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ERNEST NARDONE v. COMMONWEALTH PENNSYLVANIA (01/08/80)

decided: January 8, 1980.

ERNEST NARDONE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, RESPONDENT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ernest Nardone v. Strick Trailer Company, No. A-74403.

COUNSEL

Jay I. Bomze, with him Zarwin, Baum, Arangio & Ross, P.C., for petitioner.

Daniel F. Monahan, with him John McElvenny and Larry Pitt, for respondent.

Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Craig

[ 48 Pa. Commw. Page 361]

Claimant Ernest Nardone appeals from a November 2, 1978 decision of the Workmen's Compensation Appeal Board (board), which reversed a referee's decision and award in favor of claimant, and dismissed his claim.

Claimant had worked as a riveter for the Strick Trailer Corporation for 23 years before his termination as of June 1, 1975, when Strick ceased operations. Early in 1976, claimant discovered, through medical examination for hearing difficulties, that he had what is termed a high tone sensorineural hearing loss, which loss was permanent and attributable to his employment in Strick's high noise level environment. He then reported his injury to Strick and filed a claim petition with the workmen's compensation authorities. The petition originally sought specific loss benefits, but, by later amendment, made a claim for partial disability under Section 306(b) of The Pennsylvania

[ 48 Pa. Commw. Page 362]

Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 512.

After hearings, the referee issued an award and order directing the defendant to pay compensation to claimant for total disability from June 1, 1975 until October 3, 1976, when claimant secured employment as a parking attendant, and for partial disability from that date forward for a period not to exceed 500 weeks.

Upon appeal to the board by the defendant employer, the board reversed and dismissed the claim, stating that claimant had not established a disability reflected in a loss of wages.

That claimant's hearing loss constitutes a work-related injury is not disputed. The basic issue is whether there had been a loss of earning power.

Loss of earning power is a question of fact. Philco Ford Corp. v. Engel, 21 Pa. Commonwealth Ct. 345, 345 A.2d 790 (1975); Michael v. Roadway Express, Inc., 211 Pa. Superior Ct. 238, 235 A.2d 627 (1967). The referee's award of benefits for partial disability implicitly incorporates a finding that claimant has sustained a loss of earning power equal to the disparity ...


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