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ROBERT L. NEY v. WORKMEN'S COMPENSATION APPEAL BOARD AND AMERICAN CAN COMPANY (10/28/74)

decided: October 28, 1974.

ROBERT L. NEY, APPELLANT,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND AMERICAN CAN COMPANY, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Robert L. Ney v. American Can Company, No. A-67290.

COUNSEL

Roland J. Artigues, with him Galfand, Berger, Senesky, Lurie & March, for appellant.

Robert A. Detweiler, with him James N. Diefenderfer, for appellees.

Judges Kramer, Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 15 Pa. Commw. Page 382]

This is an appeal by Robert L. Ney (Ney) from a decision of the Workmen's Compensation Appeal Board

[ 15 Pa. Commw. Page 383]

(Board) sustaining a referee's denial of compensation benefits.

Ney injured the thumb of his right hand in an accident which occurred on May 28, 1971, while he was in the course of his employment with the American Can Company (employer). He filed a claim petition on September 20, 1971, seeking compensation for the loss of use of one-half of his right thumb.

After hearings were held before a referee, Ney's petition was denied as a result of the referee's finding that his injury had "healed without substantial loss of tissue or function." The referee's denial of compensation was affirmed by the Board, and Ney now appeals to us.

[ 15 Pa. Commw. Page ]

Our scope of review in workmen's compensation cases is limited to a determination of whether constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial competent evidence. Page's Department Store v. Workmen's Compensation Appeal Board, 11 Pa. Commonwealth Ct. 126, 309 A.2d 169 (1973). And where, as here, the Board has affirmed the findings and conclusions of the referee and has found against the party having the burden of proof, review by this Court is to determine whether the findings are consistent with each other and with the conclusions of law and the Board's order and can be sustained without a capricious disregard of competent evidence. Wilkes-Barre Iron & Wire Works, Inc. v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 612, 309 A.2d 172 (1973).

Our reading of the record convinces us that the referee's finding that Ney's injury had healed "without substantial loss of tissue or function" cannot be sustained without ...


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