidneys broke down. One of the most potent 
sources of poison is absorption of poisonous substances 
from an open wound over a period of time." 

5. The Compensation Board of Pennsylvania therefore finds from 
a study of the medical testimony in the case that John Francis Haley 
died as result of disease and infection that naturally followed his 
injury as above described^ suffered while in the course of his employ- 
ment by the Pennsylvania R. R. Co., for the deceased had drawn 
compensation on account of the injury from the defendant company 
for a period of twelve and one half weeks, namely from October 5, 
1919 to January 1, 1920, inclusive. The expenses of the last sick- 
ness and burial of deceased, amounting to over $100, and no part has 
been paid by the defendant company. 

Under the foregoing facts we make the following award: 

AWAKD. 

There is awarded to Lavina M. Haley against the Pennsylvania 
R. R. Co., defendant, compensation at the rate of 40% of $20 or $8 
per week for a period of 287J^ weeks beginning November 20, 1920, 
and an addional amount for the cost of these proceedings as taxed 
by the Referee. 



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In the following casea the Hoard affirmed the Referee's award 
of compensation: — 

Allen v. State Workmen's Insurance Fund. 

Arnslmni v. Buck Rjdw Coal Co. 

Attmiin v. Roydhouse-Arey Co. 

Bacha v. Barnes & Tucker. 

Baker v. Fetter. 

Bnumgardner v. State Workmen's Insurance Fund. 

Beckerman v. Jacob Beckerman & Son*. 

Bell v. IT. C. Friek Coke Co. 

Bellomo v. Idamur Cool Co. 

Bender v. IWnwarc River Steel Co. 

Berardiui v. Mellon-Stuart Co. 

Betonte v. Mnsten Coal Co. 

Boll on v. Coming Glnss Works. 

Borer v. Barrett. 

Campeuclla v. Tibby-Brawuer Glass Co. 

Carlin v. American International Shipbuilding Cur p. 

Cawle.v v. American Railway Esprcss Ci>. 

Charsikirkos v. John F. Casey Co. 

Ciri K liana v. Pennsylvania R. R. Co. 

Coulan v. Puritan Chemical Co. 

Crip pen v. Porter. 

Cmtcliley v. American International Shipbuilding Corp. 

DcHart v. Liberty Rait Co.' 

Dellapennn v. Hillmnn Coal A Coke C«. 

Detriek v. Philip Morton Co. 

Dcvett v. W. H. Hughes Coal Co. 

Donnelly v. Mc Arthur Bros. Co. 

Druga v. Mather Collieries Co. 

Durain v. State Workmen's Insurance Fund. 

Felty v. TIockfMtmith Wheel & Mine Car Co. 

Ferdisko v. W. F. Trimble & Sons Co. 

Fox v, DeLong & Fox. 

Frankowski v. W. B. Mr Clean Manufacturing IV 

Fruvel, cl. nl. v. J. Edward ITome * Co. 

Freeman v. State Workmen's Insurance Fund. 

Fultz, et al. v. Truscon Steel Co. . 

GroxHtnaii v. Brcneman. 

(•titlirin v. Thompson*Stcrrctt Co. 

.Harrington v. II. O. Wilbur & He Inc. 

Holob v. Buck Run Con! Co. 
Jesulcs v. Testa Coal Co. 
Jewell v. Phoenix Iron Works. 
Johnston v. Pennsylvania K. R. Co. 
Kerwin v. American Rnilway Express Co. 

Kube v. John J. Felin & Co. 

Kwetkauskie v. Lehigh Valley Coal Co. 

Lonte v. Lucci. 

Lomax v. Mullen. 

Lyln v. State Workmen's Insurance Fund, 

Malloy V. Macnfee, 

Marcello v. Arthur McMutlen Co. 



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Marks v. U. S. Metallic Packing Co. 

Masulewick v. Newton Coal Co. 

Miller v. Conner. 

Miller v. Philadelphia & Reading Coal & Iron Co. 

Mullin v. Repplier Coal Co. 

Mulnix v. W. D. Byron & Sons, Inc. 

McCarthy v. Hotel Henry Co. 

Nany v. Buck Rnn Coal Co. 

Noonan v. Philadelphia & Rending Coal & Iron Co. 

No wo ski v. Pennsylvania Rubber Co. 

Ordofoski v. Philadelphia & Reading Coal & Iron < 

Pnjak v. Millson. 

I'nterno v. Lenox Coal Co. 

I'athiga v. Central Coal Co. 

Reber v. Sherman. 

Redmond v. Belmont Iron Work*. 

Richmnii, et. al. v. Cramer & Roller. 

Roach v. Oswald Lever Co. 

Roher, et. al. v. Roekhill Coal & Iron Co. 

IlusIoMiik v. Kiskiminetas Springs School. 

