BANKOVICH v. WESTMORELAND COAL CO., 294 Pa. 167 (1928)

144 A. 103

Bankovich, Appellant, v. Westmoreland Coal Co.

Supreme Court of Pennsylvania.September 25, 1928.
November 26, 1928.

Workmen’s compensation — Compensation agreement — Evidence of earning power — Refusal to reinstate agreement — Referee — Practice, C. P. — Appellate court.

1. The Supreme Court will not reverse a judgment of the workmen’s compensation board dismissing an appeal from an order of a referee refusing to reinstate a compensation agreement, where the referee has found that claimant’s present earnings are not sufficient evidence of his earning capacity, and that claimant has not yet established his earning power within the meaning of the act.

2. In such case, the referee may properly order that the petition to reinstate be dismissed until such time as the claimant returns to work, and establishes a bona fide earning wage.

3. The matter involved in such a proceeding is one peculiarly for the compensation authorities.

Argued September 25, 1928.

Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.

Appeal, No. 103, March T., 1928, by plaintiff, from judgment of C. P. Westmoreland Co., Feb. T., 1928, No. 127, affirming decision of workmen’s compensation board sustaining order of referee dismissing petition to reinstate compensation agreement, in case of Nick Bankovich v. Westmoreland Coal Company. Affirmed.

Appeal from order of referee refusing to reinstate compensation agreement. Before COPELAND, P. J.

The opinion of the Supreme Court states the facts.

Appeal dismissed. Plaintiff appealed.

Page 168

Error assigned, inter alia, was judgment, quoting record.

John Roney Wright, for appellant.

R. K. Portser and R. Kirk McConnell, for appellee, were not heard.

PER CURIAM, November 26, 1928:

In this case, plaintiff petitioned for a review of a workmen’s compensation agreement entered into at the time of his injuries, but subsequently terminated, as the petitioner alleged, by mistake. The referee entered an order “That claimant’s petition to reinstate compensation agreement . . . . . . be dismissed until such time as [he] returns to work and establishes a bona fide earning wage, at which time this agreement may be further modified either by agreement of the parties or by petition to the board.” The board dismissed “without prejudice” an appeal from the above order, stating, “The referee has said that claimant’s present earnings, $1.50 a week, are not sufficient evidence of his earning capacity and that claimant has not yet established his earning power within the meaning of the act.” On appeal to the court below, the action of the board was affirmed, and claimant then filed the present appeal. The matter involved is one peculiarly for the compensation authorities; while there is no unbending rule governing such cases, we are not convinced of error in the disposition of the present application.

The order appealed from is affirmed.

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