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HARRY L. GREENWALD v. COMMONWEALTH PENNSYLVANIA (07/23/81)

decided: July 23, 1981.

HARRY L. GREENWALD, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JAMES L. REINARD, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Harry L. Greenwald v. James L. Reinard, No. A-77614.

COUNSEL

Gregory M. Kruk, Ferraro & Young, for petitioner.

Leonard P. Kane, with him Joseph F. Grochmal, Carl B. Fried, Fried, Kane, Walters & Zuschlag, for respondent, James L. Reinard.

President Judge Crumlish and Judges Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 61 Pa. Commw. Page 35]

Claimant, Harry L. Greenwald, appeals from an order of The Pennsylvania Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision denying him workmen's compensation benefits.

In October, 1973, claimant was employed as a general laborer for a construction contractor when, in the course of his duties, he was struck on the head by a falling hammer. The blow caused a rupturing of blood vessels in claimant's right eye resulting in a vitreous hemorrhage in that organ. On January 15, 1974, employer filed a Notice of Compensation Payable, and the claimant received total disability benefits from December 27, 1973 until January 8, 1974.

In May, 1974, after claimant had ceased receiving benefits, he filed a Claim Petition alleging that his

[ 61 Pa. Commw. Page 36]

    disability had reoccurred and that he had suffered a specific loss of his right eye. That Claim Petition was later amended to be a Petition to Set Aside a Final Receipt. A referee's hearing was held in this matter, after which the referee awarded claimant benefits for the loss of the use of his right eye. The referee's award was appealed to the Board and the Board set aside that award and remanded the matter to the referee. The Board ordered the referee to make findings of fact as to whether claimant had complied with the standard set forth in the case of Hershey Estates v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 470, 308 A.2d 637 (1973) for determining the entitlement to compensation for an alleged specific loss of the use of an eye.*fn1 Thereafter, the referee again awarded claimant specific loss benefits. On appeal to the Board, the referee's second decision was set aside, and the case was once more remanded to the referee for further findings of fact. The Board felt that the referee had once again failed to find facts showing that the claimant had met his burden of proof under the Hershey Estates case. In addition, the Board indicated that the referee should make a determination as to the role the hammer blow of October, 1973, played in the eventual loss of vision in claimant's right eye.

After the third remand hearing, the referee denied benefits to the claimant. The referee found that the initial blow to claimant's head caused a hemorrhage in his right eye, but that the hemorrhage was subsequently

[ 61 Pa. Commw. Page 37]

    treated and his vision restored.*fn2 The referee further found that the claimant did not prove by unequivocal medical evidence that the loss of the use of his right eye was caused by the hammer blow. Claimant's medical witness testified at the hearing that claimant suffered from diabetic retinopathy and that he could not state with certainty whether claimant would have lost the vision in his right eye even if he had not been struck on the head. The referee determined that claimant's blindness was caused not by the hammer blow, but rather by the natural ...


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