Snmoskie v. Philadelphia ft Reading Cool & Iron Co 

Siko v. Brndcnville Coal & Coke Co. 

Sii.ior.mn v. Philip Moiton Co. 

Smith v. Kistler, Leah & Co. 

Solomon v. Jersey Cereal Food Co. 

Staymates v. Bachman, Riidert ft Co. 

Stitzer v. Philadelphia ft Reading Cual & Iron Co. 

Storch v. Whitcbill. 

Swift v. Cook. 

Taylor v. State Workmen's Insurance Fund. 

Tcrramin v. Pennsylvania R. R. Co. 

Thompson v. Excelsior Laundry Co. 

Tomori v. Pittsburgh Coal Co. 

Walltuse. v. Philadelphia & Reading Coal & Iron Co 

Whelen v. Eastern Coal Pock Co. 

Williams v. Pittsburgh Coal Co. 

Yancbes v. Philadelphia & Reading Coal & Iron Co. 



In tho following cast's the Board affirmed the Referee's disallow- 
ance of compensation: — 
Barclay v. Jones ft Luughlin Steel Co. 
Black v. Black Drilling Co. 
Bnrton v. McLaughlin Contracting Co. 
Carr v. American Stores Co. 

Casuccio v. Birdsboro Steel Foundry & Machine Co. 
Chase v. Sergeant Class Co. 
Chappcrs v. Merchant Shipbuilding Corp. 
Chupek v. Delaware & Hudson R. R. Co. 

Connors v. Bryn Mawr Ice Mnmifnrl tiring & Cold Storage Co. 
Connors v. Ilcppcn stall Forge & Knife Co. 
Crossley v. State Workmen's Insurance Fund. 



Diehm v. Philadelphia ft Reading Ry. Co. 

inamond v. Friends Institute for Feeble-Minded. 

Dolter v. Frederich. 

Enrley v. Pennsylvania Coal Co. 

Eberl t. A. 0. ft Win. Han. 

Farley v. Atlas Powder Co. , 

fielgood v. Gel good Bros. 

II orris v. Baldwin Locomotive Works. 

Hoye, et. al. v. D. L. Ward Paiier Co. 

Hughes v. Pressed Steel Car Co. 

Hunter v. Wm. Sellers & Co. 

Joeat v. State Workmen's Insurance Fund. 

Kasko v. Keasbey ft MattUon Co. 

Keteski v. Delaware, Lackawanna & Wrslern R. R. Co. 

Kindall v. Pennsylvania R. It. Co. 

Kinsell v. United Iron ft Steel Co. 

Krie v. State Workmen's Insurance Fund, 

Levin v. Philadelphia ft Reading Ry. Cu. 

Lloyd v. Hudson Coal Co. 

Monoghan v. Thompson- Con nellsvilli- Con) ft Coke Co. 

Moore v. Philadelphia Rapid Transit Co. * 

Moore v. Philadelphia ft Reading Cool ft Iron Co. 

Mutts v. Sera n ton Coal Co. 

Pattiaon v. Pattison National Bank. 

Peasley v. Conn. 

Peatinick v. West End Coal Co. 

Petroski v. Columbia Textile Co. 

Polick v. Pennsylvania Coal Co. 

Pothering v. Philadelphia ft Reading Conl ft Iron Co. 

I'rokokovioh v. Morrellvillc Coal Mining Co. 

Rabo v. Merchant Shipbuilding Corp. 

Redeman v. Hcrtsberg. 

Rood v. American Sheet ft Tin Plate Cu 

Rogers v. New York ft Pennsylvania Co. 

Rouch v. Peale, Peacock ft Kerr. 

Ruggiero v. Pennsylvania Rubber Co. 

Scrlick v. Hammer. 

Silinsky t. Philadelphia ft Reading Coal ft Iron Co. 

Slaughter v. Sun Shipbuilding Co, 

Smiley v. Handlon. 

Smith v. Punxsutawney Board of Educulion. 

Sojko v. Carnegie Steel Co. 

Spafadore v. Webster, Monessen, Belle Vernou ft Fayette City Street Ry. Co. 

Stephens v. Carnegie Steel Co. 

Strine v. York Manufacturing Co. 

Szuberla v. National Car Wheel Co. 

Wydra v. Susquehanna Collieries Co. 

Zuppa v. Lehigh Silk Dyeing Co, 



In the following case the Board modified the Referee'i award of 
compensation : — 

Onrran v. Dreading Bros. Co. 



Id the following cases the Board affirmed the Referee's refusal to 
modify, reinstate or terminate an agreement or award: — 
Almonte v. Congoleum Co. 
Baker v. Mellon-Stuart Co. 
Battagliu v. Atlantic Refining C*. 
Beatty v. Turner Construction Co. 
Begliomini v. Pittsburgh & Eastern Coal Co. 
Bender v. Miller. 

