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HARRY KELLER v. WORKMEN'S COMPENSATION APPEAL BOARD (BLAIR STRIP STEEL CORP.) (05/24/85)

decided: May 24, 1985.

HARRY KELLER, JR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BLAIR STRIP STEEL CORP.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Harry Keller, Jr. v. Blair Strip Steel Corp., No. A-82645.

COUNSEL

Phillip L. Clark, Jr., Keller, Pomerico, Leymarie & Clark, P.C., for petitioner.

Richard E. Flannery, Mansell, McKee, Mitsos & Flannery, for respondent, Blair Strip Steel Corp.

Judges MacPhail, Barry and Colins, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 89 Pa. Commw. Page 478]

Harry Keller, Jr. (Claimant) appeals from a decision by the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision to modify

[ 89 Pa. Commw. Page 479]

Claimant's disability benefits to specific loss benefits, pursuant to Section 306(c) of The Pennsylvania Workmen's Compensation Act (Act).*fn1

Claimant suffered a compensable injury while in the course of his employment with Blair Strip Steel Corporation (Employer) on June 26, 1978. Claimant was transferring a coil of steel from a tow motor when the coil slipped and damaged his left foot. Claimant received compensation for this injury at the rate of $195.33 per week.*fn2 He subsequently returned to work and was compensated by a February 6, 1981 supplemental agreement.*fn3 Employer on February 23, 1981, filed a petition for modification of the February 6, 1981 supplemental agreement, alleging that Claimant's disability resolved itself into a 100% loss of use of his left foot for all practical intents and purposes and requested that Claimant's compensation be modified effective June 26, 1978.

Following a hearing the referee found, based on the deposition and written report by Dr. Vincent P. Rogers, Claimant's treating physician, that Claimant's disability due to his June 26, 1978 work injury resolved itself into a permanent loss of 50% of his left foot for all practical intents and purposes and that Claimant did not suffer from any other disability related to this injury. The referee found that the Employer met its burden of proof to modify the compensation agreement and ordered the Employer to pay Claimant compensation at a rate of $195.33 per week commencing June 26, 1978 and continuing for 250 weeks for the 50% permanent

[ 89 Pa. Commw. Page 480]

    loss of his left foot and an additional 25 weeks for the healing period. This award was subject to a credit to the Employer for all compensation previously paid to Claimant since June 26, 1978. The referee also denied Claimant's petition for counsel fees.

Claimant appealed the referee's decision to the Board, alleging that the referee erred in finding that a partial loss of use of the left foot is equivalent to loss of use for all practical intents and purposes. ...


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