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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND U.S. STEEL CORPORATION v. CHARLES WINKLEMAN (05/08/75)

decided: May 8, 1975.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND U.S. STEEL CORPORATION, APPELLEES,
v.
CHARLES WINKLEMAN, APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles Winkleman v. U.S. Steel Corporation, No. A-68108.

COUNSEL

Roland J. Artigues, with him, of counsel, Galfand, Berger, Senesky, Lurie and March, for appellant.

James D. Strader, with him James N. Diefenderfer, for appellees.

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

Author: Mencer

[ 19 Pa. Commw. Page 35]

This is an appeal by Charles Winkleman (claimant) from an order of the Workmen's Compensation Appeal Board (Board) sustaining a referee's partial denial of compensation benefits.

The record reveals that on July 24, 1968, claimant suffered an injury to his left great toe when he was accidentally struck by a dropped sledge hammer. The United States Steel Corporation (defendant) admitted the injury but denied that any disability resulted therefrom. A referee and the Board then denied benefits because the claimant had not availed himself of medical services offered by the defendant. Later, defendant did recognize periods of disability from the accident and placed claimant under an agreement for benefits.

Claimant subsequently filed a modification petition, which is the object of this appeal, alleging the loss of use of his great toe. He then amended his petition to claim total disability as a result of back problems that he alleged were caused by his toe injury. The referee found that claimant had lost the use of his great toe but found no other disability. The claimant appealed from that part of the decision concerning the denial of total disability, and the Board affirmed on the basis of our holding in Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973).*fn1

The referee's crucial third finding, which the Board affirmed, was that "[c]laimant sustained no other or further disability than the loss of use of his left great toe and any disability claimant had, has, may have, or may have had on August 7, 1972 or thereafter is not or was not in any way related to the injury sustained by claimant on July 24, 1968 while in the employ of the defendant."

[ 19 Pa. Commw. Page 36]

The main issue raised by claimant is whether or not the referee's findings, as affirmed by the Board, are consistent with each other and with his conclusions of law and with the order and can be sustained without a capricious disregard of the evidence. Claimant correctly recognizes the scope of our review. Canterna v. United States Steel Corporation, 12 Pa. Commonwealth Ct. 579, 317 A.2d 355 (1974).

Our very careful reading of the record convinces us that the referee's finding that claimant's current disability is not related to the 1969 injury to his great toe cannot be sustained without a capricious disregard of competent evidence.

The two doctors called on claimant's behalf both directly related the great toe injury to his current back disability. The defendant's doctor also unequivocally acknowledged this relationship.*fn2 No medical or non-medical witness denied the relationship. In fact, during the hearings the defendant seems to have recognized the futility of this ...


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