Billingsley v. Lehigh Structural Steel Co. 
Bond r. Lakeside Forge Co. 
Bryant v. Murphy, Cook ft Co. 
Carroll v. Thompson. 
Clarke v. Clearfield Opera House Co. 

Counaeller v. Wm. Cramp ft Sons Sliiii & Kiigin* Building Co. 
Devine v. Standard Construction Co. 
Diskin v.' Hudson Conl Co. 
Johnson v. Shoemaker Coal Mining Co. 
Karamanis v. Lucius Engineering Co. 
Kovalski v. ML Pleasant -ConnellsviUe Coke Co. 
Marks v. A. M. Byers Co. 

Margaretty v. State Workmen 'a Insurance Fund. 
Martin v. Baldwin Locomotive Works. 
Matuskedski v. Philadelphia Ceiling & Stevedoring Co. 
Moreni v. Turner Construction Co. 
Oliver v. Lindley Coal Co. 
Osborne v. Independent Pier Co. 
Petsego v. Hudson Coal Co. 
Seas t. Easton Brass ft Machine Go. 
Urbinovitch v. Lehigh ft Wilkes-Barrc Coal Co. 
Wesley v. Carnegie Steel Co, 
Vicaro v. State Workmen's Insurance Fund. 



In the following cases the Board affirmed the Referee's order 
modifying, suspending, reinstating or terminating an agreement or 
award : — 

Bomman v. Allegheny By-Products Co. 

Qutronavage v. Locust Mountain Coal Co. 

Cheely v. Westmoreland Oal Co. 

Clement v. Proctor & Schwartz, Inc. 

Crawford v. N. Y. ft Pa. Co. 

Deloksovich v. Pittsburgh Coal Co. 

Dnnlap v. Rochester ft Pittsburgh Coal ft Iron Co. 

French v. Fossett. 

Genoa v. Lehigh Portland Cement Co. 

Haynes, et al. v. Clydesdale Brick ft Steue Co. 

Gryger v. Merwin Man ufactu ring Co. 

Granger v. Philadelphia Rapid Transit Co. 

Judge t. VanTive. 

King v. Rainey-Wood Coke Co. 

Koanovich v. Lehigh Valley Coal Co. 

Digilizeciov G00gle 



Lnngin v. Dnquesne LirIiI Co. 

Loekhart v. (Iiu 1'nwliiij; ( 'miikI riir-tiim I'.i. 

Lumlcy v. behigh Vallisy It. 1!. Co. 

Madole v. American Railway Express Co. 

Marcoski v. Valley Smokeless Coal Co. 

May v. State Workmen's Insurance Fund. 

Mockns v. State Workmen's Insurance Fund. 

Morgan v. Roxford Knitting Co. 

Morton v. American Stores Co. 

McQuillnn v. National Analinc & Chemical Co. 

Pnvis v. American Chain Co. 

Per am bo v. Cambridge Coal Co, 

Portnoy v. L. Needles Erooker Co. 

Pronncgg v. Niles-Bement-Pond Co. 

Roddy v. Cross Keys Restaurant. 

Rondatz v. Pennsylvania Coal Co. 

Rnrtolii v. II ii. (son Coal Co. 

Scott v. MeKenno Hrass & Manufacturing Co. 

Senis v. Westinghousc Electric & Man ufnctu ring Co. 

Stewart v. Wanamaker. 

Sugnrman v. Snare & Trieste Co. 

Touzour v. Traylor Shipbuilding Co. 

Yanl-iuven v. Hyde. 

Volpi v. H. P. Watson Co. 

Wenrich v. Ilnck Run Coal Co. 

Ymmscliik v. Savage Arms Corp. 



In the following cases the Board reversed the Keferee'e award of 
compensation: — 



Ilromunto v. Philadelphia & Rending Railway < 
Rrb v. Philadelphia & Rending Railway Co. 
Pnrily, et al. v. Erie Specialty Ca. 



In the following case the Board reversed the Referee's disallow- 
ance of Compensation: — 

Lindway V. Pennsylvania Co. 



In the following case the Bdard reversed the Referee's reinstate- 
ment of compensation agreement: — 
SHwffel v. Pcnn Rednctfon Co, 



In the following case the Board upon hearing, refused to open 
award of the Referee: — 
Reap v. Lehif-h Valley R. R. Co. 

DigiiizeciDv G00gle 



In tlie following canes the Board dismissed petitions for review: — 

Anderson v. Jones & Laughlin Steel Co. 

Berry v. Baldwin Locomotive Works. 

Cnrtwright v. W. S. George Pottery Co. 

Chahulsky v. Cambrin Stoel Co. 

Churovich v. American International Shipbuilding Corp. 

Fetrow v. Harrisburg Gas Co. 

Giordano v. Westing!] ousc Electric & Man ufactu ring Co. 

Harrison v. Mercer Iron ft Coal Co. 

