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decided: November 19, 1981.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of William J. Airgood v. U.S. Steel Corporation, No. A-78824.


Louis A. Raimond, for petitioner.

John W. McTiernan, McArdle, Caroselli, Spagnoli & Beachler, for respondent, William J. Airgood.

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

Author: Mencer

[ 62 Pa. Commw. Page 503]

United States Steel Corporation has appealed from an order of the Workmen's Compensation Appeal (Board) affirming a referee's decision which granted William J. Airgood (claimant) a suspension of benefits effective December 4, 1976. We affirm.

On November 15, 1979, claimant filed a claim petition requesting a suspension of workmen's compensation benefits for a partial disability not reflected in a loss of earning power. At the hearing before the referee, the parties stipulated that (1) claimant had sustained an injury to his right leg on December 4,

[ 62 Pa. Commw. Page 5041976]

while in the course of his employment, (2) claimant has lost no compensable time from work, (3) claimant is continuing to undergo medical treatment for his injury, and (4) the statutory medical expenses have been paid for by the employer.

The referee found that "the claimant has an indeterminate degree of partial disability from the injury in that there is an anatomical derangement of the structure of his leg which prevents the leg from performing in its usual and customary fashion." The referee then entered an order suspending benefits since claimant had not yet sustained a compensable loss of earnings due to his injury.

The employer argues that the referee erred by granting claimant a suspension of compensation when he had never been paid benefits pursuant to a compensation agreement, a referee's award of compensation, or a notice of compensation payable. In support of this argument, the employer cites Montgomery v. Workmen's Compensation Appeal Board, 42 Pa. Commonwealth Ct. 143, 400 A.2d 253 (1979), where the claimant sought disability benefits for an occupational disease. The referee found that the claimant was partially disabled from pneumoconiosis, even though he could still perform his regular occupation, and granted an order of suspension. This Court affirmed the Board's reversal of the referee on the basis that "there can be no disability as a result of an occupational disease until such disability 'manifests itself,' and in turn there can be no manifestation of disability where a claimant would be able to continue at his former position." 42 Pa. Commonwealth Ct. at 145-46, 400 A.2d at 254 (emphasis added). The instant case, however, is distinguishable from Montgomery since the claimant here sustained an injury resulting in an observable physical disability, for which he continues to seek medical treatment. By contrast, the claimant in

[ 62 Pa. Commw. Page 505]

    it be shown that the loss in earnings does not result from the disability due to the injury.

In our judgment, the referee made an "award" to claimant by specifically finding that claimant sustained an indeterminate degree of partial disability as a result of the injury to his leg. Cf. Consolidation Coal Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 412, 391 A.2d 14 (1978) (since the referee found that the claimant had not proven a disability, there was no "award" for the referee to suspend).

The Supreme Court, in Hinkle v. H.J. Heinz Co., 462 Pa. 111, 337 A.2d 907 (1975), recognized that a situation similar to that present in this case might be the basis for a suspension order. In Hinkle, the claimant filed a petition with the Board, alleging that he suffered a partial loss of hearing as a result of protracted exposure to noise in the course of his employment. While conceding that he had lost no time from work, the claimant nevertheless contended that he had a right to a compensation award for partial disability and requested that the award be suspended until such time as the disability were reflected in a future loss of earnings. The Supreme Court, in ruling that the claimant had a viable claim, vacated the order dismissing the petition and remanded the matter to the Board for further proceedings.

In addition, the remedial intent of the Act is best served by the above analysis. The purpose of workmen's compensation is to provide benefits to employees who suffer work-related injuries resulting in a loss of earnings. If an employee does not incur an immediate wage loss for an observable physical disability, the protections granted by the Act can only be achieved by issuing a suspension order, which allows the employee up to 500 weeks in which to monitor the course of his disability.

[ 62 Pa. Commw. Page 507]

Accordingly, we enter the following


And Now, this 19th day of November, 1981, the order of the Workmen's Compensation Appeal Board, dated October 7, 1980, granting a suspension of compensation to William J. Airgood, is hereby affirmed.




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