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CURRAN v. WALTER E. KNIPE AND SONS (01/21/58)

January 21, 1958

CURRAN
v.
WALTER E. KNIPE AND SONS, INC. ET AL., APPELLANTS.



Appeal, No. 222, Oct. T., 1957, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1956, No. 122, in case of Frank J. Curran v. Walter E. Knipe and Sons, Inc., Pennsylvania Manufacturers' Association Casualty Insurance Company. Order reversed; reargument refused February 11, 1958.

COUNSEL

Paul H. Ferguson, with him James F. Malone, for appellants.

S. Robert Levant, with him Markovitz, Stern & Shusterman, for appellee.

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

Author: Woodside

[ 185 Pa. Super. Page 542]

OPINION BY WOODSIDE, J.

This is a workmen's compensation case in which the question is whether the board's finding that the claimant suffered the permanent loss of the use of his leg should be sustained.

The claimant, Frank J. Curran, broke his leg (fractured the right tibia and fibula) in the course of his employment with the defendant on January 30, 1952. He received workmen's compensation for total disability under an open agreement until October 21, 1953, when the defendant petitioned to modify the agreement alleging that Curran was no longer totally disabled. The referee, after hearing testimony, found as a fact that the claimant was still totally disabled, and dismissed the petition to modify. Upon appeal by the defendant, the Workmen's Compensation Board affirmed the findings of the referee, and on September 7, 1955, dismissed the appeal.

On October 24, 1955, the defendant filed another petition to modify, this time alleging that the claimant's injury had finally resulted in the loss of the use of his right leg. The referee found as a fact that "the claimant now suffers industrial loss of use of his right leg as a result of the accident." Upon appeal by the claimant to the board, it amended the above finding of the referee by deleting "industrial", and concluded that the claimant should be awarded compensation for the loss of use of his right leg. As this award limited the claimant's compensation to 215 weeks from February 7, 1952, instead of the longer period for which he might have received compensation for total or partial disability, he appealed the order to the Court of Common Pleas No. 2 of Philadelphia. That court first sustained the appeal and reversed the order of the board, and then amended its order and remitted the record to the board. The defendant appealed to this Court.

[ 185 Pa. Super. Page 543]

To understand the problem here involved we must examine section 306(c) of the Workmen's Compensation Act, 77 PS ยง 513, and see how it differs from paragraphs (a) and (b) of the same section.

The relevant parts of paragraph (c) are: "For all disability resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows: ... For the loss of a leg, sixty-six and two-thirds per centum of wages during two hundred and fifteen weeks ...

"... Permanent loss of the use of a hand, arm, foot, leg, eye, finger, or thumb, great toe, or other toe, shall be considered as the equivalent of the loss of such hand, arm, foot, ...


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