185 Pa. Super. 540 | Pa. Super. Ct. | 1958
Opinion by
This is a workmen’s compensation case in which the question is whether the board’s finding that the claimant suffered the permanent loss of the use of his leg should be sustained.
The claimant, Frank J. Curran, broke his leg (fractured the right tibia and fibula) in the course of his employment with the defendant on January 30, 1952. He received workmen’s compensation for total disability under an open agreement until October 21, 1953, when the defendant petitioned to modify the agreement alleging that Curran was no longer totally disabled. The referee, after hearing testimony, found as a fact that the claimant was still totally disabled, and dismissed the petition to modify. Upon appeal by the defendant, the Workmen’s Compensation Board affirmed the findings of the referee, and on September 7, 1955, dismissed the appeal.
On October 24, 1955, the defendant filed another petition to modify, this time alleging that the claimant’s injury had finally resulted in the loss of the use of his right leg. The referee found as a fact that “the claimant now suffers industrial loss of use of his right leg as a result of the accident.” Upon appeal by the claimant to the board, it amended the above finding of the referee by deleting “industrial”, and concluded that the claimant should be awarded compensation for the loss of use of his right leg. As this award limited the claimant’s compensation to 215 weeks from February 7, 1952, instead of the longer period for which he might have received compensation for total or partial disability, he appealed the order to the Court of Common Pleas No. 2 of Philadelphia. That court first sustained the appeal and reversed the order of the board, and then amended its order and remitted the record to the board. The defendant appealed to this Court.
The relevant parts of paragraph (c) are: “For all disability resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows: . . . For the loss of a leg, sixty-six and two-thirds per centum of wages during two hundred and fifteen weeks . . .
“. . . Permanent loss of the use of a hand, arm, foot, leg, eye, finger, or thumb, great toe, or other toe, shall be considered as the equivalent of the loss of such hand, arm, foot, leg, eye finger, or thumb, great toe or other toe.”
Paragraph (a) of section 306 (77 PS §511) relates to total disability, and paragraph (b) relates to partial disability (77 PS §512) while paragraph (c), supra, relates to the compensation for permanent injuries to certain specified parts of the body. The capacity to work is involved in the compensation payable under paragraphs (a) and (b), but not in the compensation payable under paragraph (c) ; in it the right to compensation is measured by the extent of the injury. The legislature fixed the amount to be paid for the injuries described in paragraph (c) without considering, but including, all incapacity to labor that may be connected therewith, whether such incapacity be total, partial or no incapacity at all. The compensation allowed in paragraph (c) is restricted by precise language, regardless of the fact that a permanent injury might otherwise affect capacity to work. Lente v. Luci, 275 Pa. 217, 220, 119 A. 132 (1922); Camizzi v. E. T. Fraim Lock Co., 151 Pa. Superior Ct. 3, 8, 10, 29 A. 2d 425 (1942).
Tbe answer to this contention is that tbe questions raised in tbe two petitions are not only different questions, but also depends upon different determinations. Loss of wages and capacity to work are involved in tbe question raised in tbe first petition, but they are not involved in the question raised in tbe second petition. It is possible for one to be totally disabled by a leg injury, and still not have suffered tbe permanent loss of use of the leg. It is also possible to have suffered tbe permanent loss of use of tbe leg and not be totally disabled. What was litigated on tbe first petition was tbe extent of tbe disability. Tbe defendant, and tbe claimant if it should happen to be to bis advantage, are entitled to have determined whether or not tbe claimant has lost the permanent use of his leg. This question bad never been considered by tbe referee or the board until, they acted upon tbe second petition.
The burden is upon the defendant to support the allegations of its petition to modify. He must establish by a fair preponderance of the evidence that the claimant has suffered the permanent loss of the use of his leg. Monarko v. Culmerville Coal Co., 159 Pa. Superior Ct. 126, 47 A. 2d 295 (1946); Snyder v. Hoffman, 159 Pa. Superior Ct. 392, 48 A. 2d 78 (1946).
The question for us, as it was for the court below, is, therefore, not what we would find from the evidence if sitting as a fact finding tribunal, but whether the finding of the permanent loss of the use of the leg is supported by competent evidence. Savolaine v. Matthew Leivo & Sons, supra, and McClemens v. Penn Auto Parts, supra. As the board found for the defendant we must view the evidence in the light most favorable to the defendant and give it the benefit of all inferences reasonably deducible therefrom. Rice v. Public Meat Market, 166 Pa. Superior Ct. 328, 329, 70 A. 2d 443 (1950).
