Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Joseph Vincent Kennedy v. Philadelphia Tramrail Company and Pennsylvania Manufacturer's Association Insurance Company, No. 143 February Term, 1972.
John F. McElvenny, for appellants.
Thomas F. McDevitt, for appellee.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.
[ 18 Pa. Commw. Page 527]
This is a workmen's compensation case in which an employer and its insurance carrier ask us to review the evidentiary record, which they contend does not support an award of benefits by a referee affirmed on appeal by the Workmen's Compensation Appeal Board and on a second appeal by the Court of Common Pleas of Philadelphia County. We have carefully reviewed the record and we too affirm.
In February 1965, Joseph Vincent Kennedy suffered injuries to his left hand in the course of his employment by Philadelphia Tramrail Company. The parties entered into an agreement for compensation for total disability. Mr. Kennedy returned to work at Tramrail in August 1965 and his employer and its insurance carrier filed a petition for termination of the agreement. The matter came on for hearing before a referee at which counsel for the parties requested that the petition for termination be considered a petition for suspension and stipulated that the agreement should be suspended because Mr. Kennedy had returned to work without loss of earnings. The referee entered an order to this effect.
In the latter part of 1968, Mr. Kennedy who was still experiencing difficulties with his hand, underwent surgical treatment at his own expense. Shortly after returning to work from this experience, Tramrail discharged him.
In November 1968, Mr. Kennedy filed a petition to reinstate the agreement for compensation, alleging total disability. A referee conducted hearings in 1969, 1970 and 1971, and on August 2, 1971 filed a decision in which he found that the claimant suffers an overall disability to earn of approximately 20 percent of his previous earning potential and awarded compensation accordingly. It is
[ 18 Pa. Commw. Page 528]
the record thus made and this order which the Workmen's Compensation Appeal Board and the Court of Common Pleas of Philadelphia County were, and which we are now, requested to review.
At the referee's hearing, Mr. Kennedy testified that he suffers pain and numbness in, and that he is unable to make a fist with, his left hand. An orthopedic specialist testified in his behalf that Mr. Kennedy's left hand is atrophied, that its grasping power is diminished and that Mr. Kennedy suffers a 25 percentum permanent partial disability.
A medical witness testified for the employer that in his opinion Mr. Kennedy was not so disabled that he could not work but conceded that the claimant suffers a 5 to 10 percentum ...