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MATHIES COAL COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (HENRY) (02/24/88)

decided: February 24, 1988.

MATHIES COAL COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HENRY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Dolan Henry v. Mathies Coal Company, No. A-90831.

COUNSEL

George Stipanovich, Strassburger, McKenna, Gutnick & Potter, for petitioner.

Virginia L. Desiderio, Melenyzer & Tershel, for respondent, Dolan Henry.

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

Author: Barry

[ 114 Pa. Commw. Page 12]

Mathies Coal Company (Mathies) appeals an order of the Workmen's Compensation Appeal Board (Board)

[ 114 Pa. Commw. Page 13]

    which affirmed a referee's decision to dismiss Mathies' petition to modify benefits from total disability to a specific loss of the left little finger under Section 306(c) of The Pennsylvania Workmen's Compensation Act.*fn1 We vacate this decision and remand to the referee for further consideration on the question of whether there has been a specific loss of the left little finger.

On January 29, 1982, Dolan Henry (claimant) suffered an injury to his left little finger when a concrete block fell and pinched this finger on the side of a supply car. As a consequence of this injury, the claimant began to receive, pursuant to a notice of compensation payable, weekly benefits for total disability.

Mathies filed a petition for modification alleging that, as of December 3, 1984, all impairment or disability to the left little finger had resolved into a permanent loss or specific loss of use of that finger for all practical intents and purposes. In the claimant's answer to this petition, he alleged that the injury was not a specific loss. The claimant also alleged, in this answer, that he remained totally disabled as the injury to his left little finger had resulted in the total incapacity of the left hand.

At a hearing before the referee, the claimant testified that he experienced pain and stiffness of the finger and that, because the left little finger turned into the palm of his left hand, he was unable to use this hand for any work related purpose. Both Mathies and the claimant presented medical experts. Mathies' expert, Dr. Katz, testified that the claimant had lost all use of his left little finger for all practical intents and purposes

[ 114 Pa. Commw. Page 14]

    and the injury was confined to the left little finger. The claimant's expert, Dr. Mahalingappa, testified that he had attempted to rehabilitate the finger, that his rehabilitation was unsuccessful and that his favored course of treatment was a ray resection or cosmetic amputation.

Based on all the testimony taken at the hearing, the referee found as a fact that:

Henry's left little finger is stiff; it is swollen and numb; when he makes a fist the left little finger goes under his other fingers which prevents him from making a fist; he can't grasp objects and his left hand as a result thereof is not functional. Henry's injury and said disability is to his left hand as well as his left finger. However, on the basis of the said medical evidence Henry has not sustained the permanent loss of use of his left hand for all practical intents ...


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