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JOYCE WESTERN CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD (FICHTORN) (01/15/87)

decided: January 15, 1987.

JOYCE WESTERN CORPORATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (FICHTORN), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of William P. Fichtorn v. Joyce Western Corporation, No. A-89524.

COUNSEL

Terry L. M. Bashline, Baginski & Bashline, for petitioner.

Leonard E. Price, for respondent, William P. Fichtorn.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 103 Pa. Commw. Page 205]

The issue presented to us in this workmen's compensation case is whether or not the referee, affirmed by the Workmen's Compensation Appeal Board (Board), properly awarded compensation to Claimant, William P. Fichtorn, for loss of vision of his right eye under Section 306(c)(7) of The Pennsylvania Workmen's Compensation Act (Act).*fn1

Claimant was injured while an employee of Joyce Western Corporation, Petitioner, on November 23, 1977, when he sustained a blow to his right eye, for

[ 103 Pa. Commw. Page 206]

    which he was paid compensation at the total disability rate from December 2, 1977 through January 10, 1978, on which latter date he returned to work without loss in earnings. The case arises on defendant's Petition to Terminate on which there have been three decisions by a referee and three reviews and orders on appeals by the Board. Although there was an effort by Petitioner to amend the Termination Petition to a Petition for Suspension, the ultimate decision, as noted by the referee, was the adjudication on the basis of the Termination Petition. Limited by stipulation to the sole issue as to the extent of lost vision, the referee found:

3. On or about May 15, 1979, defendant filed a Petition for Termination, which was later amended to be a Petition for Suspension and was later remanded to the Referee from the Appeal Board as a Remanded Termination Petition.

4. After various hearings, it was stipulated between the parties that the only issue for determination by the Referee was whether or not the claimant has lost the use of his right eye for all practical intents and purposes.*fn2

[ 103 Pa. Commw. Page 207]

As regards the state of Claimant's vision in the injured eye, the referee found:

5. The deposition of Robert H. Yockey was taken on behalf of the claimant. Dr. Yockey, a Board Certified opthalmologist, testified that the claimant was developing a cataract and an adhesion of the iris in his right eye at the place of the original injury. His vision was 20/200, with best correction and that he had sustained an 'industrial vision loss'. The doctor stated that his vision could be restored if he underwent a cornea implant, but that there was some risk of losing all sight in that eye. The doctor stated the claimant was uninterested in the operation.

6. The deposition testimony of John M. Mikulla, M.D. was taken on behalf of the defendant. Dr. Mikulla, a Board Certified opthalmologist, [sic] had findings similar to those of Dr. Yockey. He did feel that there was a 95 percent chance of successfully removing the cataract and thus improving the claimant's vision. The doctor stated that uncorrected, the eye had no useful function.

In the controversy here are the following three findings:

7. After a careful review of the evidence, your Referee finds that while the claimant did sustain an injury to his right eye, which, uncorrected, has caused him to lose the use of said eye, the claimant could undergo surgery with only a minimal risk of failure which would restore sight to his right eye.

8. Your Referee finds that the claimant's specific loss has been caused by his own refusal to undergo corrective surgery.

9. Your Referee finds that the claimant's refusal to undergo corrective surgery is unreasonable

[ 103 Pa. Commw. Page 208]

    under the circumstances. However, your Referee does not have the power to order claimant to undergo surgery.

Finally, the last of the referee's findings, and the one specifically adopted by the Board, reads:

10. Claimant has sustained a loss of use of his right eye for all intents and purposes as a result of said injury.

The referee's sole conclusion of law is ...


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