Appeal from the order of the Court of Common Pleas of Bucks County -- Civil Action -- Law, May Term, 1969, No. 3242 in case of Joseph Berman v. Car Craft and Harleysville Insurance Company.
Herbert F. Holmes, Jr., for appellant.
Kenneth A. Cardone, with him David Durben and Walsh, Durben & White, for appellee.
Judges Crumlish, Jr., Manderino and Rogers, sitting as a panel of three. Opinion by Judge Manderino.
Joseph Berman suffered a retinal detachment on August 18, 1966 when he was struck on the head by a piece of metal while in the employ of Car Craft as a body and fender repairman. A compensation agreement was entered into on September 15, 1966, the terms of which required Car Craft to pay compensation to Berman for permanent and total disability. On November 8, 1967, Car Craft petitioned the Workmen's Compensation Board to end the compensation agreement for the reason that Berman was no longer disabled and could return to his former occupation. Hearings were commenced before a Referee on June 8, 1968, who concluded that Berman had a permanent partial disability and was entitled to a compensation award based essentially on the difference between Berman's new employment as a custodian at lesser wages than he received in his old employment as a body and fender repairman. Car Craft appealed this decision to the Workmen's Compensation Board, which reversed the decision of the Referee and terminated the compensation agreement. From that decision, Berman appealed to the Court of Common Pleas of Bucks County which reversed the order of the Board and reinstated the Referee's decision. It is the decision of the lower court which Car Craft now appeals to this court.
In this case, the Referee, the Board, and the lower court, all agreed on the essential facts. They agreed that Berman suffered an injury in his employment as a body and fender repairman and that he suffered retinal detachment of the right eye. They further agree that after surgical intervention and reattachment of the
retina, Berman suffered a loss of fifteen percent (15%) of peripheral vision and some malfunction of the muscles of the right eye that produces, at times, two planes of vision or double vision. They all also agree (and this is the heart of the matter) that "in addition, the area of the retinal reattachment, while firmly knit, is so slight that the claimant may not return to any form of heavy employment without serious risk of recurrence of retinal tear along the very thin line of reattachment with irreparable results."
We emphasize that the Referee found the above facts, as well as the Compensation Board and the lower court.
From the above facts, however, the Referee and the lower court concluded that Berman had a partial disability which prevented him from performing his work as a body and fender repairman. The Compensation Board arrived at a different conclusion on the same findings of fact. The Board concluded that Berman did not have a partial disability. Thus the lower court's disagreement with the Board occurred because different conclusions were drawn from the facts agreed upon.
The Board explicitly accepted the findings of fact by the Referee (as did the lower court) and gave its reasons for differing with the ultimate conclusion. The Board's opinion stated:
"Notwithstanding the testimony of the defendant's medical witnesses, we are persuaded, as was Referee Nelson, by the testimony of the operating surgeon and his assessment of the present condition of the repaired retina. Dr. Ainesley carefully explained that, although the reattachment was firm, the repair was precarious in that the area of reattachment was not wide or extensive (N.T. 49). Dr. Ainesley was explicit in ...