Hoehmnn v. American Interniitionnl Shipbuilding Corp. 

Ilolta v. Freiliofer Baking Co. 

James v. Hessler Laundry Co. 

Jordan v. South Fork Coal Mining Co. 

Koenig v. Edw. G. Budd Manufacturing Co. 

Koscreliak v. Thos. Wobitenliolmc ft Sons. 

Kowalski v. Wm. Cramp & Sons Ship & Engine Building Co. 

Lesko v. Pittsburgh ft Lake Erie R. R. Co. 

Lukowski v. Equitable Illuminating Gas Light Co. 

Maguire v. Midvale Steel ft Ordnance Co. 

Marttild v. Irwin ft Leighton. 

Mullen v. Pennsylvania R. R. Co. 

Murdoch v. State Workmen's Insurance Fund. 

McOormick v. American International Shipbuilding Corp. 

Neff v. Baldwin Locomotive Works. 

Poolcy v. Atlantic Fruit Co. 

Roach v. Standard Tin Plate Co. 

Rotnana v. Youghiogheny ft Ohio Conl Co. 

Satella v. Pennsylvania Coal & Coke Corp. 

Seicb v. Union Coal ft Coke Co. 

Sheehan v. Geo. W. Smith ft Co. 

Shoe v. A. O. Wire, Inc. 

Schultz v. Classmirc, 

Stinkola v. Republic Iron & Steel Co. 

Thies v. Budd Wheel Corp. 

Usantak v. n. Sofranscy Co. 

Vargasvn v. Tindel-Morris Co. 

Weir v. National Mining Co. 

Weissinger v. American International Shipbuilding Corp. 

Williams v. Sh infield. 

Wonderly v. Harrisburg Pipe & Pipe Bending Co. 

Tetter v. American International Shipbuilding Corp. 

Zippillo v. Worth Bros. Co. 

Zoofin v. Dill ft Collins Co. 



In the following cases the Board upon review disapproved, modified, 
reinstated, suspended or terminated agreement, final receipt or 
award : — 

Byera v. Bethlehem Steel Co. 

Evans v. American International Shipbuilding Corp. 

Fronenk v. Imperial Woolen Co. 

Garvin v. Oliver Iron ft Steel Co. 



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4(H) 

Getty v. Contra) News Co, 

Gil more v. Murphy. 

Kasperavich v. Lehigh Volley Conl Co. 

King v. Levin. 

Leibcnt<pcrger v. Empire Iron & Steel Co. 

Mirliui'lps v. Aetna Foundry. 

Motley v. Darkwalor Coal Co. 

O'Neill v. Philadelphia Rapid Transit Co. 

Reynolds v. Stroup. 

Sarnia r. Philadelphia & Rending Coal * Iron Co 

Stimpson v. Ellwood Lumber Co. 

Vannon v. Keystone Slate Construction Co. 

Walukenls v. Lehigh Valley Co. 

Walukenis v. Lehigh Valley Coal Co. 



In the following cases the Board ordered re-hearings by the 
Referee's : — 

Boyle v. MeDermott Bros. 

Broadbent v. Alien town Packing Box Co. 

Budgoskey v. Union R. R. Co. 

Costella v. State Workmen's Insurance Fund. 

Daniels v. Pittsburgh Coal Co. 

Hendershot v. Davis Automatic Cradle Co. 

Hokolo v. Pennsylvania Smelting Co. 

Johnson v. General Electric Co. 

Josephitc v. Pittaburgh Coal Co. 

Lipscomb v. U. S. Aluminum Co. 

Mullen v. Bethlehem Foundry & Machine Co. 

Murphy v. Barber Painting Co. 

McCloskey v. State Workmen's Insurance Fund. 

Newcomb v. Scranton Coal Co. 

Ossoga v. Buck Ridge Coal Co. 

Picciani v. Pittsburgh Steel Co. 

Prista v. Liberty Coal Mining Co. 

Shelton v. Keystone Trap Rock Co. 

Sbuiio v. Hoopoe & Tawnsend. 

Snyder v. Harbison -Walker Refractories Co. 

Stevens v. Maxwell. 

Stritoff v. T. II. Quinn & Co. 

Tulsa v. Republic Iron & Steel Co. 

Zanmizzi v. Red Bank Coal Co. 



In the following cases the Board, upon hearings de novo, allowed 
compensation : — 

Boyce v. Win. Cramp & Sons Ship & Engine Building Co. 

Brennemau v. Walton. 

Frommcr v. Wnnamnker. 

Ivory v. Pen nock. 

Kobosld v. Hazel Atlas Glass Co. 

Monties v. Barrett Co. 

Palmer v. Bella Mill Coal Co, 



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In the following cases the Board, upon hearing de novo, dis 
allowed compensation: — 

Dennett v. Philadelphia & Reading I(y: Co, 

Finkelstein v. Kiiton. 

