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NOLAN v. HAKE ET AL. (07/21/55)

July 21, 1955

NOLAN
v.
HAKE ET AL., APPELLANTS.



Appeal, No. 72, Oct. T., 1955, from order of Court of Common Pleas No. 3 of Philadelphia County, June T., 1954, No. 4789, in case of William J. Nolan v. Frank W. Hake and New Amsterdam Casualty Company. Order affirmed. Appeal by claimant from decision of Workmen's Compensation Board. Order entered sustaining appeal and remanding case to board for award, opinion by MacNEILLE, P.J. Defendants appealed.

COUNSEL

Raymond J. Porreca, with him Raymond A. White, Jr., for appellants.

Lawrence I. Boonin, with him Carter & Boonin, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ross

[ 178 Pa. Super. Page 594]

OPINION BY ROSS, J.

In this workmen's compensation case, the claimant while acting in the course of his employment suffered an injury to the index fingers of both hands, resulting in the amputation of part of the first phalanges of both fingers. The parties entered into an agreement for the payment of compensation for an indefinite number of weeks. The claimant received payment thereunder for several weeks, and when he returned to work the employer and his insurance carrier filed a petition for termination of the compensation agreement on the basis that the claimant "had returned to work without loss in earning power". Claimant filed an answer denying the allegations of the petition and averring that he still suffered disability with attendant loss of earning power. After hearing, the referee concluded that the claimant had fully recovered from his injuries

[ 178 Pa. Super. Page 595]

    and entered an order terminating the compensation agreement. This action was affirmed by the Board but the court below reversed the Board and remanded the case for an award under section 306(c) of the Act. The employer and his insurance carrier thereupon took this appeal.

The only testimony before the referee was given by two medical witnesses for the appellants who testified concerning the amount of the phalange and finger which was removed from each hand, and the claimant who was called as on cross-examination for the purpose of showing that he suffered no loss of earnings. The medical testimony, a dismemberment chart and X-rays show that as to the fleshy pad of each of the index fingers there is a 50 per cent. stump remaining on the distal phalanges, but as to the right distal phalange there is a 90 per cent. loss of the bony structure, and as to the left a 70 per cent. loss of the bony structure. There is no dispute about the extent of these losses. Consequently, the question before us is whether these facts constitute a compensable loss within the meaning of that part of section 306(c) of the Workmen's Compensation Act, 77 PS sec. 513, which provides as follows: "For all disability resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows: ... For the loss of a first finger, commonly called index finger, sixty-six and two-thirds per centum of wages during thirty-five weeks.... The loss of the first phalange of the thumb, or of any finger, shall be considered equivalent to the loss of one-half of such thumb or finger, and shall be compensated at the same rate as for the loss of a thumb or finger, but for one-half of the period provided for the loss of a thumb or finger."

We are not concerned with the fact that the claimant has suffered no loss of earning power. Under section

[ 178 Pa. Super. Page 596306]

(c) compensation is payable irrespective of a claimant's actual disability or incapacity to labor. By this section, a fixed amount is to be paid without considering, but including, all incapacity to labor that may be connected therewith, whether such incapacity be total, partial, or no incapacity at all. Morrow v. J. S. Murray & Sons, 136 Pa. Superior Ct. 277, 7 A.2d 109; ...


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