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STEVE HUTZ v. WORKMEN'S COMPENSATION APPEAL BOARD (STEFANAK & SON) (05/13/88)

decided: May 13, 1988.

STEVE HUTZ, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (STEFANAK & SON), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Steve Hutz v. Stefanak & Son, No. A-89698.

COUNSEL

Richard G. Spagnolli, Caroselli, Spagnolli & Beachler, for petitioner.

J. Lawson Johnston, Dickie, McCamey & Chilcote, P.C., for respondent, Stefanak & Son.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Dissenting Opinion by Senior Judge Barbieri.

Author: Palladino

[ 116 Pa. Commw. Page 163]

Steve Hutz (Petitioner) appeals from an order of the Workmen's Compensation Appeal Board (Board)

[ 116 Pa. Commw. Page 164]

    amending the referee's order to reflect that compensation for Petitioner's specific loss award became due and payable on November 5, 1982 and not May 2, 1974, and assessing statutory interest as of November 5, 1982. We affirm.

Petitioner was employed by Stefanak and Son (Employer) as a sheet metal welder. On February 20, 1973, Petitioner sustained a crushing injury to his right hand and four fingers during the course of his employment. As a result of this injury, Petitioner received workmen's compensation from February 21, 1973 to October 28, 1973 pursuant to a Notice of Compensation Payable. On October 29, 1973 Petitioner returned to work. Petitioner worked for approximately two months and was then laid off by Employer.

On October 15, 1982, Petitioner filed a modification petition alleging that as a result of the injury on February 20, 1973, he had lost the use of 100% of his right index, middle, ring and little finger for all practical intents and purposes. On January 25, 1985, the referee granted Petitioner's modification petition.

The referee found that in a report submitted by Dr. McClain on April 30, 1974 and received by Employer on May 2, 1974, Dr. McClain stated that it was his opinion that Petitioner "had approximately 50% permanent physical impairment and loss of physical function in each individual finger." Finding of fact no. 11. On the basis of this report, the referee found that Employer had notice of Petitioner's losses of use on April 30, 1974. Finding of fact no. 13. Also, the referee concluded as a matter of law that Employer had proper notice of Petitioner's specific losses on or about May 2, 1974. Conclusion of Law no. 7. The referee awarded Petitioner compensation payable from May 2, 1974 and assessed interest as of that date.

Employer appealed the referee's award alleging that the evidence did not support the referee's finding that

[ 116 Pa. Commw. Page 165]

Employer had notice of Petitioner's losses of use on April 30, 1974 and that the referee's conclusion of law that Employer had notice on or about May 2, 1974 was in error. The Board concluded that Dr. McClain's report was not sufficient competent evidence to support the referee's finding that Employer had notice of Petitioner's losses of use on April 30, 1974. The Board concluded that Employer did not have notice of Petitioner's specific loss claim until Petitioner filed his modification petition on October 15, 1982. The Board amended the referee's order accordingly, making compensation for Petitioner's specific loss award due and payable on November 5, 1982, and assessing statutory interest as of November 5, 1982.

On appeal to this court,*fn1 Petitioner contends that the Board erred in amending the referee's order. Petitioner contends that Dr. McClain's report constitutes substantial evidence to support the referee's finding that Employer received notice on April 30, 1974. Petitioner maintains that compensation should be ...


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