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08/27/97 COMMONWEALTH PENNSYLVANIA v. WORKMEN'S

August 27, 1997

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, BUREAU OF WORKERS' COMPENSATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SNYDER), RESPONDENT; RANDY SNYDER, PETITIONER V. WORKERS' COMPENSATION APPEAL BOARD (DEPARTMENT OF LABOR AND INDUSTRY, BUREAU OF WORKERS' COMPENSATION, AS CONSERVATOR OF THE SUBSEQUENT INJURY FUND), RESPONDENT



Appealed From No. A96-0546. State Agency Workers' Compensation Appeal Board.

Before: Honorable Joseph T. Doyle, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Judge Doyle. Judge Leadbetter Dissents.

The opinion of the court was delivered by: Doyle

OPINION BY JUDGE DOYLE

FILED: August 27, 1997

This case involves cross appeals regarding benefits from the Subsequent Injury Fund (Fund) under the provisions of Section 306.1 of the Workers' Compensation Act (Act). *fn1

The facts are as follows. On January 12, 1990, Randy Snyder (Claimant), while in the course of his employment as an interstate truck driver for Birk Transfer, Inc., was struck in the right eye by a metal hook on a rubber tarp strap which snapped as he was attempting to tie a load of freight. At the time of this accident, Claimant was already legally blind in his left eye due to a childhood injury. His visual acuity in his left eye was 20/400. As a result of the accident, the lens of Claimant's right eye had to be surgically removed. However, with the aid of a removable contact lens, Claimant is capable of nearly 20/20 vision in his right eye.

Pursuant to a Supplemental Agreement dated March 3, 1992, Claimant and Birk Transfer, Inc. agreed that Claimant's injury had, as of January 12, 1991, "resolved itself into a specific loss of use of the right eye." (Supplemental Agreement at 1; Reproduced Record (R.R.) at 5a.) As such, Claimant received a benefit rate under Section 306(c)(7), 77 P.S. § 513(7), of $302.50 per week for a period of 275 weeks. *fn2 On March 18, 1992, the Workers' Compensation Appeal Board (Board) issued an order commuting the specific loss benefits to a lump sum payment of $62,157.20.

Thereafter, on August 1, 1992, Claimant returned to work as an interstate truck driver and earned an average weekly wage of $690.00. However, by July 1, 1993, Claimant had to end this employment because he was unable to continue tolerating the extended wear of the contact lens in his right eye. Since January 1, 1994, Claimant has been employed as a local truck driver and earns only $280.00 per week, representing forty hours of work at a rate of $7.00 per hour.

On May 11, 1995, Claimant filed an amended claim petition *fn3 naming as a defendant the Department of Labor and Industry, Bureau of Workers' Compensation (Bureau), for additional benefits *fn4 from the Subsequent Injury Fund (Fund) pursuant to Section 306.1 of the Act, which provides in pertinent part:

If an employe, who has incurred (through injury or otherwise) permanent partial disability, through the loss, or loss of use of, one hand, one arm, one foot, one leg or one eye, incurs total disability through a subsequent injury, causing loss of use of, another hand, arm, foot, leg or eye, he shall be entitled to additional compensation as follows:

After the cessation of payments [for the specific loss] by the employer for the period of weeks prescribed in clause (c) of section 306, for the subsequent injury, additional compensation shall be paid during the continuance of total disability, at the weekly compensation rate applicable for total disability.

77 P.S. § 516 (emphasis added).

It is undisputed that Section 306.1 provides compensation for a bilateral (second) loss even though the first loss was not work-related. *fn5 Employees who have suffered two work-related losses are compensated under Section 306(c)(23) of the Act, which provides:

Unless the board shall otherwise determine, the loss of both hands or both arms or both feet or both legs or both eyes shall constitute total disability, to be compensated according to the ...


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