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DOWNING v. LEECHBURG MINING COMPANY (06/15/61)

June 15, 1961

DOWNING
v.
LEECHBURG MINING COMPANY, APPELLANT.



Appeal, No. 138, April T., 1960, from judgment of Court of Common Pleas of Westmoreland County, July T., 1958, No. 587, in case of Peter Downing v. Leechburg Mining Company et al. Judgment reversed.

COUNSEL

Robert W. Smith, Jr., with him Smith, Best & Horn, for appellant.

Joseph M. Loughran, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Watkins

[ 195 Pa. Super. Page 576]

OPINION BY WATKINS, J.

This is an appeal in a workmen's compensation case from the action of the Court of Common Pleas of Westmoreland county, in reversing the decision of the Weorkmen's Compensation Board and entering judgment in favor of Peter Downing, the claimant-appellee, and against the appellants, the employer, Leechburg Mining Company and its insurer, the Old Republic Insurance Company.

The claimant, Peter Downing, 58 years of age, was injured in an accident, while in the course of his employment as a coal cutter for the Leechburg Mining Company on September 12, 1955. He caught his right hand and arm in a coal cutting machine, causing serious injuries to his fingers, hand, wrist and arm. He received a comminuted fracture of the distal end of the radius of the right arm and also a fracture of the right ulna. As a result of these accidental injuries, on March 24, 1956, his right little finger and ring finger were amputated.

An open agreement was executed by the claimant and his employer providing for payment of compensation on a total disability basis at the rate of $32.50 upon average weekly earnings of $102.90. Payments under this agreement were made from September 20, 1955 to and including May 21, 1956, for a total of 35 weeks in a total amount of $1137.50.

On April 3, 1956, the claimant returned to work as a greaser and on July 5, 1957, the employer filed a petition to terminate the agreement, alleging that disability ceased on May 22, 1956. The claimant's answer denied that disability had ceased and further claimed the industrial loss of the use of the injured hand. The referee determined that the claimant had suffered the permanent loss of the use of the right hand and entered the following order. "The defendant is hereby directed to pay compensation to the claimant for loss of use of

[ 195 Pa. Super. Page 577]

    right hand for 175 weeks, at the rate of $32.50 per week, commencing September 20, 1955 and continuing until the claimant shall have received the sum of $5,687.50. Further, the defendant is directed to take credit for compensation payments heretofore paid in the amount of $1,137.50."

On appeal, the Wormen's Compensation Board reversed the award of the referee terminating all compensation payments as of March 22, 1956. The Board did this by setting aside the referee's sixth finding of fact which reads as follows: "SIXTH: That after careful consideration of all the testimony in this case and after a personal examination of claimant's right hand, your Referee is of the opinion and finds as a fact that claimant suffers a permanent loss of the use of the right hand, and, also, has a very considerable overall disability of the body as a whole although at the present time it is not interfering with his earning capacity for the reason that the employer has furnished him with another form of employment that he can perform"; and substituted in its stead, the board's sixth finding of fact reading as follows: "Sixth: That the claimant has suffered considerable disability to his right hand, ...


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