18 Pa. Commw. 35 | Pa. Commw. Ct. | 1975
Opinion by
In this action the United States Steel Corporation (employer) appeals from the decision of the Workmen’s Compensation Appeal Board (Board) which affirmed with modifications the referee’s grant of benefits to Thomas P. Elkins (claimant) for the loss of his left foot.
On October 22, 1968 the claimant suffered the amputation of all five toes and portions of the metatarsal bones of his left foot while in the course of his employment at one of the employer’s plants. On December 6, 1968, pursuant to the Pennsylvania Workmen’s Compensation Act
Our scope of review, in a case such as this where the Board takes no additional evidence, is limited to a determination of whether errors of law were committed and whether the findings of the referee are supported by substantial evidence. Here, the employer asserts that the record cannot support the referee’s finding with respect to the loss of the claimant’s foot and that the wrong test was used in arriving at that determination. Section 306(c) of The Workmen’s Compensation Act, 77 P.S. §513 specifies amputation at the ankle as the equivalent of the loss of a foot. Fortunately for him, the claimant did not lose so substantial a portion of his foot as to fall within that specification. The recovery of benefits by this claimant, therefore, must necessarily be based upon the permanent loss of the use of his foot as the equivalent of the loss of the foot. Section 306(c), The Workmen’s Compensation Act, 77 P.S. §513.
Although our review of the record leads us to believe that substantial evidence is present to support the referee’s finding that the claimant did lose the industrial use of his foot, this is not the proper test to determine whether or not the claimant is entitled to benefits for the loss of the use of his foot.
Throughout the long legislative history of the much amended Workmen’s Compensation Act numerous tests have been applied to determine whether or not a claim
“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 purposes’ test requires a more crippling injury than the ‘industrial use’ test in order to bring the case under Section 306(c) supra.” Curran v. Knipe & Sons, Inc., 185 Pa. Superior Ct. at 547, 138 A.2d at 255. Obviously, therefore, the referee and the Board have awarded benefits here upon findings requiring a less stringent burden of proof than was necessary for such an award. Inasmuch as we may not review the testimony to substitute our own findings or to determine whether or not the claimant has met the more stringent burden, we must remand the case to the Board for the appropriate determination.
Accordingly, we enter the following
Order
And Now, this 18th day of March, 1975, the appeal by the United States Steel Corporation from the decision of the Workmen’s Compensation Appeal Board dated January 24, 1974 is hereby sustained and the record is remanded to the Board for findings consistent with this opinion.
. The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 786, as amended, 77 P.S. §1 et seq.
. Section 806(c) of The Pennsylvania Workmen’s Compensation Act, 77 P.S. §518.