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M. A. BRUDER & SON v. WORKMEN'S COMPENSATION APPEAL BOARD (THOMAS HARVEY) (12/06/84)

decided: December 6, 1984.

M. A. BRUDER & SON, INC., ET AL., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (THOMAS HARVEY), RESPONDENTS; THOMAS HARVEY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (M. A. BRUDER & SON, INC. & PENNA. MFRS. ASSN. INSURANCE CO.), RESPONDENTS



Appeals from the Orders of the Workmen's Compensation Appeal Board in case of Thomas Harvey v. M. A. Bruder & Sons, Inc., No. A-80813.

COUNSEL

Marc Myers, with him, Howard M. Ellner, for petitioner/respondent, M. A. Bruder & Son, Inc., et al.

George Martin, for respondent/petitioner, Thomas Harvey.

Judges Williams, Jr. and MacPhail, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 86 Pa. Commw. Page 354]

Thomas Harvey fractured and dislocated his left ring finger on November 23, 1977, while employed by M. A. Bruder and Sons, Inc. Temporary total disability benefits were paid under a notice of compensation payable. On June 20, 1979, the employer unilaterally suspended benefits, petitioned to modify the notice of compensation payable and requested a discretionary supersedeas as of that date. The modification petition alleged that Harvey's injury had resulted in specific

[ 86 Pa. Commw. Page 355]

    loss of the finger, the benefits for which are found in Section 306(c) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513(12). The claimant answered and denied that his injury had resolved into a specific loss, challenged the unilateral termination of total disability benefits and requested the immediate resumption of compensation retroactive to June 20, 1979.

The referee found that Harvey's injury had resolved into a specific loss of the finger on November 29, 1978, the date on which Dr. Lawrence H. Schneider, the treating physician, examined claimant and concluded that the injured finger sustained a permanent 75% loss of function. The fact finder then credited the employer for total disability benefits paid after November 29, 1978, the date on which the 30 weeks of specific loss payments should have commenced under Section 306(c). The employer's supersedeas request was retroactively granted as of June 20, 1979.

The Workmen's Compensation Appeal Board affirmed the referee's granting of the modification petition, but awarded compensation between June 20, 1979, the date benefits were unilaterally terminated by the employer, and February 2, 1981, the date of the referee's decision. Notwithstanding the board's repudiation of the referee's grant of a "retroactive supersedeas," the board refused to assess a penalty in accordance with Sections 413(b) and 435(d)(i) of the Act, 77 P.S. §§ 774.1 and 991(d)(i), because no award purportedly existed upon which the penalty could have been imposed. The claimant and employer cross-appealed from the board's order.

The first question is whether substantial evidence supports the referee's finding that claimant lost the use of his left ring finger for all practical intents and

[ 86 Pa. Commw. Page 356]

    purposes.*fn1 Dr. Schneider, an orthopedic surgeon who was the treating physician, testified (by deposition) that the injured finger permanently sustained a 75% loss of function based on the finger's restricted motion and claimant's complaints of pain. This testimony, which was accepted as credible by the referee, was corroborated by the referee's observation of claimant's bent, swollen finger. The medical testimony, which established a 75% functional loss, and the referee's observation amply support the referee's finding that claimant has lost the use of his left ring finger for ...


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