Leamy v. Norriatown Service Garage. 

Suj-dcr v. Elk Tanning Co. 

Kollar v. Hodstn Goal Co. 



In the following cases the Board, upon hearing de noro, suspended 
an agreement for compensation : — 
linrtoii v. Stale Workmen's Insurance Fund. 
Leese v. Jos. Keppennan ft Sons. 



In the following case the Board, upon hearing de novo, refused to 
reinstate a compensation agrement: — 
Forman v. State Workmen's Insurance Fund. 



In the following case the Board refused petition for new hearings :- 
King v. Ingrrsoll-Rand Co. 



In the following cases, upon agreed facta, the Board allowet 
compensation : — 
Bricker, et al., v. Ruth. 
Hare v. Bradenville Coal & Coke Co. 
Peal v. Donaldson. 
Pobloskie v. Equitable Coke Co. 



In the following cases, upon agreed facts, the Board disallowed 
compensation : — 
MoDenkopf v. Fisher. 
Pearsall r. Home-Crest Mills Corp. 



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INDEX. 



HOARD DECISIONS 



ACCIDENT, 

Jarring of electric reamer — infection of hnnd 

Fall probably due to apoplexy resulting in concussion of brain, award, 



AGREEMENT. 

May be reinstated, after »rder of termination hy Referee affirmed 

by Board, 

Verbal agreement upon which compensation was paid and terminated 
by final receipt, reinstated 

AGRICULTURAL EMPLOYMENT. 

Employe engaged for farm work, injured in lumbering operation con- 
ducted by employer— award 

Employment on dairy farm, '. 

ALIEN DEPENDENTS— NON RESIDENT. 

Marriage may be proved by record of civil or religious ceremony, . . 
Credit allowed for prior commutation upon change of status to "non 

resident alien," 

Statute of limitations suspended during state of war, 

Alien parent not entitled upon removal to foreign country, 

Change of status of widow upon removal to foreign country, 

Commutation to widow intending to return to native country to be 

made on basis of present status 

Compensation disallowed to non resident alien parents 

Consul may file claim for foreign dependents, 

ALIEN RESIDENT EMPLOYE. 

Status not changed by removal to foreign country, 

AM- LOSS OF USE OF. 

Loss of use of arm denied— disability compensation reinstated 

Compensation allowed for time lost account injury to arm of which 

claimant had previously lost use, 

Arm useless in class of work for which claimant is fitted, 



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ASSAULT. 

Employe returning to place of employment after working hours, 

assaulted by foreman — award, 72 

AWARD. 

To parents runs for 300 weeks regardless of age of deceased emplsye, M 

Two accidents within ten day perisd — compensation awarded from 
tenth day after first accident Sflfi 



CITIZENSHIP. 

Child born in United 8tates of foreign parents, 

CLAIM PETITION. 

Filed by wife of mentally incompetent emyloyc, 
By consul, for foreign dependents, 

COMMON LAW MARRIAGE. 

Protf necessary to establish 



COMMUTATION. 

Calculation of upon remarriage of widow 54-57-101 

Rights of minor children not affected by commutation ta widow 02-1 T.7 

Credit allowed in re-adjustment upon change of status to "non re- 
sident alien," ~. 148 

Discretionary with Raard, Indemnity bond not required 204 

To alien dependent about to return to native country, made on basis 

of present status 327 

Allowed to provide far return to native country 355 

CONTRACTOR. 

Member of firm of brick-laying contractors injured while engaged 
as employs of borough „ 288 

COURSE OP EMPLOYMENT. 

Accident on way home from work, on premises of employer, 48-2SN 

Fire in employer's plant during lunch hour-employe burned to death 

attempting to recover personal belongings — award affirmed 52 

Injury sustained while engaged in tussle with fellow employe award 

affirmed 54 

Caretaker picking cherries for personal use — award 77 

Accident during play at noon hour on premises, 82-184-373 

Driver of automobile truck killed before reporting for work- — dis- 
allowance 97 

On way home from work, riding cars of defendant — presence not re- 
quired — disallowance 88 

Elevator operator, after checking sut, found dead on premises, die- 
allowance 200 

Injured while performing act of self ministration 207-22A 

Leaving premises at noon hour — fall on premises, 225 

Accident while removing tools from mine— disallowance, 230 

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405 

Fage. 
Killed while sleeping in bank house furnished by employer — presence 

not required, 234 

Accident while asleep at place of work, .254-255-347 

Play during interval while waiting for wark, 265 

Accident while being transported by employer to place of work, 260 

Shear cutter, on wrong aide of machine, contrary to arders 263 

Full from horse on way home from work aver highway on which 

claimant was employed 2S5 

Missionary injured on way home from services, 300 

Pastor injured while making repairs to parsonage, 328 

Body found wrapped around elevator shaft — presumption of death in 

course of employement, 334 

Injured while attending continuation school 360 

Employe found dead — presumption of accident in course of employ- 
ment 364 

Riding home on "lokey" contrary to orders — disallowance 380 

On way home from work, injured an premises by operation of em- 

plovers business, presence not required 3V0 

COSTS. 

