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NORTH STAR TRANSFER COMPANY AND BITUMINOUS INSURANCE COMPANIES v. COMMONWEALTH PENNSYLVANIA (08/20/79)

decided: August 20, 1979.

NORTH STAR TRANSFER COMPANY AND BITUMINOUS INSURANCE COMPANIES, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND OVIDIO AVOLIO, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ovidio Avolio v. North Star Transfer Company, No. A-73897.

COUNSEL

George H. Thompson, with him Hirsch, Weise & Tillmen, for petitioners.

June S. Schulberg, for respondents.

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

Author: Crumlish, Jr.

[ 45 Pa. Commw. Page 180]

This appeal stems from an award affirmance by the Workmen's Compensation Appeal Board to Ovidio

[ 45 Pa. Commw. Page 181]

Avolio for total disability in addition to payments for specific loss of his right eye. We affirm.

The recorded orchestration of events indicates that Mr. Avolio was injured when a nail struck his eye during work leading to loss of vision and eventual enucleation. Specific loss benefits were being paid when claimant filed a modification petition pursuant to the second paragraph of Section 413 of The Pennsylvania Workmen's Compensation Act*fn1 alleging total disability as a result of the April 19, 1973 injury separate from the eye injury. This petition was based on the allegation that on or about June 13, 1973, he began to experience head and neckaches and pain in the lower back, hands and arms.

One doctor opined that the physical maladies resulted from a conversion neurosis triggered by emotional stress secondary to the eye injury. Another doctor, engaged by appellants, suggested that Avolio's symptoms were the result of a conversion neurosis exaggerated for work avoidance and a suitable financial settlement. A doctor appointed by the referee determined that he had a chronic encephalopathy due to remote trauma complicated by a severe emotional overlay.

The primary issue is whether Avolio suffered a second compensable injury within the strictures of Section 306(d),*fn2 which provides:

Where, at the time of the injury the employe receives other injuries, separate from these which result in permanent injuries . . . , the number of weeks for which compensation is specified for the permanent injuries shall begin at the end of the period of temporary total disability

[ 45 Pa. Commw. Page 182]

    which results from the other separate injuries. . . .

Employer first argues that this section requires proof of an injury apart from the eye, arising at the instant of the eye injury, and caused by an "injury" separate from the nail hitting the eye. We disagree. Specific loss benefits provide for all disability emanating from or connected to the lost member but it must not be understood that compensation will be denied for separate injuries arising as a result of the singular incident. Lente v. Luci, 275 Pa. 217, 119 A. 132 (1922).

In reviewing the record, we find competent medical testimony to support the referee when he held that Avolio was totally and permanently disabled due to a conversion reaction.

Employer's contention that the impartial physician improperly based his conclusions regarding causation on an assumed concussion is meritless. To have assumed that a concussion occurred would be reversible error. Workmen's Compensation Appeal Board v. Czepurnyj, 20 Pa. Commonwealth Ct. 305, 340 A.2d 915 (1975). The referee found the disability resulted from the ...


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