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CRUCIBLE v. WORKMEN'S COMPENSATION APPEAL BOARD (POPE) (10/24/88)

decided: October 24, 1988.

CRUCIBLE, INC., SELF-INSURED, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (POPE), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Terri A. Pope v. Crucible Steel Company, No. A-90016.

COUNSEL

Joseph A. Fricker, Jr., for petitioner.

Richard J. Schubert, with him, Richard G. Spagnolli, for respondent, Terri A. Pope.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. This decision was reached prior to the resignation of Judge MacPhail.

Author: Narick

[ 120 Pa. Commw. Page 565]

Crucible, Inc. (Employer) has petitioned for review of an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's grant of benefits to Terri A. Pope (Claimant).

Claimant was originally injured at work on January 9, 1980 when a forklift ran over her left foot. She received compensation from her Employer from that date until July 30, 1980, when the parties entered into a

[ 120 Pa. Commw. Page 566]

    supplemental agreement suspending benefits. On April 20, 1981, the parties concluded a second supplemental agreement, which provided: "all injury sustained on 1/9/80 has resolved itself into the loss of one-half of the left great toe pursuant to Section 306(c) [of The Pennsylvania Workmen's Compensation Act (Act)]."*fn1 That agreement further provided that the suspension of benefits under the previous supplemental agreement*fn2 would remain in full force and effect.

On July 24, 1981, Claimant filed the petition for reinstatement of benefits which is the subject of these proceedings. The Employer defended on the grounds that Claimant had been fully compensated for her injuries when she received the payments for the specific loss of use of her left great toe, and that the injury for which she sought compensation -- pain, swelling and discoloration in her left foot -- was not a separate and distinct compensable injury.

Following hearings and the submission of medical evidence, a workmen's compensation referee determined that Claimant was entitled to disability benefits*fn3 from August 26, 1981 until her recovery on December 10, 1982. On appeal, the Board remanded for the referee to make findings as to whether Claimant's disability was the result of a separate and distinct injury which was a normal and direct result of the injury to her great toe. In response to the remand order and without taking additional evidence, the referee added the following finding: "[C]laimant has a disability that extends into the foot beyond 50% of the left great toe." The Board found this finding insufficient on appeal and reversed

[ 120 Pa. Commw. Page 567]

    the referee's grant of benefits. Claimant petitioned for reconsideration of that order, however, and on October 17, 1986, the Board issued an order reversing its prior decision and reinstating the referee's award, prompting Employer's appeal to this Court.

The two issues we are asked to consider are whether Claimant was entitled to reinstatement of workers' compensation benefits without a specific finding by the referee that her disability was separate and distinct from the disability attributable to her left great toe and whether Claimant met her burden of proving that her disability was due to an injury separate and distinct from the specific loss of use of one-half of her left great toe.

It is a well established rule in cases involving specific loss claims that a claimant who sustains an injury compensable under Section 306(c) of the Act is not entitled to compensation beyond that specified in that section even though he may be totally disabled by the injury. See, e.g., Truck Lubricating & Washing Co. v. Workmen's Compensation Appeal Board, 54 Pa. Commonwealth Ct. 495, 421 A.2d 1251 (1980); Carnovale v. Supreme Clothes, Inc., 7 Pa. Commonwealth Ct. 253, 298 A.2d 640 (1973). The exception to this general rule is that a claimant is entitled to disability benefits for injuries ...


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