Disallowed when not filed as required by rules of Board, 44 



I >E PENDENCY— CHILD. 

Dependency of child presumed 31-342 

Deceased in loco parentis to child although father of child was living, 75 

Deceased not living with wife — children born after separation 103 

Posthumus child born after remarriage of widow 176 

Award to nephews and nieces to whom deceased steod in loco parentis 200 
Minor child living with grandparent, compensation awarded for death 

of mother 342 

Proof required to establish relationship, , 382 

I 'KPENDENCY— PARENT. 

Aged mother — no estate — supported by deceased and other children, 

partially dependent 65 

Compensation to be paid for 300 weeks regardless of age if deceased 

employe, 84 

Father and several sons, including deceased, all contributing to support 

•f family — award 170 

Dependency shown, release not valid 211 

Dependency presumed where minor has been contributing to support 

of parents, 274 

"Proof required to show dependency upen son over twenty-one, 279 

Burden of proof not met, 80B-377 

Step-mother of deceased not entitled ta compensation 390 

I >KPENDENCY— WIFE. 

Living apart from husband — actual dependency not shown, 120-382 

Alleged common law marriage — meretricious relationship — disallow- 



Living apart — wife self supporting — disallowance 260-277 

Marriage after accident which resulted In death of employe — disallow- 
ance, . . . : 292 

DISABILITY. 

Skilled mechanic seriously incapacitated, furnished light employment 
until by general reduction of fores he was discharged, full compensa- 
tion restored 74 

Employer not obliged to furnish employment to establish degree of 

disability 7H- 711 -201-299 

Disability due in muscular atrophy. Dot related tn iiccidcnt, 95 

Payments for partial disability suapended during absence of claimant 

on visit to Inland 100 

Slight deformity of sli<nilikr--!ii-nriog slightly impaired no disability 130 

Passing physieal examination for army service not conclusive evidence 

of termination of disability 136 

1'inneil undir rock- In-art and lung mndilion. prei i»us good health. 148 

Degree of disability— how to be determined when employment cannul 

be furnished 154 

Final receipt terminating compensation three months in advance set 

aside upon proof of continued disability 181 

Duty of employe to accept employment when offered, to determine 

rate for partial disability 199 

Wrenched back — no proof of disability beyond ten days, 233 

Burden upon employe to establish degree of disability, 242-349 

Unemployment due to industrial depression - no disability dm- to 

accident, 299 

Due to causes other than injury by accident 303-323 

Final receipt set aside upon pmof of continued total disability, .... 369 

Recurrence of — final receipt set aside, 374 

Accident contributing cause of 386 

Injury while engaged as tool drfsser— now engaged at farming- 
disability terminated, 196 

DISEASE OR INFECTION ALLEGED CAUSED OR AGGRAVATED 

BY ACCIDENT. 

Pulmonary tuberculosis — lowered vitality — -award 42 

Tubercular peritonitis — following blow from automobile crank — 

lowered vitality— a wanl 88 

Muscular atrophy — not due to accident 95 

Bursting of aneurism caused by strain, 108-110 

Lead poisoning — occupational disease — disallowance 115 

Neuritis in arm, resulting from heavy lifting, 122 

Neurasthenia — physically able t.t perform labor, J23 

Acute nephritis Mowing arsine gas poisoning 137 

Pneumonia following exposure, no accident 145 

Heart and lung condition, caused er aggravated by injury from full 

of rock 148 

Tubercular condition aggravated by sprained ankle and resulting 

osteomylitis, 152 

Death from infections meningitis — no relation to injury : . , [172 

Iliac abscess from fractured ribs — award, .\ '}-. V S 185 



Blood stream i' :'■ iction u. evidence of accident 

Scarlatina — Erythema -110 cut cir nbrimio"* disullonancc 

Brain abscess heat r ibau-'tion -disHllowanei' 

Death from diphtheria while being treated in hospital for injur;, . , 

Blood poisoning, failure to prove accident, 

Death from acute dilatation of heart claimed due to inhalation of 

poisonious fumes — disallowance , 

Pneumonia -follow ing accidental netting and exposure lowered n- 

(,-nniHT — rmised by or development accelerated by blow 

I'lir-.itm ir;i Mowing severe cut and Ion* of blood lowered iilnlil>. 

Pemphigus (skin disease) fulnuing cuIb tin c.iusnl connection 

Pneumonia following fall, injur; to chest and welting, 

Neuritis km o|> by accident not cause of death 

Systemic infection — not affected by accident 

Cancer, deuth from — accident not inn tributary cansc,. ,. 

