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JESSOP STEEL CO. v. WORKMEN'S COMPENSATION APPEAL BOARD (MOSIER) (12/06/88)

decided: December 6, 1988.

JESSOP STEEL CO., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (MOSIER), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of William M. Mosier v. Jessop Steel Company, No. A-91708.

COUNSEL

Edward D. Klym, with him, John E. Nedlik, Trushel, Klym & Asti, for petitioner.

Benjamin L. Costello, Yablonski, Costello & Leckie, for respondent, William Mosier.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.

Author: Smith

[ 121 Pa. Commw. Page 494]

Petitioner Jessop Steel Company (Employer) appeals from the order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision awarding compensation to William Mosier (Claimant) for specific loss pursuant to The Pennsylvania Workmen's Compensation Act (Act).*fn1 The sole issue presented for review is whether Employer is entitled to a credit against any specific loss payments made under the instant award for total disability benefits previously paid to Claimant. The Board's decision is vacated and remanded.

Claimant currently receives total disability compensation pursuant to a Notice of Compensation Payable which was issued February 7, 1980 for work-related injuries sustained on January 24, 1980 when his legs were crushed and burned after hot steel slabs in excess of 12,900 pounds collapsed on him at work. Claimant filed the instant Petition for Review of the Notice of Compensation Payable on or about February 17, 1984 alleging that all disability as a result of his January 24, 1980 work-related injury had resolved into a loss of use of his legs, and requesting payments of specific loss benefits as opposed to total disability benefits.

[ 121 Pa. Commw. Page 495]

After hearings held April 3, 1984; November 13, 1984; February 6, 1985; and March 12, 1986, the referee determined that Claimant was entitled to specific loss benefits for a loss of use of both legs for all practical intents and purposes under Section 306(c) of the Act, 77 P.S. ยง 513. The referee further determined that Claimant was entitled to total disability benefits under the February 7, 1980 Notice of Compensation Payable since no evidence was presented to establish that all disability had resolved into a loss of use of both legs. The referee also directed suspension of specific loss payments until Claimant's prior total disability payments expired or upon Claimant's election to receive specific loss benefits as opposed to total disability benefits. Employer appealed to the Board, which affirmed the referee's decision, whereupon Employer petitioned this Court for review.*fn2

Employer does not contest the referee's finding that Claimant lost the use of his legs for all practical intents and purposes. Findings of Fact No. 5 provides:

Upon consideration of lay testimony and all medical evidence of record in this case and based upon sufficient, competent and credible medical evidence of record in this case from Dr. Glenn Hisrich, a Board Certified orthopedic surgeon, your Referee finds as a fact that the claimant has lost the use of both his right and left legs for all practical intents and purposes.

Employer challenges instead the referee's Findings of Fact No. 6 which ...


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