On rule to show cause why writ of certiorari should not be allowed.
For the prosecutor, Nathan Rabinowitz and Isadore Rabinowitz.
For the respondent, John Pomfret, Jr.
Before Brogan, Chief Justice, and Justices Case and Heher.
The opinion of the court was delivered by
CASE, J. This is the return of a rule to show cause why a writ of certiorari should not issue to review a judgment of the Workmen's Compensation Bureau dismissing prosecutor's petition for a larger award based on alleged increased disability. Prosecutor did not take his statutory appeal to the Common Pleas, and his application for a writ is opposed
mainly upon that ground. He would justify that omission by the contention that the Deputy Commissioner rested the judgment of dismissal upon the latter's own examination of claimant's injuries in disregard of the uncontradicted testimony produced by the claimant; and that in doing so the officer acted without jurisdiction. The argument is intended, obviously, to bring the case within the scope of a jurisdictional controversy. For the reasons hereinafter given we think that the point is not sustained.
On June 4th, 1936, the petitioner suffered a compensable injury to his hand. On November 2d, 1936, he filed his claim petition with the Bureau. The determination by that tribunal on March 1st, 1937, was that he had sustained a 17 1/2 per cent. loss of his right hand, a partial permanent disability. Petitioner had contended, and produced medical testimony in support, that the permanent disability of the hand was 50 per centum of total. He appealed to the Common Pleas which, on September 23d, 1937, affirmed the award. Immediately, October 4th, 1937, prosecutor filed a second claim alleging increased disability. Prosecutor protracted the putting in of his proofs. On April 11th, 1939, he put himself on the stand and was examined; on April 25th, 1939, he produced and examined a fellow workman; on November 9th, 1939, he examined two medical witnesses. On December 5th, 1939, the Bureau filed its determination and rule for judgment which held in part:
"Counsel for the Respondent moved for the dismissal of the petition on the grounds that the Petitioner had failed to make out any case against the Respondent for increased disability. To the arguments presented on this motion by the attorney for the Respondent this Court must agree. From the testimony of the Petitioner and from the testimony of the doctors called in behalf of the Petitioner no increase of disability has been proven. The maximum estimates of disability which can be considered by this court in the trial of the present case, as alleged by the medical witnesses of the Petitioner, is no greater than the disability claimed by medical witnesses in behalf of the Petitioner during the course of the first trial held in this matter. The Petitioner presents
nothing on which this court could base an award in favor of the Petitioner and presents nothing that necessitates the Respondent calling any witnesses for contradiction.
"In addition to the foregoing this court personally carefully examined the injured hand of the Petitioner. The Petitioner was allowed 17 1/2% loss of the right hand by this court as a result of the original trial. From this personal inspection this court is of the opinion that the amount allowed the Petitioner originally was more than ample. As a matter of fact the Petitioner's disability does not appear at the present time to be equal to the amount awarded. The Petitioner presents evidence of less disability in his hand and from inspection of the Petitioner's hands this court is satisfied that the Petitioner is working and is using both hands in his work. In any event the Petitioner's disability from this court's examination does not amount to the award as originally made, and, as hereinbefore stated no medical witnesses ...