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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND ANTHONY VENTURELLA v. WESTINGHOUSE ELECTRIC CORPORATION (04/06/76)

decided: April 6, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND ANTHONY VENTURELLA
v.
WESTINGHOUSE ELECTRIC CORPORATION, APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Anthony Venturella v. Westinghouse Electric Corp., No. A-68534.

COUNSEL

Robert C. Jones, with him Samuel P. Gerace, and Jones, Gregg, Greehan and Gerace, for appellant.

Joseph K. Pierce, with him Arnold D. Wilner, Theodore Goldberg, and Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellee, Venturella.

James N. Diefenderfer, for appellee, Board.

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

Author: Mencer

[ 24 Pa. Commw. Page 253]

This is an appeal by Westinghouse Electric Corporation (appellant) from an order of the Workmen's Compensation Appeal Board (Board) sustaining a referee's award of compensation to Anthony Venturella (claimant) for the loss of use of three fingers and the thumb on his right hand.*fn1

All the parties agree that claimant suffered an industrial accident when, on August 21, 1970, during the course of his employment, claimant was struck on his right hand by a large bracket that had fallen from a gyp crane in Westinghouse's welding shop. Although appellant and claimant entered into a compensation agreement, compensation was not paid because of claimant's early return to work. However, in March of 1972, claimant filed a petition for disability compensation for the permanent loss of use of his right hand. This appeal is from the referee's grant of compensation to claimant based on that petition.

Since the Board affirmed the referee's grant of benefits without taking any additional evidence, our scope of review is limited to a determination of whether there is substantial competent evidence in the record to support any necessary findings of fact and whether the Board and referee have committed an error of law. Workmen's Compensation Appeal Board v. Auto Express, Inc., 21 Pa. Commonwealth Ct. 559, 346 A.2d 829 (1975).

Initially, we are compelled to settle the obvious conflict between claimant's petition for compensation for the loss of use of his right hand and the referee's award of compensation for losses to three fingers and a thumb on that hand. Appellant contends that during the course of the hearing the claimant orally amended his claim petition

[ 24 Pa. Commw. Page 254]

    and thereby restricted his claim for permanent loss of use to his index and middle fingers. We conclude that the appellant is correct in this regard, and therefore we will reverse the referee's grant of ...


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