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DANIEL FREEMAN v. WORKMEN'S COMPENSATION APPEAL BOARD (JONES & LAUGHLIN STEEL CORP.) (08/27/87)

decided: August 27, 1987.

DANIEL FREEMAN, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (JONES & LAUGHLIN STEEL CORP.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Daniel Freeman v. Jones & Laughlin Steel Corp., No. A-86842.

COUNSEL

Ada Guyton, for petitioner.

Michael Relich, with him, Roy F. Walters, Jr., and Michael D. Sherman, Fried, Kane, Walters & Zuschlag, for respondent, Jones & Laughlin Steel Corp.

Judges Craig and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 109 Pa. Commw. Page 33]

This is an appeal by Daniel Freeman, claimant, from an order of the Workmen's Compensation Appeal Board (Board) affirming the referee's decision to grant employer Jones & Laughlin Steel Corporation's Modification Petition.

On February 4, 1981 Freeman injured his right thumb while in the course of employment. He received total disability benefits. On August 21, 1982 employer filed a Petition for Modification alleging that as of February

[ 109 Pa. Commw. Page 344]

, 1981*fn1 claimant's disability had resolved into a specific loss of use of one-half the right thumb. At the referee's hearing, the employer presented the deposition of Dr. Joseph Imbriglia.*fn2 The referee, after consideration of all the evidence, ruled that employer effectively demonstrated that claimant's injury was of the nature of a specific loss of use of the right thumb for all practical intents and purposes. The Board affirmed. On appeal, claimant argues simply that Dr. Imbriglia's testimony supports a loss of use under the industrial use test*fn3 but not under the test for loss of use for all practical intents and purposes. The referee and Board, contends claimant, by accepting Dr. Imbriglia's testimony, have applied the industrial use test.

Our scope of review is limited to determining whether findings are supported by substantial evidence in the record, an error of law was committed or any constitutional rights violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.

Section 306(c)(9) of the Pennsylvania Workmen's Compensation Act (Act)*fn4 reads in relevant part "[f]or all disability resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows: (9) For the loss of a thumb, sixty-six and two-thirds per centum of wages during one hundred weeks." Section 306(c)(16) of the Act, 77 P.S. § 513(16), provides

[ 109 Pa. Commw. Page 35]

    compensation at that same rate for fifty weeks for loss of half the thumb. We must determine, then, considering the record as a whole, whether there is substantial competent evidence to support the referee's findings and conclusions that claimant suffers from a permanent loss ...


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