551 A.2d 337 | Pa. Commw. Ct. | 1988
Opinion by
Petitioner Jessop Steel Company (Employer) appeals from the order of the Workmens Compensation Appeal Board (Board) which affirmed the referees decision awarding compensation to William Mosier (Claimant) for specific loss pursuant to The Pennsylvania Workmens Compensation Act (Act).
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.
Employer does not contest the referees 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 referees Findings of Fact No. 6 which states as follows:
Although the claimant has clearly sustained his. burden of establishing that he has sustained a*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 Employers position that medical testimony accepted by the referee clearly establishes the date of Claimants specific loss injury as January 24, 1980, the date of his work-related incident, and that Claimants sole injury was to both legs.
This Court is precluded from effectively reviewing the matter sub judice in light of the ambiguity which permeates the referees decision. The referee, on one
Furthermore, the referee also directed suspension of specific loss payments until such time as Claimants total disability payments end or until Claimant elects to be paid specific loss benefits as opposed to total disabil
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. Hisrichs deposition testimony that the loss of use of Claimants legs occurred on January 24, 1980, the date of Claimants work-related incident
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
Order
And Now, this 6th day of December, 1988, the order of the Workmens Compensation Appeal Board is vacated and this matter is remanded for purposes consistent with this opinion.
Jurisdiction is relinquished.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1031.
This Courts scope of review in workmens compensation cases is to determine whether constitutional rights were violated, an error of law was committed, or necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704.
Employer cites from page five of Dr. Hisrichs deposition testimony to support the assertion that Claimants sole injury was to both legs. However, Dr. Hisrich stated only that the part of Claimants body injured in the work-related incident was his legs. This testimony does not rule out the possibility that Claimant may suffer from other injuries as a direct result of his specific loss injury, causing disability separate and distinct from that which normally follows the specific loss injury.
Employer cites Turner v. Jones & Laughlin Steel Corporation, 479 Pa. 618, 389 A.2d 42 (1978); McGraw Edison/Power Systems Division v. Workmen's Compensation Appeal Board, 64 Pa. Commonwealth Ct. 111, 439 A.2d 868 (1982); and Warren Car Company v. Workmen's Compensation Appeal Board, 41 Pa. Commonwealth Ct. 141, 398 A.2d 753 (1979), appeal dismissed, 491 Pa. 414, 421 A.2d 205 (1980) in support of its entitlement to credit.
Claimant cites Workmen's Compensation Appeal Board (Sampson) v. Brockway Glass Company, 21 Pa. Commonwealth Ct. 444, 346 A.2d 916 (1975) in support of his assertion that the burden of proving that Claimants disability did not extend beyond his specific loss fell upon Employer. Claimants reliance thereon, however, is misguided. The employer in Brockway Glass Company, unlike the matter sub judice, filed the modification petition. It is the party seeking to modify the agreement, Claimant here, who has the burden of proving the allegations upon which he relies. Berkoski v. Workmens Compensation Appeal Board (Atlas Chain and Precision Products Company), 73 Pa. Commonwealth Ct. 644, 459 A.2d 458 (1983); Mancini v. Workmens Compensation Appeal Board, 64 Pa. Commonwealth Ct. 484, 440 A.2d 1275 (1982).
Claimant suggests, in his brief, that the instant matter fells within the exception to the general rule that specific loss benefits are exclusive once an injury is found compensable as a specific loss.
Dr. Hisrichs Deposition, p. 19.