husband under such circumstances that there is a liability on the. part of defendant if the claimant was either wholly or partially dependent upon the deceased at the time of the injury which caused the death. The following is the exact language of the agreement which comes before us for interpretation: "Stephen Mikulasko deserted his wife in November, 1915, at Chicago. For a year and a half prior to the time his wife had been living in Tacoma and Mikulasko in Chicago. She returned to Chicago in October, 1915, when her husband deserted her because she was an epileptic. The last sum of money received by her was in January, 1916, at which time she received $3 for a period of three weeks. While in Tacoma she received on the average of $3 per week from her husband. Since the desertion she has been supported by the United Charities of Chicago, as she has been unable to work regularly owing to her disease." To construe our Act of Assembly we must follow the well known rules of interpretation as well as the precedent of Courts of competent jurisdiction. Sentiment can play no part in such mental processes. There must be no confusion between the marital rights of husband and wife under either common or statutory law and the obligations and benefits created by our Legislature under the Compensation Law. Section 307 of the Act of 1915 clearly states: "No compensation shall be payable under this section to It is conceded in this case that the widow was not living with her husband at the time of his death, therefore, it only remains for us to interpret the words "actually dependent upon him for support" and to determine whether or not under the facts of this case there was a dependency as contemplated by our Act. The law provides for the dependents of workmen who have met death as a result of an accident suffered in the course of employment, for then the industry in which they were engaged becomes responsible to their dependents because of the fact that they have actually lost something in that death; therefore, our legislation wisely provides that there is an obligation on the part of the employer to pay compensation to no one who has not suffered a loss in the earnings of that deceased workmen because of the fact of having received wages at the time of or immediately before the death, and not because of any right to receive any part of such wages if enforced by another tribunal, It has always been said by every Court in Europe and America, dealing with the subject of dependency under compensation laws, that dependency is a question of fact to be established by competent evidence and is not to be determined by the ordinary legal inferences following marital relationship. We have heretofore discussed the principles involved in this case in Boone v. P. R. R., 2 Dept. Reports, page 1072. Our position in that case was not at all modified in Miller v. Thropp, 2 Dept. Reports, page 2236, where we held. "That where a widow, prior to the accidental death of In the former case there was evidence of a renunciation of dependency. The wife had declined to receive and had actually returned money contributions made by the husband. She had moved out of the jurisdiction of the State and was engaged in occupation on her own account. We refused compensation. In the second case, Miller v. Thropp, supra, the claimant before the death of her husband, had complied with every provision of the law in order to have her status fixed as actually dependent upon her husband. At the time of the death he was in arrears of these payments ordered by the Court. It was the duty of an officer of the Court to enforce such orders. Compensation law to class her as a dependent would not compel her to sit down and starve rather than to undertake to earn a mere pittance for her own support. The same law will not say that she destroyed her dependency when she endeavored to earn a few dollars each week to sustain herself. In this case we awarded compensation. In the case under consideration we have a wife who has actually asserted her dependency by following her husband from Milwaukee to Chicago, where the last desertion took place. She is an epileptic. From the standpoint of all laws previous to the adoption of compensation she represented the most dependent of all women. A loathsome malady rendered her helpless and pitiable. For this reason, under the statement of facts, the husband deserted her and refused to return to a common habitation. She never renounced her dependency and she was unable, because of her disease, to even try to support herself. A public charity for the time being was supporting her. The hushand had recognized her dependency as well as his marital obligations by sending her some little money during January, 1916. Inasmuch as dependency is a question of fact in each particular case, we hold that the widow is here entitled to an award. The parties hereto may execute an agreement in accordance with this opinion. Moyer v. C. M. Dodson & Co. (3 Dept. Reports 185.) Burden of proof-Establishing a claim for compensation. An employe in ordinary health met with an accident on February 25, 1916, whereby he sustained a dislocated shoulder and some slight abrasions. He was apparently cured, when, on March 11, 1916, he suddenly dropped dead. The record failed to show any connection between the accident and the subsequent death. Held, that the burden of proof had not been met by the claimant and the Referee's disallowance of compensation was affirmed. Claimant represented by Roger J. Dever, Wilkes-Barre. OPINION BY MACKEY-Chairman-January 22, 1917. The above claim petition was filed by the wife of the deceased, Benjamin Moyer, in behalf of herself and her minor child, William. The deceased died suddenly on March 11, 1916. He had suffered an injury in the course of his employment on