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ROBERT E. CRESS v. WORKMEN'S COMPENSATION APPEAL BOARD (TRI-STATE ENVELOPE COMPANY) (GREATER NEW YORK MUTUAL INSURANCE COMPANY) (03/11/88)

decided: March 11, 1988.

ROBERT E. CRESS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (TRI-STATE ENVELOPE COMPANY) (GREATER NEW YORK MUTUAL INSURANCE COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Robert E. Cress v. Tri-State Envelope Company, No. A-91136.

COUNSEL

Helen M. Koschoff, for petitioner.

Alan P. Schoen, with him, James E. Pocius, Lenahan & Dempsey, for respondent, Tri-State Envelope Company.

Judges Doyle, Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 114 Pa. Commw. Page 364]

Robert E. Cress, the claimant, appeals an order of the Workmen's Compensation Appeal Board (Board) which reversed a referee's decision awarding the claimant benefits for the loss of use of his hand.

While working for Tri-State Envelope Company, the claimant, on February 16, 1981, suffered a crushing injury to his right hand when it was caught in a machine. Claimant's hand and forearm were placed in a cast. Claimant received benefits for total disability pursuant to a notice of compensation payable from the date of the injury until he returned to work on May 8, 1981. Because of continuing pain, claimant had surgery performed on his right wrist on July 23, 1981. Claimant again collected benefits from July 22, 1981 until December 7, 1981 when he again returned to work.

On September 11, 1982, the claimant filed a claim petition alleging that he had lost the use of his right hand for all practical intents and purposes and sought the benefits provided for in Section 306(c) of The Pennsylvania Workmen's Compensation Act, Act of July 2, 1915, P.L. 736, as amended, 77 P.S. ยง 513. Following hearings, the referee found that claimant had sustained

[ 114 Pa. Commw. Page 365]

    the loss of use of his right hand and awarded benefits. The employer appealed to the Board which reversed, holding that the claimant had failed to present evidence which supported the referee's finding concerning specific loss of use of the right hand. This appeal by the claimant followed.

Our scope of review is limited to determining whether one's constitutional rights were violated, whether an error of law was committed or whether the referee's necessary factual findings were supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). As already mentioned, the Board concluded that the referee's factual finding concerning the specific loss of use of the hand was not supported by substantial evidence. Claimant now contends that this conclusion of the Board is erroneous.

At one of the hearings, the claimant testified about his hand and the limitations concerning its use. Based on this testimony, the referee made the following findings:

12. The Claimant testified that he has difficulty performing his job at work and has to utilize his left hand to perform various functions. The Claimant continues to suffer from a toothachetype thumping pain in his right hand. The Claimant testified that he cannot lift with his right hand, has difficulty opening a car door with his right hand, that he cannot use a power tool such as a drill with his right hand, that he cannot cut ...


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