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ALBERT E. KLARIC v. WORKMEN'S COMPENSATION APPEAL BOARD (NATIONAL CASTINGS (01/11/83)

decided: January 11, 1983.

ALBERT E. KLARIC, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (NATIONAL CASTINGS, DIV. MIDLAND ROSS CORP.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Albert E. Klaric v. National Castings Div. Midland Ross Corp., No. A-78669.

COUNSEL

Anthony Perfilio, Rodgers, Perfilio, Heiman & Sewinsky, P.C., for petitioner.

W. Allen Dill, Fruit, Dill, Goodwin & Scholl, for respondent, National Castings Div., Midland Ross Corp.

President Judge Crumlish, Jr. and Judges MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail. Judge Doyle dissents.

Author: Macphail

[ 71 Pa. Commw. Page 92]

Albert E. Klaric (Claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision suspending Claimant's workmen's compensation benefits under a notice of compensation payable and denying compensation for the alleged permanent loss of the use of his right foot. We affirm.

Claimant sustained a crushing injury to his right foot with open fractures of both bones of his right lower leg on April 1, 1975 while in the course of his employment as a millwright with the National Castings Division of Midland-Ross Corporation (Employer). Claimant subsequently received compensation benefits pursuant to a notice of compensation payable entered on April 14, 1975. Claimant returned to work with no loss of earnings on March 18, 1977. The Employer, accordingly, filed a termination petition which was later amended to request a suspension, rather

[ 71 Pa. Commw. Page 93]

    than a termination, of compensation benefits. Claimant's answer to the petition admitted his return to work with no reduction in wages, but alleged that his injury had resulted in the permanent loss of the use of his right foot.*fn1 Following a hearing on the petition and Claimant's answer thereto, the referee ordered that compensation benefits be suspended effective March 18, 1977 and found that Claimant had not lost the use of his right foot for all practical intents and purposes. The Board affirmed and Claimant perfected his appeal to this Court.

Two issues have been raised for our consideration: 1) whether or not the referee erred in finding that Claimant had not lost the use of his right foot for all practical intents and purposes*fn2 and 2) whether the referee erred in sustaining the Employer's objection to certain testimony offered by the Claimant.

The issue of loss of use of an extremity is a question of fact for the referee to resolve. McGraw Edison/Power Systems Division v. Workmen's Compensation Appeal Board, 64 Pa. Commonwealth Ct. 111, 439 A.2d 868 (1982). When determining issues of fact the referee must make credibility decisions, resolve evidentiary conflicts and weigh the evidence presented to him. In so doing the referee 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

[ 71 Pa. Commw. Page 94]

(1977). In specific loss cases it is not necessary that the injured member be of absolutely no use in order for the claimant to qualify for compensation benefits. Instead, the proper test is whether the claimant has suffered the permanent loss of use of the injured part of his body for all practical intents and purposes. ...


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