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BABCOCK & WILCOX COMPANY v. COMMONWEALTH PENNSYLVANIA (12/03/81)

decided: December 3, 1981.

BABCOCK & WILCOX COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CHARLES FORREST, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Charles Forrest v. Babcock & Wilcox Company, No. A-78174.

COUNSEL

George John Steffish, III, for petitioner.

Roy F. Walters, with him Leonard P. Kane, Jr., Fried, Kane, Walters & Zuschlag, for respondent, Charles Forrest.

Judges Williams, Jr., MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 63 Pa. Commw. Page 62]

Babcock & Wilcox Company (Petitioner) appeals from an order of the Workmen's Compensation Appeal Board (Board) which reversed a referee's decision and awarded compensation to Charles Forrest (Claimant) for the loss of use of one-half of his right thumb for all practical intents and purposes, pursuant to Section 306(c) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 513.

Claimant sustained an injury to his right thumb on July 19, 1978 while in the course of his employment

[ 63 Pa. Commw. Page 63]

    with Petitioner and was paid compensation pursuant to a notice of compensation payable beginning on July 28, 1978. Claimant returned to work on October 23, 1978 and executed a final receipt on October 24. On May 23, 1979, Claimant filed a petition to review the notice of compensation payable, later amended to be a petition to set aside the final receipt, alleging that he had lost the use of one-half of his right thumb as a result of his work-related injury. Based on two conflicting medical reports and the referee's personal observation of the injured thumb at a hearing, the referee determined that Claimant "as a result of his July 19, 1978 injury continues to suffer an undetermined partial disability involving his right thumb which is not at this time reflected in a loss of earning power." The referee also concluded that Claimant had not suffered the loss of use of one-half of his right thumb. Accordingly, the referee set aside the final receipt but ordered that compensation be suspended effective October 23, 1978, the date Claimant returned to work. On appeal, the Board reversed the referee's order based on the Board's own observation of the injured thumb.*fn1

The issue raised by the instant appeal is whether the Pennsylvania Supreme Court's recent decision in

[ 63 Pa. Commw. Page 64]

    evidence and substitute its own findings of fact for those of the referee. . . . Cases involving loss of use do not fall within any exception to this rule.

Id. at 207, 413 A.2d at 1087 (emphasis added, citation omitted). In the instant case, the referee's decision was clearly based on competent evidence*fn3 and the Board did not find otherwise. Thus, if McGartland is applied to the instant case, the Board must be reversed for having taken additional evidence and making ...


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