Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph M. Muniz, Jr. v. United States Steel-Irwin Works, No. A-65511.
James D. Strader, with him Richard F. Lerach, for appellant.
Thomas H. M. Hough, with him Lucchino, Galterns & Hough, for appellees.
Judges Crumlish, Jr., Kramer and Blatt, sitting as a panel of three. Opinion by Judge Kramer.
This is an appeal from an order, dated November 29, 1972, of the Workmen's Compensation Appeal Board (Board) dismissing the appeal of the United States Steel Corporation (USS) and thereby affirming the award of compensation to Joseph M. Muniz, Jr. (Muniz).
The pertinent facts taken from the record are that Muniz, a 29-year-old "solution tender" with six years service to USS, was injured on August 15, 1969 in the course of his employment. As a solution tender, Muniz' work entailed the lowering of a 95-pound, five feet long, anode into a vat for an electrolytic tinning process. The anode was attached to a hook which was raised and lowered by way of a jib crane. The process involves
the use of a magnetic field, which occasionally causes the anode to become attached to a steel beam in the middle of the electrolytic equipment. On August 15, 1969, as Muniz was lowering an anode, it became attached to the steel beam through the magnetic force. When this occurred, he released his hold on the rope which operated the crane, so as to release the anode from the beam. For some unexplained reason, the crane operated, thereby pulling and squeezing Muniz' hand, wrist and arm. He immediately experienced pain. The engineering expert witness of USS admitted that such an occurrence, though unlikely, was possible. Muniz immediately informed his foreman, and was sent to the company medical office. Although there is some confusion in the record as to the history of Muniz' medical treatment, the record contains sufficient evidence from which the referee and Board could conclude that Muniz suffered an aseptic necrosis of the carpal lunate in the right wrist, which is the death of bone in the wrist, frequently occurring about six months (or later) after a "crush-type" injury. Muniz underwent two surgical operations, the first for the lunate fracture and removal of the dead bone, and the second to free a tendon causing resultant thumb trouble. The injury was described as a permanent one resulting in a 50% disability to the use of the right wrist.
USS raises three issues, namely (1) that the referee's and Board's finding that Muniz was injured within the scope of his employment is not supported by substantial evidence, (2) that the Board's award of total disability benefits was in error because of the availability of work for Muniz and (3) that the Board erred in setting aside the referee's granting of subrogation against workmen's compensation benefits awarded where the employer has paid disability benefits to the worker on the basis that the disability was then determined by the employer to be "non-occupational."
Although the Workmen's Compensation Law was drastically amended in 1972 (Act of February 8, 1972, P.L. , Act No. 12; and Act of March 28, 1972, P.L. , Act No. 61) the scope of review of this Court has not changed. Where the party with the burden before the Board is successful, we need only determine whether there is substantial evidence in the record to support the findings of fact; and we are also to determine whether or not the Board made any errors of law. See Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973).
Our careful reading of the record in this case permits us to conclude that there is sufficient substantial competent evidence in the record to establish that Muniz was injured within the scope of his employment. We next turn to the second issue raised by USS. In this regard, USS presented the testimony of an employe of an independent employment agency operating in Western Pennsylvania. This witness testified generally that there were many jobs available to persons with Muniz' injuries, as they had been described to the witness. He also made note that the employment ads in the local Pittsburgh newspapers indicated the availability of many jobs for persons with partial disability. However, on cross-examination, this witness admitted (1) that if a prospective worker had been declared totally disabled by the Social Security Agency (as Muniz had), and (2) that if a prospective worker had been denied employment by his prior employer (the record discloses that USS had so denied ...