Appeal from the Order of the Workmen's Compensation Appeal Board in case of Anthony J. Vovericz v. S & W Metal Products, Inc., No. 72648.
Paul A. Prince, with him Prince & Prince, for appellant.
Sandra S. Christianson, Assistant Attorney General, for appellee, Commonwealth.
Richard A. Bausher, with him Stevens & Lee, P.C., for appellee, S & W Metal Products, Inc.
Judges Crumlish, Jr., Wilkinson, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.
The right hand of Anthony J. Vovericz is affected by cerebral palsy. His left hand has had parts of the index, middle and ring fingers amputated because of an employment-related accident which occurred in September of 1974.
By agreement, his employer's carrier began paying him total disability compensation shortly after the accident.
To extend the period of disability compensation, claimant filed a petition against the Commonwealth's Second Injury Reserve Fund under Section 306.1 of The Pennsylvania Workmen's Compensation Act (Act).*fn1
Under that section, it is agreed that, for Vovericz to sustain his claim against the Second Injury Reserve Fund, he must prove loss of use of his palsied right hand, and also that the work accident has left him without the use of his left hand. Thus the employer was joined as an additional party.
Aside from cross-examining claimant's witnesses, neither the employer nor the Commonwealth produced any evidence. The only testimony presented at the hearing before the referee was that of claimant himself and two doctors who had examined him, Dr. Morrisey, who testified personally, and Dr. Menkowitz, whose deposition was submitted by stipulation.
The referee found that, although claimant had sustained the loss of his left hand, he had not for all practical intents and purposes lost the use of his right hand. Therefore, the referee dismissed his claim against the Second Injury Reserve Fund. The Workmen's Compensation Appeal Board (Board) affirmed, and claimant appealed to this Court.
The only testimony of record is that of claimant and his witnesses, and they present a consistent picture of the observable facts of the disability in claimant's right hand. This is essentially a case where the referee and the Board chose not to find, on what amounts to given facts, that claimant had lost the use of his right hand. See Adams v. Dunn, 192 Pa. ...