Opinion
Argued November 19, 1980
December 24, 1980.
Workmen's compensation — Petition to modify or terminate — Scope of appellate review — The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736 — Specific loss — Medical evidence — Total disability — Alternative employment.
1. In a workmen's compensation case involving a petition to modify or terminate, the question for the Commonwealth Court of Pennsylvania is whether there was an error of law or whether the referee capriciously disregarded the evidence in denying the employer's petition. [586]
2. While, as a general matter, the specific loss of fingers by amputation is compensable under Section 306(c) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, where competent medical evidence establishes separate and distinct disability extending to other parts of the body resulting from the specific loss, an award of total disability benefits under Section 306(a) may be warranted. [586]
3. Where in a workmen's compensation case the employer fails to introduce evidence of alternative employment, a modification petition must be denied. [587]
Argued November 19, 1980, before Judges MENCER, ROGERS and WILLIAMS, JR., sitting as a panel of three.
Appeal, No. 74 C.D. 1980, from the Order of the Workmen's Compensation Appeal Board in the case of Umberto Goffi v. Robert Sabina Manufacturing Company, No. A-76056.
Petition with the Workmen's Compensation Appeal Board to modify workmen's compensation benefits. Petition denied. Petitioner appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed. Application for reargument filed and denied.
J. Lawson Johnson, with him Eugene F. Scanlon, Jr., Dickie, McCamey Chilcote, for petitioner.
Frank J. Conte, for respondent, Umberto Goffi.
Umberto Goffi (claimant), a sixty-five year old machinist, suffered the amputation of portions of the middle three fingers of his left hand in two punch press accidents during his employment with Robert Sabina Manufacturing Company (Sabina). Goffi and Sabina entered into a workmen's compensation agreement which provided benefits for total disability. More than a year later Sabina filed a petition to modify or terminate the agreement arguing that Goffi's injuries had resolved themselves into a specific loss within the exclusive compensatory purview of Section 306(c) of the Workmen's Compensation Act, under which Goffi's period of eligibility for benefits was exhausted. In the alternative Sabina contended that Goffi's disability was no longer total and that his benefits should be correspondingly reduced. After a series of hearings Sabina's arguments were rejected by a referee. The Workmen's Compensation Appeal Board (Board) remanded for the presentation of additional testimony following which the prayers of Sabina's petition were again denied. The Board affirmed. This appeal followed.
Sabina argues that the agreement is ambiguous as to whether benefits for specific loss or total disability were originally contemplated. However, we note that the form agreement used by Sabina required Section 306(c) specific losses to be explicitly denominated as such and that such denomination is absent.
The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 513.
The question is whether there was an error of law or whether the referee capriciously disregarded the evidence in denying the employer's petition. We affirm.
Medical testimony indicates that Goffi continues to suffer from pain in his hand, arm, neck and back directly attributable to the finger amputations. In addition, the usefulness of Goffi's injured hand beyond the point of amputation is further limited by widespread numbness and extreme sensitivity to cold. While, as a general matter, the specific loss of fingers by amputation is compensable under Section 306(c); where, as here, competent medical evidence establishes separate and distinct disability extending to other parts of the body resulting from the specific loss, an award of total disability benefits under Section 306(a) may be warranted. Martin Trucking Company v. Workmen's Compensation Appeal Board, 55 Pa. Commw. 174, 422 A.2d 1225 (1980); Workmen's Compensation Appeal Board v. Brockway Glass, 21 Pa. Commw. 444, 346 A.2d 916 (1975); Carnovale v. Supreme Clothes, Inc., 7 Pa. Commw. 253, 298 A.2d 640 (1973); Breedy v. Sharp Shearer, Inc., 7 Pa. Commw. 369, 298 A.2d 702 (1972); Groncki v. Allegheny Pittsburgh Coal Co., 204 Pa. Super. 465, 205 A.2d 624 (1965).
It was found that Goffi's disability continued to be total and thus rejected Sabina's second argument. Our careful review of the record discloses substantial evidence supporting this finding. Goffi's treating physician testified repeatedly that Goffi's permanent inability to use the injured hand for grasping, lifting or pulling rendered a return to his former employment impossible. The testimony of Sabina's medical expert, while conflicting on some minor particulars, was not to the contrary. No evidence was introduced by Sabina of alternative employment and in the absence of such evidence a modification petition must be denied. Dumm v. Workmen's Compensation Appeal Board, 42 Pa. Commw. 594, 401 A.2d 415 (1979); U.S. Steel Corp. v. Workmen's Compensation Appeal Board, 10 Pa. Commw. 67, 308 A.2d 200 (1973).
Accordingly, we enter the following:
ORDER
AND NOW, this 24th day of December, 1980, the decision of the Workmen's Compensation Appeal Board is affirmed.