80 Pa. Commw. 258 | Pa. Commw. Ct. | 1984
Opinion by
Joel Negron ('Claimant) .suffered a loss of three fingers in an industrial accident which occurred while he was cleaning a punch press at his -employer’s place of business. At the time of the accident, Claimant was 16 years of age.
The referee awarded Claimant workmen’s 'Compensation benefits for the loss of three fingers, 'directed that the employer .should pay a 50% penalty because employer had violated the provisions of 'Section 5 of the Child Labor Law, Act of May 13, 1915, P.L. 286, as amended, 43 P..S. §44, and also awarded Claimant counsel fees in .the amount of 20% of .the recovery.
Both Claimant and the employer 'appealed to the Workmen’s Compensation Appeal Board (Board). Claimant contended that the referee erred when he did not award Claimant workmen’s compensation benefits for the loss .of use of his entire left hand. The employer argued that the referee erred in imposing the 50% penalty and awarding counsel fees. The Board reversed the referee with respect to the penalty and counsel fees .and affirmed the .referee’s award .of compensation for the loss of ¡his three fingers.
Claimant appeals to this Court from the Board’s decision.
Penalty and Counsel Fees
It is provided in Section 320(a) of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §672(a) that where a minor under the age of 18 is employed in violation of any provision of the laws of the Commonwealth relating to minors of such age, such minor
By regulation published at 34 Pa. Code §11.49, the Industrial Board prohibited the employment of minors under 18 years, with certain exceptions not applicable here, on punch presses.
In the record of his case, it appears that Claimant was hired as a helper in the crating area of employer’s plant. On February 14, 1979, there was no work in the crating area. The employer’s representative testified as follows:
Well, he was at the crating. And .there was no work there so I took him out of crating, gave Dim to Tony, the foreman, in the Metal Shop, and put him as a helper on the punch press operator, holding the metal only at the opposite end. I seen him do that. Naturally, I follow-up on these things.
In cross-examination, the same witness testified as follows:
Q. ... On the day we are talking about, did you have Joel Negron put on the punch machine ■ to assist?
A. Tes, I did.
The witness went on to explain that the duty of the helper was to hold a thin sheet of metal while the operator punched holes in it. Claimant testified that his accident occurred when he was attempting to clean out the machine. Claimant testified he and the press operator took turns cleaning out the machine while
The referee found that:
At the time of the injury the Claimant was 16 years of age and was able [sic]!1 ] to work around dangerous machinery. He was hired as a helper but was instructed to work on the machine on which he was injured and which is a dangerous piece of machinery.
The employer argued to the Board and argues here that it did not instruct Claimant to work at the machine and, in fact, had at all times told Claimant not to work around the machines. The Board held that there was “ample evidence” that employer did not authorize, condone or tell Claimant to use the punch machine. The Board also wrote:
If the referee found as a fact that the defendant employer told the claimant to work on the machinery and the claimant was injured while so doing, then there could very well be a proper fifty percent (50%) penalty assessment against the defendant because the claimant was underage.
As we have noted above, that is exactly what the referee did find and we believe there is substantial evidence in the record to support that finding.
It is simply not enough for an employer to place an underage employee within 3, 4 or 6 feet of a dangerous machine and tell him to stay there while he helps the operator of the machine. Because the risk of injury around dangerous machinery is so great where underage employees are involved is precisely the reason the Child Labor Law was enacted.
The Board also concluded that since the Child Labor Law was involved, that was reason enough to provide the employer with a reasonable basis to contest the claim and, therefore, counsel fees should be denied. To the contrary, we believe where an employer knowingly places an underage employee in a place of danger, there can be no reasonable basis for a contest and the referee’s award of counsel fees should be reinstated.
Extent of Claimant’s Disability
Claimant’s claim petition described the nature of his injury as the total loss of his second, third and fourth fingers of his left hand. . The referee found that:
Claimant suffered complete loss of the second, third and fourth fing-ers of the left hand. He has lost them for all intents and purposes and is not able to use them for the ordinary things which the fingers were intended.
As we have noted, Claimant argues that he should have been awarded workmen’s compensation benefits for the loss of use of his left hand, not just the fingers.
Since strictness of pleading is not required in workmen’s compensation cases, Schneider v. Sears, Roebuck & Co., 206 Pa. Superior Ct. 282, 213 A.2d 83 (1965), we do not believe, nor has it been argued to us that the fact that Claimant’s claim petition refers to,the loss of his fingers only, bars him from recovery for loss of use of his hand, if there is evidence to support the loss of usé of the hand.
It is well settled that the test to be applied in loss of use eases is whether the claimant has suffered the permanent loss of use of the injured member for all
In the instant case, the Claimant and his treating surgeon testified regarding the extent of his injury. There is no dispute that Claimant has no use at all of his second, third and fourth fingers. All that remains of his left hand is his thumb and index finger. Claimant testified that he could not pick up heavy objects such as a carton of milk because his index finger hurts when he attempts to do so. The referee stated at the conclusion of Claimant’s testimony that, “There is no medical question. As I :see what he testified to —he lost these fingers, three fingers, it is obvious. ’ ’
Dr. Penrod, Claimant’s surgeon, was the only other witness who testified concerning the extent of Claimant’s injury. That witness was asked, over objection, whether the left hand would have any industrial use for any type of employment for which the Claimant might be qualified. The doctor answered in the negative. • The physician then was asked:
Q. For all practical purposes, does the hand have any use — ?
A. Well, as I said, for practical purposes, concerning the factors that you enumerated that I’m quite familiar with about Joel, I would have to say that the hand is not useful. (Emphasis added.)
The physician testified also that Claimant, by reason of his injury, suffered a 19% permanent partial disability of the whole hand.
It must be observed also, that the Board never discussed Claimant’s cross-appeal.
Order
That part of the order of the Workmen’s Compensation Appeal Board entered August 12, 1982 which reversed the referee’s award under Section 320(a) of The Pennsylvania Workmen’s Compensation Act and the award of counsel fees, is reversed.
The case is remanded for further proceedings consistent with the foregoing opinion to determine the extent of the Claimant’s loss of use.
Jurisdiction relinquished.
We are quite certain that the referee intended the word “able” to be “unable”.
The Board’s opinion begins with the Mowing language: “The defendant has appealed a decision of the referee awarding compensation .to the claimant. ...” (Emphasis added.)
