17 A.2d 712 | Pa. Super. Ct. | 1940
Argued October 22, 1940. This appeal questions claimant's right to an award for partial disability in addition to compensation for a specific loss under § 306 (c) of the Workmen's Compensation Act, 77 PS 513.
Claimant was injured on November 17, 1937 when his right hand was caught between two steel rollers. He suffered injuries to the hand resulting in an amputation of the tip of the third finger. Under an open agreement, compensation was paid in full for the loss of the distal phalange of that finger but for no other disability. On February 1, 1938 claimant petitioned for a review of the compensation agreement alleging that he had suffered additional loss. The referee after hearing, found (with other facts not material here): "2. That the claimant has some disability beyond the amputation of the distal phalange as aforesaid, the extent of which was not proven at the time of the hearing in this case." This conclusion must be construed as a finding of fact. Cartin v. Standard Tin Plate Co.,
The above finding of fact is open to the valid criticism that it is not specific. In a case of this nature a conclusion of partial disability in addition to a specific loss of a member, should be supported by specific findings of "a destruction, derangement or deficiency in . . . . . . other parts of the body": Lente v. Luci,
The difficulty with appellant's present position is that no appeal was taken from the order of May 3, 1938 and therefore it is now too late to say that the order is of no force because not supported by specific findings of fact. To raise that question, it was incumbent on defendant to take an appeal or to petition for a rehearing within the statutory period. Zerby v. ReadingCo.,
Following the injury on November 17, 1937 claimant returned to his employment with defendant without loss of pay and that may have been the reason for the order of May 3, 1938. It is possible that the order was founded upon the assumption (which does not necessarily follow, Weinstock v. United Cigar Stores,
The reduction in wages though not conclusive (Strickland v.Baugh Sons Co.,
There is no formula that can be applied to determine the amount of the loss of earning power with exactness. It is always a question involving the exercise of sound judgment and common sense. "It is difficult for a fact finding body to measure with precision loss of earning *463
power and it is equally hard for an appellate court to determine whether the evidence produced will sustain the conclusion reached by the referee or board": Marmon v. Union Collieries Co.,
Judgment affirmed.