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VINCENT L. KILLIAN v. COMMONWEALTH PENNSYLVANIA (09/22/81)

decided: September 22, 1981.

VINCENT L. KILLIAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND HEINTZ DIVISION, KELSEY HAYES COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Vincent L. Killian v. Heintz Division, Kelsey Hayes Company, No. A-78719.

COUNSEL

Thomas F. McDevitt, for petitioner.

Richard D. Harburg, Swartz, Campbell & Detweiler, for respondents.

Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Judge Craig.

Author: Macphail

[ 62 Pa. Commw. Page 31]

This is an appeal by Vincent L. Killian (Claimant) from an order of the Workmen's Compensation Appeal Board (Board), dated September 4, 1980, which affirmed the referee's order and decision of January 31, 1980, dismissing Claimant's claim petition.

I. History of the Proceedings

A. Initial Proceedings

It is undisputed that while working for the Heintz Division of the Kelsey Hayes Company (Employer), Claimant suffered an injury to his left hand, when the hand was caught accidentally in a press causing the amputation of four fingers. As an ultimate result of that accident which occurred on September 25, 1963, Claimant was awarded compensation for loss of use of his left hand, under the specific loss provisions of The Pennsylvania Workmen's Compensation Act (Act).*fn1

Several months following the accident, Claimant returned to his former job with Employer at the same

[ 62 Pa. Commw. Page 32]

    machine. On April 28, 1968, Claimant again sustained injuries to his left hand due to a similar malfunction of the press. This second accident caused the amputation of the remaining stumps of Claimant's previously amputated fingers.

Claimant filed a new claim petition for the second accident and the referee awarded him compensation for temporary total disability (for the months of healing following the accident) and thereafter for permanent partial disability. The Board affirmed the referee's award, but was reversed upon Employer's appeal to this Court.

In that prior decision, Heintz Division Kelsey Hayes Co. v. Workmen's Compensation Appeal Board, 15 Pa. Commonwealth Ct. 391, 326 A.2d 649 (1974), we held that Claimant was not entitled to compensation for an injury to a "member that judicially does not exist." Because Claimant had already been fully compensated for the loss of his left hand, the Court held that he could not be awarded benefits for a second loss of that same hand under the Act. The Court did hold, however, that Claimant was entitled to reasonable medical expenses since a second "accident" had occurred.

Claimant appealed from our decision and order and the Pennsylvania Supreme Court granted allocatur. The Supreme Court felt that this Court had taken an unnecessarily restrictive view of the matter. The Supreme Court*fn2 agreed with this Court that generally Section 306(c)(1) of the Act, 77 P.S. ยง 513(1), provides the exclusive source of compensation for all disability for loss of a hand. However, the Supreme Court reaffirmed the general rule's sole exception, which was first enunciated by the Supreme Court in

[ 62 Pa. Commw. Page 33]

    at hand and made the necessary findings because, as the Court noted, the record contained some testimony which indicated that Claimant may have sustained a separate and distinct injury to his arm as a result of the April 28, 1968 accident.

In light of the hints of a separate and distinct injury in the record below, the Supreme Court remanded to the Board and ultimately a referee for application of the Lente test, i.e., "whether the 1968 injury solely affected Killian's left hand or did that second injury also affect a ...


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