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MCGRAW EDISON COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (BUECHEL (04/23/86)

decided: April 23, 1986.

MCGRAW EDISON COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BUECHEL, JR.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Adam Buechel, Jr. v. McGraw-Edison Company, No. A-84760.

COUNSEL

Carl J. Smith, Jr., Stephen I. Richman & Partners, for petitioner.

Leonard P. Kane, Jr., Fried, Kane, Walters & Zuschlag, for respondent, Adam Buechel, Jr.

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

Author: Macphail

[ 96 Pa. Commw. Page 496]

The McGraw-Edison Company (Employer) appeals from a decision by the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision to reinstate a Notice of Compensation Payable to Adam Buechel, Jr. (Claimant). We affirm.

On October 21, 1978, Claimant suffered a compensable injury in the course of his employment as a tube barrier with Employer when his left hand got caught between the two rollers of the machine he was operating. The injury required extensive surgery, including skin grafts. Pursuant to a Notice of Compensation Payable dated November 27, 1978, Claimant received compensation for his injured left hand at a weekly disability rate of $205.22. Six supplemental agreements were subsequently entered into, either suspending compensation when Claimant returned to light duty work with no loss of earning power or reinstating compensation at the rate of $205.22 per week when Claimant's total disability recurred. A corrected supplemental agreement dated May 28, 1980 (correcting a May 22, 1979 supplemental agreement) stated that Claimant no longer received compensation as of November 14, 1979, because Claimant returned to work with no loss of earning power.

On or about May 7, 1980, Claimant filed a petition for reinstatement of compensation benefits alleging that he had sustained certain specific losses as a result of the October 21, 1978 work-related injury. This petition was treated by the referee as a petition for reinstatement. Following a hearing, the referee found, based on his own observations of Claimant's left hand and the deposition and written report of Dr. Norman Minde, that

[ 96 Pa. Commw. Page 497]

Claimant suffered the permanent loss of use of the left hand for all practical intents and purposes. The referee set aside the May 22, 1979 supplemental agreement and reinstated the original notice of compensation payable.

Employer appealed the referee's decision to the Board, alleging that the referee erred in finding that Claimant suffered the loss of use of his left hand for all practical intents and purposes. Specifically, employer contended that the medical testimony of Dr. Norman Minde was incompetent and incredible because Dr. Minde's deposition finding loss of use of Claimant's left hand differed from his prior report which found only a 50% permanent loss of the left hand without an adequate basis in fact. The Board determined that the deposition was merely a clarification of his earlier report and found Dr. Minde's testimony competent. The Board also noted that the referee observed Claimant's hand and relied on his own observations as well as Dr. Minde's medical opinion in finding loss of use of the hand for all practical intents and purposes. The Board affirmed the referee and this appeal followed.

The issue of the loss of use of an extremity is a question of fact for the referee to resolve. Klaric v. Workmen's Compensation Appeal Board, (National Castings, Div. Midland Ross Corp.) 71 Pa. Commonwealth Ct. 91, 455 A.2d 217 (1983). The party seeking to establish a specific loss is required to show that Claimant has suffered the permanent loss of use of the injured part of his body. Id. The injured body part need not be of absolutely no use in order to qualify for specific loss benefits. Id. Where the party with the burden of proof prevailed before the referee and the Board did not receive additional evidence, as here, we need only determine whether constitutional rights were violated, an error of law was committed or necessary findings of fact

[ 96 Pa. Commw. Page 498]

    were not supported by substantial evidence. United States Steel Corporation v. Workmen's Compensation Appeal Board, 59 Pa. ...


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