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PAUL BURKEY v. WORKMEN'S COMPENSATION APPEAL BOARD (NORTH AMERICAN ROCKWELL) (03/01/84)

decided: March 1, 1984.

PAUL BURKEY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (NORTH AMERICAN ROCKWELL), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Paul E. Burkey v. North American Rockwell, No. A-80797.

COUNSEL

Marc S. Jacobs, Galfand, Berger, Senesky, Lurie & March, for petitioner.

D. Frederick Muth, Rhoda, Stoudt & Bradley, for respondent, North American Rockwell.

Judges Blatt, MacPhail and Doyle. President Judge Crumlish, Jr., and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by Judge Doyle.

Author: Doyle

[ 80 Pa. Commw. Page 541]

This case involves a claim by Paul E. Burkey (Claimant) for compensation for the loss of use of one-half of his right thumb under Section 306(c) of The Pennsylvania Workmen's Compensation Act*fn1 (Act). Claimant sustained a work-related injury to his thumb while operating a rip saw. A referee's award for loss of use of one-half of the thumb was set aside by the Workmen's Compensation Appeal Board (Board) and was remanded to the referee for a determination of

[ 80 Pa. Commw. Page 542]

    whether the Claimant had lost the use of one-half of his thumb for all practical intents and purposes.*fn2 On remand, the referee, without taking further evidence, concluded that Claimant had failed to prove a loss of use of one-half of the thumb for all practical intents and purposes and disallowed compensation. The Board affirmed and appeal to this Court followed.

The sole issue raised by Claimant in this appeal is whether the Board erred in remanding the initial decision of the referee. Claimant urges that the remand was error because the initial decision was based on substantial competent evidence and included findings of fact on all crucial issues. The Board urges that the initial decision lacked a finding of fact on a crucial issue and that the remand was therefore proper. Forbes Pavillion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975); see also L & S Tasta Pizza, Inc. v. Lundy, 27 Pa. Commonwealth Ct. 373, 366 A.2d 592 (1976).

The pivotal finding of fact by the referee in the initial decision is as follows:

12. Based on the claimant's unrefuted medical evidence the Referee finds that the claimant suffered a 50% permanent loss of function of the right thumb as a whole as a result of the injury sustained on December 3, 1974. (Emphasis added.)

The referee concluded:

Claimant proved by sufficient competent evidence that he sustained an ...


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