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JOSEPH M. CARNEY v. WORKMEN'S COMPENSATION APPEAL BOARD (PITTSBURGH PAPER STOCK COMPANY) (08/23/88)

decided: August 23, 1988.

JOSEPH M. CARNEY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PITTSBURGH PAPER STOCK COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Joseph M. Carney v. Pittsburgh Paper Stock Company, No. A-89724.

COUNSEL

John D. Hendricks, Tarasi & Johnson, P.C., for petitioner.

Edward K. Dixon, Zimmer, Kunz, Loughren, Hart, Lazaroff, Trenor, Banyas & Conaway, for respondent, Pittsburgh Paper Stock Company.

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

Author: Barbieri

[ 119 Pa. Commw. Page 144]

Joseph M. Carney (Claimant) petitions for review of the order of the Workmen's Compensation Appeal Board (Board) that reversed a referee's decision granting Claimant's modification petition. We reverse in part and affirm in part.

Claimant was employed by Pittsburgh Paper Stock Company (Employer). On October 24, 1975, Claimant suffered a traumatic amputation of four fingers of his left hand when a paper shredding machine pulled his hand into the machine. Pursuant to a notice of compensation payable issued November 7, 1975, Claimant received benefits in the amount of $74.07 per week based on a compensation rate of ninety percent of his weekly wage of $82.30 because his wages were less than fifty per cent of the Statewide average weekly wage, pursuant to Sections 306(a) and 306(c) of The Pennsylvania Workmen's

[ 119 Pa. Commw. Page 145]

Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. 511 and 513, respectively.

Claimant then instituted a third party action against the manufacturer of the paper shredding machine in federal court. Claimant was able to settle this case for $55,000.00. However, on October 3, 1980, a federal judge struck Employer's subrogation right to the third party settlement funds on the basis that Employer refused to cooperate in permitting Claimant to disassemble the machine to find its identifying manufacturers. Employer planned to appeal this decision.

On February 6, 1981, Claimant and Employer entered into a supplemental agreement. Claimant agreed therein that his injury had resolved itself into a specific loss of the use of his left hand and that pursuant to Section 306(c) of the Act he was entitled to 335 weeks of compensation, plus 20 weeks for a healing period, computed at $74.07 per week. Employer agreed to waive its lien on compensation benefits against the third party settlement in return for the sum of $2,000.00.*fn1 Employer remained liable to pay compensation to the Claimant in the amount of $24,294.85, this amount being 355 weeks of compensation at $74.07 per week, less $2000.00.

On May 25, 1982, Claimant filed this instant petition for modification. Claimant first took the novel position that Employer's responsibility to pay the $24,294.85 for specific loss of the left hand arose not from the date of the injury, but from the ...


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