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BREEDY v. SHARP & SHEARER (12/20/72)

decided: December 20, 1972.

BREEDY
v.
SHARP & SHEARER, INC., ET AL.



Appeal from the Order of the Workmen's Compensation (Appeal) Board in case of Anne Breedy v. Sharp & Shearer, Inc., and Pennsylvania Manufacturers' Association Insurance Co.

COUNSEL

John F. McElvenny, with him Henry F. Furman and Clifford V. Long, for appellants.

Joseph E. DeSantis, with him David J. Batdorf and McGavin, DeSantis & Koch, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 7 Pa. Commw. Page 370]

On March 7, 1969, claimant-appellee suffered a compensable accident which was described in the agreement for compensation signed on March 17, 1969, and approved on May 7, 1969, as follows: "Spilled a pile of cardboards, stooped to pick them up and in so doing pushed aside the guard on the drive shaft permitting it to catch her hair. Scalp was torn from head by pressure of hair being pulled." In addition, the testimony before the Referee developed that her ear was torn off completely. The ear was sewed back on and plastic surgery performed. Compensation was paid under the agreement from March 15, 1969, until November 28, 1969, at which time the insurance carrier discontinued payments.

On June 16, 1970, claimant-appellee filed a Petition for Modification of the compensation agreement alleging continued total disability. The insurance carrier filed an answer on August 7, 1970, denying claimant-appellee had been or was then totally disabled and alleging, on the contrary, that claimant-appellee could work without disability, loss of earnings, or loss of earning power and demanding proof of any claimed disfigurement of any part of the body. At the same time, the insurance carrier filed a Petition to Terminate the agreement. On August 19, 1970, claimant-appellee filed her answer to the insurance carrier's Petition to Terminate.

On May 5, 1971, after two continuances granted at the request of claimant-appellee's attorney, the matter was heard by the Referee on both claimant-appellee's

[ 7 Pa. Commw. Page 371]

Petition for Modification and insurance carrier's Petition for Termination. The insurance carrier presented testimony of its medical expert and the claimant-appellee testified together with her medical expert. The Referee found as facts that the claimant-appellee was totally disabled and that the injury had not resolved itself into specific loss. As a conclusion of law, the Referee found that the claimant-appellee had established that she was totally disabled. He ordered that compensation in accordance with the agreement of $48.70 per week be paid from November 29, 1969, the date the insurance carrier had unilaterally discontinued payments.

On August 13, 1971, the insurance carrier took an appeal to the Workmen's Compensation Board specifying that the Referee erred in finding claimant-appellee was totally disabled; that claimant-appellee's injury had not resolved itself into a specific loss; that claimant-appellee suffered "phantom pain"; and that claimant-appellee had any injury beyond disfigurement. Assignment of error was taken to the conclusion of law that there was total disability and that the disability had not resolved itself into a specific loss. On June 1, 1972, the Board, in a carefully considered opinion, reviewed the testimony of the witnesses and affirmed the finding of the Referee. We agree.

As to total disability, there is total agreement by all witnesses. The only factual dispute revolves around whether the total disability is solely the result of disfigurement and, therefore, covered by Section 306(c)(22) of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, Art. III, as amended, 77 P.S. 513. This Section provides:

"(c) For all disability resulting from permanent injuries of the following classes, the compensation ...


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