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READING ANTHRACITE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (EARLEY) (10/26/88)

decided: October 26, 1988.

READING ANTHRACITE COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (EARLEY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Edward Earley v. Reading Anthracite Company, No. A-90485.

COUNSEL

James E. Pocius, Lenahan & Dempsey, P.C., for petitioner.

Stephen P. Ellwood, for respondent, Edward Earley.

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

Author: Smith

[ 120 Pa. Commw. Page 578]

Reading Anthracite Company (Employer) appeals from a decision of the Workmen's Compensation Appeal Board (Board) which reversed the referee's decision granting a modification petition filed by Employer. Issues presented for review are whether the Board erred in denying Employer's modification petition for want of substantial evidence to support a finding of specific loss, and alternatively, whether Claimant, Edward Earley, waived his right to raise on appeal any deficiency in Employer's medical testimony as to the permanency of Claimant's injury.

On November 4, 1983, Employer filed a modification petition pursuant to Section 413 of The Pennsylvania Workmen's Compensation Act*fn1 (Act) alleging that Claimant's injury to his right knee has resulted in the specific loss of use of his right leg, and that Claimant's compensation should be modified as of August 23, 1983.*fn2 Employer further alleged that payment should cease after expiration of the mandated specific loss period

[ 120 Pa. Commw. Page 579]

    of 435 weeks. See Section 306(6), (25) of the Act, 77 P.S. § 513(6), (25).*fn3

At hearing, Employer presented the deposition testimony of Dr. Raymond P. van den Hoven, a specialist in physical medicine and rehabilitation.*fn4 Based upon Dr. van den Hoven's testimony, the referee found that Claimant lost the use of his right leg for all practical intents and purposes as of August 23, 1983, the date Dr. van den Hoven examined Claimant; and that Claimant suffered from no disability other than the loss of his right leg as a result of his October 6, 1975 work-related injury. Findings of Fact No. 7; Conclusions of Law Nos. 2, 3.

Claimant appealed to the Board which reversed the referee and determined that Dr. van den Hoven's testimony was not sufficient to meet Employer's burden of proving that the loss of use of Claimant's right leg is permanent. Hence, this appeal.

This Court's scope of review is limited to ascertaining whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. Moreover, where, as here, the employer alleges that a claimant's injury is no longer compensable as a total disability, but is instead exclusively compensable as a specific loss, the employer must show that the claimant now suffers only the specific loss and that the injury does not extend beyond that loss. Martin Trucking Company v. Workmen's Compensation Appeal Board,

[ 120 Pa. Commw. Page 58055]

Pa. Commonwealth Ct. 174, 422 A.2d 1225 (1980); Workmen's Compensation Appeal Board v. Brockway Glass Company, 21 Pa. Commonwealth Ct. 444, 346 A.2d 916 (1975). This Court must therefore determine, in light of the entire record, whether the Board erred in finding that Employer failed to sufficiently establish that the loss of use of Claimant's right leg is permanent.

Eligibility under Section 306 of the Act depends upon whether Claimant has suffered the permanent loss of use of the injured member for all practical intents and purposes. " However it is not necessary that the injured member of the claimant be of absolutely no use in order for him to have lost the use of it for all practical intents and purposes." McGraw Edison Power Systems Division v. Workmen's Compensation Appeal Board, 64 Pa. Commonwealth Ct. 111, 114, 439 A.2d 868, 870 (1982) (emphasis in original).

Employer first argues that the Board committed an error of law in holding that the referee's finding of permanent loss of use of Claimant's leg was unsupported by Dr. van den Hoven's testimony in that permanency can be inferred therefrom. Employer alternatively argues that Claimant waived any issue regarding Dr. van den Hoven's testimony as to permanency in not raising it either in his appeal from the ...


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