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UNITED STATES STEEL CORPORATION v. COMMONWEALTH PENNSYLVANIA (12/13/77)

decided: December 13, 1977.

UNITED STATES STEEL CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND THOMAS P. ELKINS, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Thomas P. Elkins v. U.S. Steel Corporation, No. A-71220.

COUNSEL

Richard F. Lerach, for petitioner.

Alexander J. Pentecost, with him James N. Diefenderfer, for appellees.

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

Author: Blatt

[ 32 Pa. Commw. Page 638]

The United States Steel Corporation (employer) appeals here from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision awarding compensation to Thomas Elkins (claimant) for the loss of the use of his left foot.

In 1968, an accident in the course of the claimant's employment necessitated the amputation of all five toes and portions of the metatarsal bones of his left foot. On December 6, 1968, pursuant to The Pennsylvania Workmen's Compensation Act*fn1 (Act), the claimant filed a petition for benefits alleging that he suffered the industrial loss of the foot. He subsequently withdrew this petition, however, and entered into an agreement with his employer for compensation for the specific loss of all five toes. After benefits under this agreement had ceased, the claimant filed a petition for

[ 32 Pa. Commw. Page 639]

    review alleging that he was entitled to additional specific losses, and, after several hearings, the referee found that "the claimant suffered the industrial loss of his left foot" and awarded additional benefits. The Board on appeal affirmed the award but modified the payment schedule to credit amounts paid by the employer under the prior agreement. On appeal to this Court, we reversed the Board, holding that the referee and the Board had applied the wrong standard in determining the loss of use, and directed the Board on remand to determine if the claimant had lost the use of his foot for all practical intents and purposes. See United States Steel Corp. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 35, 333 A.2d 836 (1975). On remand, the referee found that the claimant had lost the use of his left foot for all practical intents and purposes and additional benefits were again awarded. The Board affirmed the referee's decision and the employer has appealed to this Court.

Section 427 of the Act, 77 P.S. § 876.1, provides that this Court's scope of review in workmen's compensation appeals is that defined in Section 44 of the Administrative Agency Law,*fn2 71 P.S. § 1710.44. Section 44 limits our scope of review here to a determination of whether or not an error of law was committed, constitutional rights were violated, or whether or not findings of fact are unsupported by substantial evidence. The sole issue raised by the employer here is whether or not the referee's finding of loss is supported by adequate competent evidence.

Section 306(c)(24) of the Act, 77 P.S. § 513, provides that "[p]ermanent loss of the use of a . . . foot . . . shall be considered as the equivalent of the loss of such . . . foot. . . ." However, a finding of loss of use

[ 32 Pa. Commw. Page 640]

    under Section 306(c) is not a finding that the injured member has absolutely no use, Curran v. Walter E. Knipe & Sons, Inc., 185 Pa. Superior Ct. 540, 547, 138 A.2d 251, 255 (1958), and we held in Lebanon Steel Foundry v. Workmen's Compensation Appeal Board, 12 Pa. Commonwealth Ct. 530, 533, 317 A.2d 315, 316 (1974) that Section 306(c) should be so construed ...


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