Appeal from the Order dated the 15th day of January, 1987, in the Commonwealth Court at Docket No. 3277 C.D. 1985, affirming the Order dated the 8th day of November, 1985 in the Workmen's Compensation Appeal Board at Docket No. A-89524, Pa. Commw. Ct. ,
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Larsen, J., files a dissenting opinion in which Papadakos, J., joins.
On November 23, 1977, appellee William P. Fichtorn was injured in the course of employment with appellant Joyce Western Corporation. The injury occurred while appellee, who was clearing a pipeline of vegetation, was struck in the right eye with a tree limb. Compensation was paid at the total disability rate of $199 per week from December 2, 1977, to January 10, 1978. Appellee returned to work on the latter date without loss in earnings.
On May 15, 1979, appellant filed a Petition for Termination with the Workmen's Compensation Appeal Board (the "Board").*fn1 Two decisions by the referee below, filed in 1981 and 1982, had been remanded by the Board to the
referee upon appeal by Mr. Fichtorn, with instructions to make specific findings of fact and conclusions of law. It is the third decision of the referee which forms the basis of the instant appeal.
The parties stipulated that the sole issue before the referee was "whether the claimant has sustained a specific loss of his eye." The referee issued the following conclusion of law: "Claimant has lost the use of his right eye for all practical intents and purposes," and pursuant thereto, ordered that claimant receive compensation from his employer or its insurance carrier for the specific loss of his eye.*fn2 The referee made the following findings of fact which go to the heart of the controversy:
7. After a careful review of the evidence, your Referee finds that while the claimant did sustain an injury to his right eye, which, uncorrected, has caused him to lose the use of said eye, the claimant could undergo surgery with only a minimal risk of failure which would restore sight to his right eye.
8. Your Referee finds that the claimant's specific loss has been caused by his own refusal to undergo corrective surgery.
9. Your Referee finds that the claimant's refusal to undergo corrective surgery is unreasonable under the circumstances. However, your Referee does not have the power to order claimant to undergo surgery.
The Board reviewed the referee's decision pursuant to appeals taken by each party. Although the Board recognized that the findings of fact quoted above do not support the referee's Order, it upheld the referee's Decision and Order on the theory that sufficient competent evidence had been adduced at the hearing to support the referee's finding of fact pertinent to the stipulated issue. The Board further concluded that the findings of fact in question are "superfluous
and have no bearing whatsoever on the referee's decision awarding a specific loss."
An appeal was taken by appellant to the Commonwealth Court, which affirmed the decision of the Board. The Commonwealth Court found that the stipulation eliminated the issue of the reasonableness of the corrective surgery, and that the Board properly determined that claimant sustained a "compensable loss of vision and use of his right eye." Joyce Western Corporation v. Workmen's Compensation Appeal Board (William P. Fichtorn), 103 Pa. Commw.Ct. 204, 210, 519 A.2d 1107, 1110 (1987). Appellant filed a petition for allowance of appeal, requesting this Court to consider whether specific loss benefits should be awarded when the injury sustained could be corrected by a reasonable surgical procedure. We granted the petition and now reverse.
There are three recognized types of compensable disability under the Workmen's Compensation Act (the "Act"): total, partial, and specific loss disability. Sections 306(a), (b), (c), 77 P.S. §§ 511, 512, 513 (Supp. 1987). These categories have been enacted for distinct purposes. Total or partial disability benefits are awarded to employees who sustain work-related injuries and, as a result, either are unable to work, or witness a loss in earning power. Specific loss benefits, however, are payable without regard either to the employee's capacity to work or to his earning power, as long as the statutory criteria for these benefits have been satisfied. Killian v. Heintz Div. Kelsey Hayes, 468 Pa. 200, 205, 360 A.2d 620, 623 (1976). Appellee has alleged that he sustained a specific loss of an eye, which is covered by section 306(c)(7), 77 P.S. § 513(7) of the Act:
For all disability resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows:
(7) For the loss of an eye, sixty-six and two-thirds percentum of wages during two hundred seventy-five weeks. ...