February 25, 1916. If the death was caused by the injuries sustained in the said accident or if thereby a pre-existing condition was excited into activity which was the immediate cause of the death, the claimant would be entitled to an award. She, however, must assume the burden of proof and there can be no award unless, having assumed this burden, she meets it with substantive and reliable testimony. An attending physician found a partial dislocation of the shoulder which was properly reduced and treated by him. This was the only injury he found. The deceased otherwise was in usual health. His pulse was normal and there was no evidence of any shock. A few days before the death of the deceased he was examined by Dr. Pearson, who found the shoulder properly in its place. There were some slight abrasions and a little soreness over the chest. The latter symptoms cleared up in six days. The deceased called upon this physician at his office ten different times. When the arm was taken out of the sling there was no com plaint of any other symptoms. The man appeared perfectly well with the exception of a slight stiffness of the shoulder that had been under treatment. Dr. F. W. Danser, the deputy coroner of Luzerne County, was called and there was presented to him a certified copy of the coroner's report in the case of the deceased. This witness identified the record as a correct copy and the same was introduced in evidence under the Board's interpretation of the duties of a Referee in respect to evidence, namely, to hear or admit any evidence even though it be hearsay which might tend to throw any light upon the subject under inquiry, reserving the right to ignore it in his award if it has not led to substantive evidence. This certificate stated that the cause of the death was "cardiac dilation superinduced by a mine accident." This report was received by Charles L. Ashley, Coroner of Luzerne County. This document standing by itself in the final analysis must necessarily be discarded as hearsay and upon it no definite finding can be based. But more than this, the witness proceeded to impeach the report by stating that the cause of the death of the deceased under the facts of this case might have been any one of twenty different ones and that he could attach no more importance to one than the other. Therefore in this case, we have an accident on February 25 last involving a workman in ordinary health. He suffered a dislocated shoulder and some slight abrasions. He was apparently cured. He dropped dead on March 11, 1916. These facts standing alone raise no presumption in favor of death by injury. The record fails to establish any line of causation between the injured shoulder and the death. The burden of proof has not been met and the Referee was right in his conclusions. The Referee is accordingly affirmed and the appeal dismissed. Church . Standard Cast Iron Pipe & Foundry Co. (3 Dept. Reports 179.) Award-Modification or termination thereof. If an employe, who was totally disabled at the time of the award subsequently acquires an earning capacity, his total disability will then have been reduced to partial disability and the award will be accordingly modified upon petition and proof. Practice When defendant files no answer to claim petition. It appeared from the record that there was no answer filed by the defendant to the claim petition, and that it had neither presented nor offered evidence as to the material allegations contained in the claim petition. Held, that the Referee was within the rules of the Board when he treated the allegations in the claim petition as admitted, and his award was affirmed. Appellant represented by L. M. Schoch, Philadelphia. OPINION BY MACKEY-Chairman-January 22, 1917. The Referee in this case made an award entirely consistent with the testimony. The evidence clearly shows that the claimant at the time of the award was entirely incapacitated from following that occupation to which he had devoted his life and for which only he was fitted by experience and training. If at any time after the award and before the expiration of the period of permanent disability the claimant acquires an earning capacity, or as a matter of fact, does carn anything by his own labor his permanent disability will then have been reduced to partial disability and the award can be accordingly modified upon petition and proof. The Referee was within our rules when he treated the allegations of the claim petition as admitted. If he declined to receive any testimony as against the averments of the claim petition he was clearly right. The record shows that there was no answer filed in behalf of the defendant. There is nothing in the record nor the facts to justify the statement in the defendant's specifications of appeal that an answer was filed with the Bureau at Harrisburg rather than with the Referee under the rules of the Board, and that because of this fact the Referee assumed that there was no answer filed and declined to receive any evidence to contradict the allegations of the claim petition. The record shows that there was no offer made of any evidence on the part of the defendant to contradict the allegations of the claim petition. The record does not show that any such answer was ever filed and there was no such allegation made before the Referee. The whole record shows that the defendant presented no evidence as to the material allegations of the claimant's petition and made no such offer of proof. The learned counsel for the defendant's insurance carrier has evidently fallen into an error in this respect inasmuch as his appearance has been entered since the hearing before the Referee. The Board, therefore, adopts the findings of fact and conclusions of law of the Referee and affirms his award. The appeal is accordingly dismissed. |