BUSH v. LEHIGH BRICK COMPANY

Workmen's compensation — Disability — Partial — Award — Claimant's earnings — Form of award — Res judicata.

1. Where, in a workmen's compensation case, it appeared that the referee terminated a compensation agreement between claimant and his employer's insurance carrier and awarded $16.15 per week from a stated date, based upon a finding of 50% partial disability; that in March, 1950, the referee found that the 50% partial disability continued but by reason of outside earnings the claimant had a loss of earning power of only $7.11 per week so that compensation was awarded at the rate of $4.74 weekly, to continue until such time as the claimant's disability should cease or change in extent; that compensation was paid at this rate until the end of the 300-week period from the time of the accident; that three months thereafter claimant filed a petition for reinstatement of compensation upon the ground that the award failed to properly compensate him for his disability during the 300-week period; that at the hearing the referee found that the 50% disability continued until the end of the 300-week period but that the claimant's earnings during 1950 averaged $15.89 and during 1951, $30.06, concluded that claimant should have been paid at the rate of $16.15 per week during 1950 and $12.27 per week thereafter until the end of the 300-week period, and awarded claimant the difference between these amounts and the $4.74 per week actually paid him during the periods in question; and that the court below, on appeal from the decision of the Board reversing the referee, reinstated the referee's award, holding that (1) until claimant received the weekly compensation to which he was entitled, either by payment of compensation or the receipt of equivalent wages, the award could not be satisfied, (2) since the question was one of satisfaction of the award, it could be raised after the expiration of the 300-week period, (3) the fact that claimant's change in earnings was not related to any change in his disability or physical condition was of no importance, (4) the finding as to the amount of claimant's earnings was prospective and the order of March, 1950, was not res judicata, and (5) the fact that the form of the award was improper in that the referee did not make the award in the sum of $16.15 and suspend it as to the difference between that and $4.11 because of the earnings of claimant during the period, did not make the award res judicata; it was Held that the judgment of the court below should be affirmed.

Argued October 7, 1954.