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WESTINGHOUSE ELECTRIC CORPORATION v. COMMONWEALTH PENNSYLVANIA (12/16/77)

decided: December 16, 1977.

WESTINGHOUSE ELECTRIC CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CHARLES L. BENNETT, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles L. Bennett v. Westinghouse Electric Corporation, No. A-71175.

COUNSEL

Robert C. Jones, with him Samuel P. Gerace, and Jones, Gregg, Creehan and Gerace, for petitioner.

Raymond F. Keisling, with him Will & Keisling, and James N. Diefenderfer, for respondents.

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

Author: Blatt

[ 33 Pa. Commw. Page 51]

The Westinghouse Electric Corporation (employer) appeals here from an order of the Workmen's Compensation Appeal Board (Board) which reversed

[ 33 Pa. Commw. Page 52]

    a referee's decision and awarded compensation to Charles L. Bennett (claimant) for the loss of the use of his left hand.

The claimant's hand was injured in an accident in the course of his employment in 1970, and the injury necessitated the partial amputation of his left thumb and the complete amputation of his left index and middle fingers. He filed a claim petition pursuant to The Pennsylvania Workmen's Compensation Act*fn1 (Act), and the parties entered into a stipulated agreement at the referee's hearing, which provided that the claimant was to receive compensation for a period of 20 weeks for total disability and 95 weeks for the specific loss of half of his left thumb and the complete loss of his left index and middle fingers. Some time after compensation under that agreement had ceased, the claimant filed a reinstatement petition alleging the specific loss of his left hand. After several hearings, at which the claimant testified and both parties presented medical testimony, the referee found that the claimant had not lost the use of his left hand and dismissed the petition. Upon appeal, the Board reversed the referee's decision and granted the reinstatement petition. In so doing, the Board vacated the referee's finding concerning the claimant's hand and indicated that after viewing the hand, it was substituting its own finding that the claimant had lost the use of his left hand for all practical intents and purposes. This appeal followed.

Section 423 of the Act, 77 P.S. § 854, provides in pertinent part:

In any such appeal the board may disregard the findings of fact of the referee if not supported by competent evidence and if it deem

[ 33 Pa. Commw. Page 53]

    proper may hear other evidence, and may substitute for the findings of the referee such findings of fact as the evidence taken before the referee and the board, as hereinbefore provided, may in the judgment of the board, require, and may make such disallowance or award ...


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