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GINDY MANUFACTURING COMPANY v. COMMONWEALTH PENNSYLVANIA (10/07/77)

decided: October 7, 1977.

GINDY MANUFACTURING COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND LUIS BURGOS, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Luis Burgos v. Gindy Manufacturing Company, No. A-71680.

COUNSEL

John F. Christie, III, with him High, Swartz, Roberts & Seidel, for petitioner.

Charles C. Hansford, with him James N. Diefenderfer, for respondents.

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

Author: Rogers

[ 32 Pa. Commw. Page 129]

Gindy Manufacturing Company has appealed an order of the Workmen's Compensation Appeal Board affirming a referee's order modifying a compensation agreement favorably to an injured worker.

Luis Burgos suffered compensable injuries as the result of which the index, middle and ring fingers of his right hand were amputated midway between the first and second joint. Burgos was provided a notice of compensation payable which fixed his compensation at $94.00 per week but which made no mention of the number of weeks that payments were to be made. A supplemental agreement set these payments at 95 weeks computed on the basis of one-half loss of the right index finger, entitling claimant to 25 weeks of compensation; the complete loss of the right middle finger providing 40 weeks of compensation; and the complete loss of the right ring finger for a further 30 weeks of compensation.*fn1 Burgos required further surgery on the injured fingers and two additional supplemental agreements, dated respectively February 20 and June 5, 1973, were entered into, the first suspending

[ 32 Pa. Commw. Page 130]

    specific loss benefits during the post-surgery healing periods and the second reinstating benefits at the end of the healing periods.*fn2

On November 8, 1973, the claimant filed a petition for modification of the compensation agreement, alleging that his disability had increased and that he had lost the use of his right hand for all practical intents and purposes. The referee dismissed this petition in light of still another agreement dated November 26, 1973 which provided that because of additional surgery on the index finger, compensation would be granted for the specific loss of all three fingers and that the claimant would receive payments for an additional 25 weeks to cover the balance of the index finger loss. The Board on appeal reversed and remanded for a further hearing, after which the referee made extensive findings of fact and concluded that: "The claimant, as a result of the injuries sustained on October 6, 1972, has sustained a loss of use of his right hand for all practical intents and purposes." The Board affirmed without taking additional evidence. The employer has appealed, assigning as the sole issue that the evidence of record does not support the finding that the claimant lost the use of his hand. We disagree and affirm.

[ 32 Pa. Commw. Page 131]

Where, as here, the party having the burden of proof prevails in proceedings before the referee and the Board affirms without taking additional evidence, our scope of review is limited to a determination of whether the referee's findings and conclusions are supported by substantial evidence, an error of law has been committed or constitutional rights violated. Cairnbrook Coal Co. v. Workmen's Compensation Appeal Page 131} Board, Pa. Commonwealth Ct. , 374 A.2d 766 (1977); see also Wall v. Workmen's Compensation Appeal Board, 12 Pa. Commonwealth Ct. 12, 315 A.2d 656 (1974). The issue of whether an employee has lost the use of his hand is a question of fact rather than one of law. Wall, supra.

This case is much similar on the facts to Reading Tube Corp. v. Workmen's Compensation Appeal Board, 12 Pa. Commonwealth Ct. 45, 315 A.2d 678 (1974). There, the claimant suffered injuries which required the amputation of his right index finger. An agreement was entered into for compensation for 35 weeks for the loss of the finger. Later, one of six unsuccessful operations performed in an attempt to cure recurring pain in fact caused a loss of feeling in claimant's right middle finger. The claimant later sought the larger benefits which would accrue if it could be established that he had suffered the ...


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