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REINHOLD J. DALLY v. WORKMEN'S COMPENSATION APPEAL BOARD (PULLMAN STANDARD) (05/08/84)

decided: May 8, 1984.

REINHOLD J. DALLY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PULLMAN STANDARD), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Reinhold J. Dally v. Pullman Standard, No. A-80817.

COUNSEL

Richard G. Spagnolli, McArdle, Caroselli, Spagnolli & Beachler, for petitioner.

Michael Relich, with him, Roy F. Walters, Jr., Fried, Kane, Walters and Zuschlag, for respondents.

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

Author: Palladino

[ 82 Pa. Commw. Page 292]

Reinhold J. Dally (Claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) modifying and affirming a referee's decision concluding that his disability had resolved itself into a specific loss of use of the right, lower extremity. We affirm.

Claimant worked as an assembler and fitter for Pullman Standard (Employer). In 1968, Claimant fell from a platform at work, and caught his right foot between a moving floor sheet and a floor jig. He sustained a compound and comminuted fracture of his right ankle and foot. Claimant received workmen's compensation benefits under a compensation agreement and under several supplemental agreements with the Employer.

In 1978 the Employer filed a petition to review the provisions of the existing compensation agreement, asserting that there had been a change in the nature and character of Claimant's condition. In a hearing before a referee, both sides presented medical testimony, for Claimant, Dr. Robert McCorry, and for the Employer, Dr. Samuel Sherman. The referee accepted the testimony of Dr. Sherman, and concluded that as of March 10, 1976 all of Claimant's disability from the 1968 injury had resolved itself into the specific loss of use of Claimant's right, lower extremity.*fn1

[ 82 Pa. Commw. Page 293]

The Board affirmed the decision of the referee, finding that the testimony, taken as a whole, supported the referee's finding of specific loss of use. The Board disagreed with the referee's finding that the loss of use was effective as of March 10, 1976.

The Board held that the date of Dr. Sherman's examination, May 2, 1978, was the first date to which the doctor could testify with a reasonable degree of medical certainty that the specific loss had become effective. Therefore, there was not sufficient evidence on the record to support the referee's March 10, 1976 effective date. The Board struck the March 10, 1976 date, substituted the May 2, 1978 date, and amended the portion of the referee's decision on payments in accordance with this substitution.

This appeal raises three issues. Claimant first argues that the testimony of Dr. Sherman does not support the conclusion of specific loss of use. Claimant's second argument challenges the substitution made by the Board for the effective date of the specific loss of use. Claimant's third argument is that the Board erred in failing to remand the case to the referee for more specific findings about the relationship of Claimant's back trouble to the right, lower extremity. We will address each argument in turn.*fn2

The issue of loss of use of an extremity is a question of fact for the referee to resolve. Klaric v. Workmen's Compensation Appeal Board, 71 Pa. Commonwealth Ct. 91, 93, 455 A.2d 217, 218 (1983). The party ...


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