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ACME MARKETS v. WORKMEN'S COMPENSATION APPEAL BOARD (HOPIAK) (07/19/89)

decided: July 19, 1989.

ACME MARKETS, INC., PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HOPIAK), RESPONDENTS



PETITION FOR REVIEW (WORKMEN'S COMPENSATION)

COUNSEL

Matthew D. Dempsey, Lenahan & Dempsey, P.C., Scranton, for petitioner.

Donald T. Rogers, Lowery, Ciavarella & Rogers, Wilkes-Barre, for respondents.

Crumlish, Jr., President Judge, Colins, J., and Narick, Senior Judge. Crumlish, Jr., President Judge, dissents.

Author: Narick

[ 127 Pa. Commw. Page 555]

Acme Markets, Inc. (Employer) appeals a decision by Referee Arthur Piccone granting specific loss benefits to Walter Hopiak (Claimant), which was affirmed by the Workmen's Compensation Appeal Board (Board).

The Claimant was injured June 8, 1981, when he fell off the back of a truck while in the course of his employment. He sustained injury to his right thumb and was driven to the hospital by his Employer for emergency room treatment. On June 12, 1981, an Employer's Report of Occupational Injury was filed listing Claimant's injury to his right thumb.

On December 8, 1981, Claimant was again injured in a truck accident while in the course of his employment. He sustained further damage to his thumb, as well as multiple cuts and lacerations to his body, one of which created a visible scar on his face. A Notice of Compensation Payable dated December 23, 1981 provided Claimant with disability benefits for the lacerations and contusions to the total body. The Employer filed a Termination Petition, and Referee Mark Peleak found that Claimant had finally recovered from the effects of these injuries on March 24, 1982. Thus, these disability benefits were halted.

In June 1983, Claimant again suffered a disabling injury while on the job for which he received total disability benefits commencing September 4, 1983, and lasting until

[ 127 Pa. Commw. Page 556]

    his death.*fn1 This injury caused aggravation of an underlying cancer condition and was totally unrelated to the previous injuries.

On or about January 26, 1984, Claimant filed a Claim Petition for benefits alleging specific losses of the use of his right thumb in the June accident and disfigurement from permanent scarring resulting from the December accident. After multiple hearings, his petition was granted by Referee Piccone and affirmed by the Board. His award consisted of specific loss payments for his thumb from June 8, 1981 and for his scar from March 24, 1982.*fn2

Employer raises three issues in this appeal. The first is that the Board erred in determining that the Claimant met his burden of proof in establishing permanent loss of use of his thumb. The second argument alleges that notice of the specific loss of use of the thumb was not established until Claimant filed his claim petition in 1984, and thus the awarding of interest back to the date of the injury is an error of law. Finally, Employer argues that the Board erred in awarding compensation benefits for specific loss to run concurrently with other benefits being paid by the same Employer. In addressing each of these issues we note that our scope of review is limited to a determination of whether constitutional rights have been violated, an error of law committed, or whether necessary findings of fact are supported by substantial competent evidence. Crown, Cork & Seal Corp. v. Workmen's Compensation Appeal Board (Savini), 117 Pa. Commonwealth Ct. 242, 543 A.2d 603 (1988).

The issue of loss of use of an extremity is a question of fact to be resolved by the referee. Dally v. Workmen's Compensation ...


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