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Dimeglio v. Slonk Construction Co.

Decided: November 22, 1938.

ANGELO DIMEGLIO, PETITIONER-RESPONDENT,
v.
SLONK CONSTRUCTION COMPANY, DEFENDANT-PROSECUTOR



On certiorari.

For the defendant-prosecutor, Samuel D. Lenox.

For the petitioner-respondent, George Pellettieri.

Before Brogan, Chief Justice, and Justices Bodine and Heher.

Heher

The opinion of the court was delivered by

HEHER, J. This case arose under the Workmen's Compensation act of 1911, as amended. Pamph. L. 1911, pp. 134, 763; R.S. 1937, 34:15-1 et seq.

Concededly, the employe suffered a compensable injury on October 4th, 1934. He was obliged to cease work immediately. The employer provided medical service for approximately one year; and, on the mistaken supposition that the employe's weekly wage was $25, voluntarily rendered compensation

at the weekly rate of $16.67, for temporary disability over a period of sixteen weeks and permanent incapacity to the extent of five per cent. of total.

On a formal petition for compensation, presented on July 11th, 1935, the compensation bureau, after hearing, made an award based upon an additional ten per cent. of total permanent incapacity, or fifteen per cent. in all, and allowed a fee of $150 to the employe's counsel. The employer appealed upon the grounds that (a) the evidence did not warrant this finding of total permanent disability, (b) the weekly rate of compensation thus allowed was excessive, and (c) the counsel fee awarded was also excessive; and the Mercer Common Pleas, finding that the employe's weekly wage was $20, reduced the weekly allowance to $13.33, but otherwise affirmed the judgment. The employer thereupon sued out this writ of certiorari.

First: The initial point now made is that the proofs do not support the finding of total permanent incapacity to the extent of fifteen per cent., and therefore the award "is excessive and contrary to the weight of the evidence." We do not think so.

While the evidence is sharply in conflict, it is reasonably inferable that, as found by the compensation bureau and the Common Pleas, the employe suffered, as a consequence of the accident, a sacro-iliac strain, with traumatic arthritis of the right sacro-iliac joint -- i.e., a dormant diseased condition rendered active by trauma. Although but thirty-four years of age, he has not since engaged in manual labor; and there is uncontroverted evidence that, prior to the accident, he had worked continuously as a laborer for twelve years and had never suffered a disabling illness. The employer is put to the necessity of classifying the employe as a malingerer, but the proofs do not sustain the claim. Such behavior is abnormal. A normal person does not feign wholly disabling invalidism for a period of years merely to receive ...


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