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FRANK IREY v. WORKMEN'S COMPENSATION APPEAL BOARD (GEORGE J. KLEMENCIC (07/19/82)

decided: July 19, 1982.

FRANK IREY, JR., INC. AND AMERICAN STATES INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GEORGE J. KLEMENCIC, SR.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of George J. Klemencic, Sr. v. Frank Irey, Jr., Inc., Nos. A-79476 and A-79477.

COUNSEL

Fred C. Trenor, Meyer, Darragh, Buckler, Bebenek & Eck, for petitioners.

Richard L. Rosenzweig, Rosenzweig, Rosenzweig & Burton, for respondents.

Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 67 Pa. Commw. Page 513]

George J. Klemencic, Sr., (claimant) suffered multiple injuries in a forty foot fall while pursuing his occupation as a welder employed by Frank Irey, Jr., Inc. (Irey). The Workmen's Compensation Appeal Board affirmed orders of a referee awarding compensation to the claimant, counsel fees and expenses incurred by the claimant in obtaining a third-party settlement to which the employer was subrogated

[ 67 Pa. Commw. Page 514]

    pursuant to Section 319 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 671 and in addition counsel fees of two hundred dollars because Irey had unreasonably contested its Section 319 liability. The employer Irey has appealed. We affirm in all respects.

Before making a workmen's compensation claim, the claimant sued Irey and third parties in common pleas court based on the defendants' asserted negligence. A jury by special verdict found the claimant to be Irey's employee so that the latter was not answerable for negligence and the judgment in Irey's favor was not appealed. The claims against the other two defendants were settled for $20,000. As part of the settlement agreement the parties, including Irey, agreed that $5,000 of the settlement amount would be applied as a credit against workmen's compensation benefits accrued to the time of settlement and that the balance would be applied against future compensation. The claimant then filed a workmen's compensation claim petition for injuries to his left hand for which he claimed loss of use, and on account of separate injuries to his face, mouth, left elbow and left leg. The claimant also filed a review petition with the Workmen's Compensation Appeal Board, alleging that Irey refused to pay its pro rata share of counsel fees and expenses of the third party recovery, in violation of Section 319.

The referee found with respect to the claim petition that the claimant was temporarily totally disabled from the date of the injury, December 23, 1975, until August 24, 1978; that from August 24, 1978 the claimant suffered loss of use of the left hand, for all practical intents and purposes; and that from August 24, 1978 the claimant was partially disabled due to the

[ 67 Pa. Commw. Page 515]

    injuries other than those to the left hand; he awarded appropriate benefits. With respect to the petition for review, the referee held Irey liable under Section 319 for $9651.51 in counsel fees and expenses incurred in the third party suit, and in addition awarded the claimant two hundred dollars for Irey's claim of unreasonable contest.

Irey confronts us with a battery of questions, exploring virtually every aspect of this case.

It first says that the record evidence does not support a finding of specific loss of use of the claimant's left hand, Section 306(c) of the Act, 77 P.S. § 513, on the ground that the testimony of the claimant's medical expert was "conclusionary." While an expert opinion responding to a question stating the legal standard without other basis, such as a description of the physiological characteristics of the injury, may indeed be inadequate support for a finding, see Motor Freight Express v. Workmen's Compensation Appeal Board, 59 Pa. Commonwealth Ct. 415, 429 A.2d 1272 (1981), there was much more than that here. Dr. Pifer, the claimant's medical witness, described the claimant's injury in detail in support of his conclusion that the claimant had lost 75% of the use of his hand for all practical intents and purposes.

Irey also asserts that the evidence is insufficient to support a finding of loss of use of the claimant's left hand since much of the testimony on that issue refers to the claimant's left wrist. The claimant's left wrist was so badly injured that it will never again function as a wrist. Some of the bones of the wrist were removed and the forearm was fused directly to the remaining wrist bones and to the hand. Plainly, as claimant's medical expert testified, inability to move one's wrist necessarily limits the functional ability of the hand.

[ 67 Pa. Commw. Page 516]

Irey next contends that the referee erred in directing it to pay partial disability benefits. It says that only the question of specific loss of use of the hand was at issue; that the effects of the other injuries were never "clearly an issue." We disagree. In his claim petition the claimant, in describing his injuries, included injuries to his "face, mouth, left elbow and left leg." The claimant and his medical expert testified as to injuries other than to the left hand. Irey's trial counsel asked only one cursory question on that point on cross-examination, and offered no rebuttal testimony. Not only does the evidence sufficiently support the referee's findings, on that point, Irey failed to question these findings in its appeal to the Appeal Board. Questions not raised below will not be raised on appeal. Mountz v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 583, 382 A.2d 507 (1978).

Irey also complains of the referee's findings used in the computation of benefits as to the claimant's weekly wage. At the hearing counsel for the claimant introduced without objection cancelled paychecks and paystubs for the approximate two week period during which the claimant was employed by Irey, ...


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