Before considering this, it is advisable to examine the test to be applied in determining the “permanent loss of the use” of an injured member of claimant’s body. The legislature and courts have vacillated concerning this test. It has been said that the test to be applied is whether the injured member “has become useless in any employment for which (the claimant) is mentally and physically qualified.” Rice v. Public Meat Market, supra; Morrow v. James S. Murray & Sons, 136 Pa. Superior Ct. 277, 282, 7 A. 2d 109 (1939); Corniak v. Cohen, 150 Pa. Superior Ct. 140, 146, 27 A. 2d 560 (1942); Zellner v. Haddock Mining Company, 139 Pa. Superior Ct. 16, 10 A. 2d 918 (1940).
Apparently following the Chovic case, supra, the courts applied “the industrial use” interpretation to some cases occurring both before and after the period when the legislature directed it to be applied.
The correct test to determine whether a claimant is entitled to compensation under section 306(c) is whether the claimant has suffered the permanent loss of use of the injured member for all practical intents and purposes. Diaz v. Jones & Laughlin Steel Corp., 155 Pa. Superior Ct. 177, 182, 38 A. 2d 387 (1944); Wildman v. Pa. Dept. of Highways, 157 Pa. Superior
The cases holding that the loss of use means that the injured member has become useless in any employment for which the claimant is mentally and physically qualified have been overruled by Stachowski v. Incorporated Real Estate Investors, supra.
The test to be applied is whether the claimant has suffered “the permanent loss of use of the injured member for all practical intents and purposes.” This is not the same test as the “industrial use” test although the two would often bring the same result if applied in particular cases. Generally the “all practical intents and purpose” test requires a more crippling injury than the “industrial use” test in order to bring the case under section 306(c) supra. 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. For example, in Criner v. McKee Glass Co., supra, 162 Pa. Superior Ct. 627, 60 A. 2d 595 (1948), it was held that the claimant was entitled to compensation for the permanent loss of the use of his left eye, even though it appeared that were he to lose the use of his right eye he would have vision in his damaged left eye. See also Stachowski v. Incorporated Real Estate Investors, supra, 174 Pa. Superior Ct. 152,
The evidence here establishes an injury very simi-156, 100 A. 2d 140 (1953), and Thatcher v. Weinstein, 154 Pa. Superior Ct. 368, 35 A. 2d 549 (1944). lar to that of the claimant in Thatcher v. Weinstein, supra, where it was held that there was a loss of use
The claimant here is 62 years old. Iiis injury was confined to the leg. He testified that since he suffered the fracture, he has not been able to move around without the assistance of a cane because his leg “would creak”; the “leg goes one way and the knee the other . . .” “[creating] a state of unbalance all the time”. He suffered pain, even when in bed. He could not sit for any appreciable length of time without getting up to flex his muscles and exercise. Dr. Wieder testified the claimant had some use of the leg. Dr. Tomasco said he had no usefulness, except that he was able to stand on it, and that the use of it was lost even with a brace.
Dr. Harold Lefkoe, testifying for the claimant, admitted that “if this man had his leg amputated and was properly fitted and could use an artificial appliance, he’d be much better off than he is today”.
In the eye cases cited above, it was determined that the employees had lost the use of the injured eyes even though the claimants were better off with their injured eyes than without them. In the case before us there is testimony that the claimant would be better off without the leg than with it. This is evidence from which the board could find that the claimant permanently lost the use of his leg for all practical intents and purposes.
There is evidence from which the board might have found that the claimant did not lose the use of his leg for all practical intents and purposes. There was evi
We must consider only whether there is sufficient credible evidence to ¡support tbe finding of tbe board. If the board believed tbe testimony that tbe claimant would have been better off with tbe leg amputated, it could properly find that he bad lost the use of the leg for all practical intents and purposes. There was sufficient credible evidence to support tbe board’s finding-
The order of the court below is reversed, and the order of the Workmen’s Compensation Board reinstated.
Although it has no bearing on our determination of this case, it is a matter of interest that this unfortunate claimant fell and again broke his right leg, and that it was amputated on August 28, 1957.