Sjjtemio eomlilion nggravsled — low nf eye 

Diabetes and Arlerio sclerosis nggruvati'd by injury 

Tuberculosis — resulting from inhalation of poisonous gas fames, -. 
Appendicitis — evidcni-e not sufficient to show caused or aggravated by 

accident, 

Cancer — aeident not contributing cause 

Lobar pneumonia no competent evidence of accidental origin 

Artcrio Sclerosis frill — concussion of brain *. 

Tuberculosis following injury when cranking car 

Neurotic condition aggravated by injury, 

Petit mat or •'•ipelV- -accident contributing cause 

Miocuruitis — endocarditis — chronic nephritis — accident contributing 



DISOBEDIENCE OF ORDERS. 
Not bar to compensation, . . . 



EARNING POWER. 

Employe directed to secure employment to demonstrate loss in earning 

power 79 

How to be ascertained when employment is not available, 154 

Burden of proof upon employe to establish degree of loss, 201-242 

Employer not obliged to furnish employment lo fix loss of earning 

power 78-79-201-299 

Does not affect award for loss of member, 329 

No loss in earnings — compensation disallowed, 360 

EMPLOYER— EMPLOYE. 

Skilled mechanic engaged in business, called by oil drilling company 

to repair machinery, 32 



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Taking out coal — paid by the bushel— employe, 48 

Employed to deliver papers on Sunday only 110 

Proof i..-quiri-il to establish relationship, 159 

Claim filed against wrong employer, 194 

Member of firm of brick laying contractors injured while engaged im 

employe of borough 280 

EVIDENCE. 

Bursting of aneurism due to stain in lifting adding machine — hear- 
say testimony corroborated by surrounding circumstances, 110 

Hearsay testimony, unsupported by competent evidence — disallow- 
ance 132-187-188-241-271-355 

Passing physical examination for service in army not conclusive evid- 
ence of termination of disability, 138 

Found dead under car at place of employment— presumption of 
accident, 288 

Not sufficient evidence that disability, if any, is due to injury by 
accident 303 

Not sufficient evidence of accidental injury (hernia) to warrant 
award 305 

Not sufficient to establish parent dependency .'106-377 

Body found wrapped around elevator shaft — no witnesses to accident — 
presumption, 334 

Appendicitis — no evidence of accident 351 

Cancer — no evidence of accident, 352 

Dead body of employe found — presumption of death in course of em- 
ployment, 364 

EYE— LOSS OP USE OP. 

Glasses necessary to produce working vision — lack of co-uri I i nation — 

award for loss of eye, 63 

Loss of eye, sight of other eye having been previously lost — not total 

disability 00 

Award for loss of eye will only be made when condition is shown to be 

permanent, 191 

Traumatic cataract 216 

Eye unfit for specialized work in which employe was engaged before 

injury, 331 

Systemic condition aggravated by accident, resulting in loss of, .... 340 



PINAL RECEIPT. 

Improperly executed, set aside 71 

No evidence of Injustice done by aigning of final receipt, petition to 

set aside dismissed 71 

Final receipt terminating agreement as of date three months in ad- 
vance — continued disability 181 

Set aside upon proof of continued disability 369 

Set asfde— award for loss of hand 372 

Set aside — partial disability awarded I 374 



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FUNERAL EXPENSES. Page. 

May be colected by mhiiiiiistratrii 'HI 

No reduction for medical expenses paid during life time of deceased. !)-". 
To be paid to "Personal representative'* only if lliere are no de- 
pendents ., 118 

Award for — must not include expenses of medical and hospital 

' treatment rendered during life time of deceased, 182-345 

FOOT— LOSS OF USE OF. 

Partial amputation— loss of motion or control of foot 253 

FOREIGN CONSUL. 

Certificate of Secretary of State, sufficient credentials 15* 

G. 

GAS POISONING. 

Poison by inhalation of arsine gas developed in tank containing mil- 

phuric acid 137 

Inhalation of poisonous gas fumes — lack of evidence, 241 

Exposed to carbon monoxide and carbon dioxide — subsequent insan- 
ity — nt causa] connection, 324 

Followed by tuberculosis 348 

H. 
HANI>— LOSS OF USE OF. 

Girl employed in factory, also as organist — loss of thumb and two 

fingers, 67 

Pressman, three fingers amputated— award for leas of hand 87 

Loss of three fingers — unable to follow former employment 372 

BEAT EXHAUSTION. 

Death from brain abscess — disallowance 205 

HERNIA. 

Claimant directed to submit to operation 2liS 

Not sufficient evidence of accidental origin to warrant an award, . . 143-305 

Resulting from fall 345 

L 
INSANITY. 

