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BETHLEHEM MINES CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD (KOZLOVAC) (08/10/87)

decided: August 10, 1987.

BETHLEHEM MINES CORPORATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (KOZLOVAC), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Nicholas M. Kozlovac v. Bethlehem Mines Corporation, No. A-88350.

COUNSEL

Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, for petitioner.

Timothy P. Creany, United Mine Workers of America, for respondent.

Judges MacPhail and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 108 Pa. Commw. Page 318]

Bethlehem Mines Corporation (Employer) appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's order. We reverse the Board.

Nicholas M. Kozlovac (Claimant) suffered a crush injury to his left foot on February 10, 1982 while in the course of his employment. Employer began paying total disability benefits pursuant to a notice of compensation payable on February 11, 1982. On July 8, 1983, Employer

[ 108 Pa. Commw. Page 319]

    filed a modification petition alleging that Claimant had lost the use of his left foot for all practical intents and purposes and hence was entitled only to the compensation provided for by 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.

On May 11, 1984, the referee found that Claimant lost the use of his left foot effective January 31, 1984, the date Employer's medical witness was deposed.*fn1 The referee awarded benefits for a period of 250 weeks, pursuant to Section 306(c) of the Act, with a credit to Employer for payments made after January 31, 1984. Both Employer and Claimant appealed from the referee's decision. The Board affirmed. Only Employer has appealed from the Board's decision.

Our scope of review is limited to a determination of whether constitutional rights have been violated, an error of law committed, or whether the findings are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.

The referee made the following pertinent findings of fact:

5. In support of its Modification Petition, the defendant-employer offered the medical deposition of William R. Davison, M.D., taken on January 31, 1984. It was the professional medical opinion of Doctor Davison that the claimant had a loss ...


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