Appeal from the Order of the Workmen's Compensation Appeal Board in case of Claim of Joseph B. Pittman v. Gulf Oil Company, U.S., No. A-76045.
Charles S. Katz, Jr., Swartz, Campbell & Detweiler, for petitioners.
Philip M. Gilligan, McEldrew, Hanamirian, Quinn & D'Amico, for respondents.
President Judge Crumlish and Judges Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 54 Pa. Commw. Page 444]
Gulf Oil Corporation U.S. (employer) and its insurer, Travelers Insurance Company, petition for review of a decision of the Workmen's Compensation Appeal Board (board) which vacated a referee's decision made pursuant to a remand from the board, and reinstated, with modification, the referee's initial decision denying the employer's petition for modification of total disability benefits being paid to claimant Joseph B. Pittman. We affirm.
Claimant sustained a crush injury to the right hand in June 1970, while working as a boilermaker. He received total disability payments pursuant to initial and supplemental agreements, through August, 1975.
On August 6, 1975, the employer filed two petitions, one for modification of claimant's disability into specific loss of use of the right hand, and the second a petition for specific loss under Section 306(c) of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. § 513, alleging that claimant's disability had resolved itself into loss of use of one-half of the right hand. The referee treated both petitions as a single modification petition, characterizing the second petition as an anomaly not recognized by the act.*fn2
After a hearing, the referee dismissed the employer's petition, finding that the employer had failed
[ 54 Pa. Commw. Page 445]
to carry its burden of showing claimant to have "lost the entire use of his said right hand;" he grounded that finding on the report and testimony of the employer's medical experts which indicated, respectively, that claimant had "not lost the entire use of his injured hand" and that claimant's hand was "not altogether useless." The referee also found that the employer had failed to establish the availability of work which claimant could perform within his capability.
The referee also directed the employer to pay claimant's counsel fees incurred in defense of the petition.
On the employer's appeal, the board rejected the employer's challenges to the merits of the claim, but noted the absence of any findings on the reasonableness of employer's contest. Additionally, the board noted that the referee's ...