Fallowing exposure to poisonous gas fumes no causal connection, . . 324 

Committee appointed by Board to collect compensation due insane 

employe 363 

Burden of proof to show connection with accident not met 361 

INSURANCE CONTRACT, 

Agreement executed by insurance company by mistake, on belmlf of 

employer not insured 3SK 

Digiiizecioy G00gle 



410 

INTER-STATE EMPLOYMENT. 

Uoard wil not consider nature of employment when mil pleaded 

dsfvUM 

Kuuml house employe injured while delivering packing lo train to 

Our inspector, on way to inspect inter-state cars 

Police office o flier r in employ of railroad company, inspecting in 

state cars, 

Engineer under orders to deliver engine to station 10 limit' in 



JARRING. 

Infection of Inind resulting 'rom jarring of machine, 

L. 
LEO— LOSS OF USE OF. 

Fracture above knee — imperfect union — loss of control at knee, . . 
Paid compensation for 215 weeks for injury to leg— petition to termiu- 

Permanent ankylosis of ankle— same earning capacity, 

LIMITATION— STATUTE OF. 

Verbal agreement, terminated by final receipt, reinstated after more 

LOCO PARENTIS. 

Deceased in toco parentis to cliild whose father was living at time 

of accident, 

Award to nephews and nieces of deceased 



MARATIME EMPLOYMENT. 

Award, unnppealed from, cannot be terminated upon allegation of 

maratime employment 120 

Employed on house boat — accident on land 120 

Stevedore, placing pole between ship and wharf — disallowance 301 

MARRIAGE. 

liny be proved by record of court or religions ceremony, 107 

MEDICAL AND HOSPITAL SERVICES. 

Refusal to submit to reasonable operation, right to compensation 
forfeited ■10-10 , J-12S-L'(K 

Employe may procure and recover coat when not furnished by em- 
ployer, 90-115-287 

Refusal to submit to third operation after two unsuccessful opera- 
tions^ — right to compensation not forfeited 127 

Employe may procure in emergency when company doctor cannot he 
located, 177 

Dependents cannot collect for service rendered during first ItO dnya 

in addition to $100 allowed for "last sickness and burial," .... 182-345 

Employer not liable for service rendered prior to notice of accident, 202 



411 

O. Page. 



OCCUPATIONAL OIKHA^E. 
Lead poisoning, 



OPERATION OF EMPLOYER'S BUSINESS. 

On way home from work, on premiss — struck and killed by cars of 

employer — award tifl 

On way home from wort, off premise*., struck by locomotive engaged 

in interest of employer award, 79-83 

On wrong side of machine, contrary to rules, presence necessary — 

award 2SS 

Body found wrapped around elevator shaft — presumption of death in 

course of employment 3-14 



PERSONAL REPRESENTATIVE. ' 

Funeral csiieiiws may be collected by administratrix of estate, 

PRACTICE AND PROCEDURE. 

Error to raise question of inter-state employment when not pleaded 
ns defense 

Evidence of dependency not sufficient, interrogatories ordered, . . 

Petition to withdraw record from Court for rehearing refused, ■ . 

Claim wrongfully brought against railroad — no amendment within year 
after accident, 

Findings of (net by Hoard upon evidence procured before Referee, .... 1 

Award, unappealed from cannot be terminated upon allegation of 
maritime employment 

Appeal filed more than ten days after decision of referee dismissed. 

Petition to file appeal nunc pro tunc must contain statement of 
evidence to be produced, 

Foreign Consul — proper credentials 

Refusal of award for ioas of member does [«•[ preclude claimant from 
recovering at later date if condition is then shown to bv permanint. 

Reinstatement of compensation agreement after termination by Referee, 
affirmed by Board 

Claim may be filed by wife of mentally iinMOipcti-nt employe 

Amendment to substitute guardian of mentally incompetent employe 
as claimant, 

Claim on appeal settled by agreement 

Petition for hearing de novo after affirmance by ihc Board of dis- 
allowance by Referee, refused . .... 

Petition filed by guardian of insane employe 



RELEASE. 

Release signed by parents who were ignorant of their rights t 
pencil ion not valid or binding ." 



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412 

REMARRIAGE OF DEPENDENT. Page. 

Commutation to widow, (Section 3071 64-101 

Rights uf minor children unou remarriage of widow IL' 

BIGHT Olf ACTION. 

Claim may be filed by wife as "next friend" 28» 

Ceases upon death of injured, except an lo surviving dtnendruts 174 



SUBROGATION. 

Settlement with third party by dependents without not 



SUSPENSION OP PAYMENTS. 

Authorized by Act, 

During visit of claimant to Ireland — affiru 



VIOLENCE TO PHYSICAL STRUCTURE. 

Bursting of aneurism caused by strain 108-11U 

Back strain — award 13£-' 

Jarring of electric reamer — infection of hand ItlG 



WAITING PERIOD. 

Two accidents within ten days — both causing disability. 



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