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MCGRAW EDISON/POWER SYSTEM DIV. v. COMMONWEALTH PENNSYLVANIA (01/13/82)

decided: January 13, 1982.

MCGRAW EDISON/POWER SYSTEM DIV., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ROBERT L. MCGOWAN, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Robert L. McGowan v. McGraw Edison/Power Systems Div., No. A-76355.

COUNSEL

Raymond F. Keisling, Will & Keisling, for petitioner.

Leonard P. Kane, Jr., Fried, Kane, Walters & Zuschlag, for respondent, Robert L. McGowan.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Blatt

[ 64 Pa. Commw. Page 112]

McGraw Edison Power Systems Division (employer) appeals here from an order of the Workmen's Compensation Appeal Board (Board) affirming the order of the referee granting compensation benefits to Robert L. McGowan (claimant) for loss of use of his lower left leg pursuant to Section 306(c)(5) and (25) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 513(5) and (25).

On October 10, 1955, the claimant, a mechanical assembler, sustained a work-related injury to his left knee when he slipped while draining oil from a tank on the employer's premises. He received compensation benefits thereafter until he returned to work on January 10, 1977, after which date he received partial disability compensation until October 8, 1978. On February 23, 1977, he filed a review petition and on November 21, 1978, after a hearing, the referee found that the claimant had suffered the loss of use of his lower left leg for all practical intents and purposes and awarded benefits accordingly. On December 15, 1978, the Board affirmed the referee and this appeal followed. We affirm.

[ 64 Pa. Commw. Page 113]

Where, as here, the party with the burden of proof has prevailed below, our scope of review, and that of the Board when it take no additional evidence, is limited to determining whether or not constitutional rights were violated, an error of law was committed or whether or not any necessary finding of fact was unsupported by substantial evidence. D.L. Clark Co. v. Workmen's Compensation Appeal Board, 49 Pa. Commonwealth Ct. 535, 411 A.2d 1269 (1980). We must view the evidence in the light most favorable to the party who prevailed below, giving him the benefit of all inferences reasonably deductible therefrom. Curran v. Walter E. Knipe and Sons, Inc., 185 Pa. Superior Ct. 540, 138 A.2d 251 (1958).

The employer asserts that the claimant has failed to meet his burden of proving that he suffered a loss of use of his left leg for all practical intents and purposes inasmuch as the record establishes that, while the claimant sustained an injury to his knee, he retains significant function and sensation in his lower left leg. The issue of whether or not an injured employee has suffered the loss of use of an extremity is, of course, a question of fact, Gindy Manufacturing Co. v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth Ct. 128, 378 A.2d 492 (1977), for the referee and not for this Court. Curran. It is the role of the referee as factfinder to determine the credibility and weight to be accorded the evidence as well as to resolve evidentiary conflicts, and in so doing he may accept or reject the testimony of any witness, including medical experts, in whole or in part. American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977). If the testimony accepted constitutes substantial evidence, which is deemed to be such relevant evidence as a reasonable mind might

[ 64 Pa. Commw. Page 114]

    accept as adequate to support a conclusion, Katz v. Evening Bulletin, 485 Pa. 536, 403 A.2d 518 (1979), then we are precluded from disturbing findings supported by the testimony, even in the presence of evidence to the contrary. American Refrigerator.

The proper test to be used under Section 306(c) is well-established:

"The test to be applied is whether the claimant has suffered 'the permanent loss of use of the injured member for all practical intents and purposes.' This is not the same test as the 'industrial use' test although the two would often bring the same result if applied in particular cases. Generally, the 'all practical intents and purpose' test requires a more crippling injury than the 'industrial use' test in order to bring the case under Section 306(c) supra. However it is not necessary that the injured member of the claimant be of absolutely no use in order for him to have lost the use of it for all practical intents and purposes. (Emphasis added.)"

Reading Tube Corp. v. Workmen's Compensation Appeal Board, 12 Pa. Commonwealth Ct. 45, 47, 315 A.2d 678, 679 (1974) (quoting Curran, 185 Pa. Superior Ct. at 547, 138 A.2d at 255).

The claimant's medical witness, Dr. Eric Minde, a physician board-certified in physical medicine and rehabilitation, testified that the claimant had, for all practical intents and purposes, sustained "the loss of use -- which I often state as 50 percent of the left lower extremity, but which can properly be stated as loss of use of the left lower leg." He attributed the condition to the claimant's injury of October 10, 1975 and opined that it was "in all ...


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