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

COMMONWEALTH COURT OF PENNSYLVANIA


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. § 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 states as follows:

[ 121 Pa. Commw. Page 496]

Although the claimant has clearly sustained his burden of establishing that he has sustained a Page 496} loss of use of both his right and left legs for all practical intents and purposes, no evidence has been presented to establish that all disability associated with the claimant's work injury has resolved itself into a loss of use of his right leg and left leg. (Emphasis added.)

Employer contends that the referee erred in finding no evidence to establish that all disability had resolved into specific loss after finding that Claimant suffered a loss of use for all practical intents and purposes. Employer also contends that this finding is unsupported by substantial evidence. It is Employer's position that medical testimony accepted by the referee clearly establishes the date of Claimant's specific loss injury as January 24, 1980, the date of his work-related incident, and that Claimant's sole injury was to both legs.*fn3 Employer thus argues that since the evidence establishes that Claimant lost the use of his legs for all practical intents and purposes when injured on January 24, 1980, Employer is entitled to a credit for all payments previously made to Claimant for total disability in excess of the amount Claimant is authorized to receive for specific loss.*fn4

[ 121 Pa. Commw. Page 497]

Claimant contends, on the other hand, that the only medical testimony, which was presented by Claimant's treating physician, supports the referee's findings. Claimant asserts that Dr. Hisrich never testified that Claimant's sole injury was to his legs; that testimony as to whether or not Claimant's injury extended beyond the specific loss was never elicited from Dr. Hisrich by Employer; and that the burden of proving that Claimant's disability did not extend beyond the specific loss fell upon Employer.*fn5 Claimant therefore argues that Employer is not entitled to credit.

This Court is precluded from effectively reviewing the matter sub judice in light of the ambiguity which permeates the referee's decision. The referee, on one

[ 121 Pa. Commw. Page 498]

    hand, found that Claimant lost the use of his legs for all practical intents and purposes, but found as well that no evidence was presented to establish that all disability as a result of Claimant's work injury resolved into the loss of use of his legs. Findings of Fact Nos. 5, 6. Thereafter, based upon his finding of the absence of evidence to establish that all disability resolved into a specific loss, the referee determined that Claimant must be paid for total disability in accordance with the Notice of Compensation Payable. Conclusions of Law No. 2. These findings and conclusions could suggest that the referee determined that Claimant suffers from a specific loss injury as well as another distinct injury which results in total disability since Employer failed to establish that Claimant's total disability had resolved exclusively into specific loss of use of both legs. Ordinarily, a claimant whose injury is compensable as a specific loss is not entitled to additional compensation even if totally disabled by his/her permanent injury unless an injury to another part of the body is found to be the direct result of the claimant's permanent injury and causes a disability separate and distinct from that which normally follows the specific loss injury. Painter v. Workmen's Compensation Appeal Board (Universal Cyclops), 91 Pa. Commonwealth Ct. 59, 496 A.2d 907 (1985).*fn6 However, simply because the referee found no evidence that Claimant's disability was restricted to his legs does not mean that the referee found other disabling injuries.

Furthermore, the referee also directed suspension of specific loss payments until such time as Claimant's total disability payments end or until Claimant elects to be paid specific loss benefits as opposed to total disability

[ 121 Pa. Commw. Page 499]

    benefits. Conclusions of Law No. 2. This direction by the referee negates any finding that Claimant is entitled to total disability benefits in addition to specific loss benefits under the exception to the general rule above noted. If the matter sub judice is a case fitting within the exception, then Employer would not be entitled to credit for previous payments, thereby supporting the referee's silence as to the issue of credit. See Painter. Should this matter more appropriately fall within the general rule, however, the referee's findings are inadequate with respect to the issue of whether Employer is entitled to credit. See Elliott v. Workmen's Compensation Appeal Board (Daily Industries, Inc.), 77 Pa. Commonwealth Ct. 646, 466 A.2d 789 (1983).

The referee did not grant Claimant total disability benefits in addition to specific loss benefits. Therefore, his findings and conclusions may entitle Employer to a credit for all payments previously made to Claimant for total disability against the amount Claimant is authorized to receive for specific loss should Claimant at some future date elect to receive specific loss payments. This is so particularly in light of Dr. Hisrich's deposition testimony that the loss of use of Claimant's legs occurred on January 24, 1980, the date of Claimant's work-related incident;*fn7 the referee's silence as to the date of Claimant's specific loss as well as to any injuries Claimant may suffer which cause disability separate and distinct from that normally following Claimant's specific loss injury; and the possible confusion over which party bore the burden of proving that all disability had resolved into a specific loss.

[ 121 Pa. Commw. Page 500]

This Court will not entertain inferences that the referee made a finding that was not expressed in his determination. Colt Industries v. Workmen's Compensation Page 500} Appeal Board, 49 Pa. Commonwealth Ct. 26, 410 A.2d 108 (1980). As resolution of the issue raised here depends upon the interpretation to be rendered to the referee's ambiguous decision, this matter must be vacated and remanded for clarification of the issues referred to above pursuant to Section 706 of the Judicial Code, 42 Pa. C.S. § 706. See also Newton v. Workmen's Compensation Appeal Board (Department of Labor and Industry), 82 Pa. Commonwealth Ct. 534, 475 A.2d 1353 (1984).

Order

And Now, this 6th day of December, 1988, the order of the Workmen's Compensation Appeal Board is vacated and this matter is remanded for purposes consistent with this opinion.

Jurisdiction is relinquished.

Judge MacPhail did not participate in the decision in this case.

Disposition

Vacated and remanded.


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