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GIBSON-BOULEVARD v. WORKMEN'S COMPENSATION APPEAL BOARD AND JAMES D. BARBER (05/21/75)

decided: May 21, 1975.

GIBSON-BOULEVARD, INC. AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND JAMES D. BARBER, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of James D. Barber v. Gibson-Boulevard, Inc., No. A-68133.

COUNSEL

Robert O. Beers, with him Anderson, Ports, May & Beers, for appellant.

Gibson Smith, with him James N. Diefenderfer, for appellees.

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

Author: Crumlish

[ 19 Pa. Commw. Page 149]

This is an appeal by Gibson-Boulevard, Inc. (Appellant) from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's award of compensation for the specific loss of use of the right eye of James D. Barber (Claimant). Following an accident, Claimant and Appellant entered into a compensation agreement which was approved on August 26, 1970. The accident was described in that agreement as follows:

"While burning sledge hammer from crusher smithboard was heated which produced a flammable gas which resulted in an explosion. Flash burns to the face and eyes."

On December 1, 1970, Appellant filed a petition to terminate the compensation agreement on grounds that Claimant resumed his employment on September 17, 1970. Following a hearing on that petition, the referee found that Claimant had returned to employment and thus terminated the compensation agreement. Both parties appealed from that termination order and Claimant later petitioned for rehearing on the ground that his right eye was seriously injured and that his vision was greatly impaired.

The Board granted a rehearing, and after additional evidence was received, the referee again terminated compensation, but this time as of September 14, 1970. Claimant again appealed and on February 21, 1973, the Board proceeded to vacate the referee's findings of fact, conclusions of law and order of disallowance and remanded for the purpose of taking additional medical testimony.

During the hearing convened for the purpose of taking additional medical testimony, Claimant argued that he was claiming compensation for a permanent partial disability, or in the alternative, compensation for the specific loss of use of his right eye. No petition to modify the compensation agreement or petition requesting compensation for specific loss was ever filed, however. The Board

[ 19 Pa. Commw. Page 150]

    chose to view Claimant's petition for a rehearing as a petition to modify or a petition requesting compensation for a specific loss in light of the fact that the thrust of testimony presented by Claimant was in the direction of attempting to show specific loss.

Upon review of all the evidence presented, the Board affirmed the referee's findings of fact and conclusions of law finding competent evidence to support the award for specific loss of Claimant's right eye and further finding this case to be within the confines of ...


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