JOHN A. CHURCH vs. THE STANDARD CAST IRON PIPE AND FOUNDRY CO. Total disability-What constitutes-Practice before Referee -Admissibility of evidence - Failure of defendant to file an answer. A claimant who is by accidental injury totally incapacitated from following the only occupation for which he is fitted by training and experience, is entitled to compensation for total disability. If he should later acquire an earning capacity, compensation may be changed or discontinued upon petition and proof. It is proper for a Referee to consider the allegations of a claim petition as admitted and to refuse to admit testimony in contradiction of the averments of the claim petition, when no answer has been filed by the defendant. (For Report Appeal from Award of Referee, George C. Klaucer, District No. 1. Claim Petition No. 668. Affirined. of the Award of the Referee see 2 Dep. Rep. 2672). 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 earn 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. JOHN HALLIS vs. POLAND COAL & COKE COMPANY. Permanent injury-Injury to both feet-Total disability. |