Summary
In U.S. Steel Corporation v. Workmen's Compensation Appeal Board, 18 Pa. Commw. 35, 333 A.2d 836 (1975), we held that a claimant must show more than an "industrial loss" of use to meet his burden of proof under Section 306(c) of the Law.
Summary of this case from Taylor v. W.C.A.BOpinion
Argued December 6, 1974
March 18, 1975.
Workmen's compensation — Scope of appellate review — Error of law — Findings of fact — Substantial evidence — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Amputation — Loss of industrial use — Words and phrases — Loss of use.
1. In a workmen's compensation case where the Workmen's Compensation Appeal Board took no additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether an error of law was committed and whether the findings of the referee are supported by substantial evidence. [37]
2. Under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, an employee suffering a compensable injury resulting in the amputation of a foot at the ankle suffers a loss of the foot, and where an amputation of a lesser part occurs, recovery must be based on a permanent loss of the use of the foot. [37]
3. The test under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, for a determination of whether an injured employee has lost the use of a member is not whether a loss of the industrial use of the member has occurred, but whether there is a permanent loss of use of the injured member for all practical intents and purposes. [37-38]
Argued December 6, 1974, before Judges CRUMLISH, JR., MENCER and BLATT, sitting as a panel of three.
Appeal, No. 184 C.D. 1974, from the Order of the Workmen's Compensation Appeal Board in case of Thomas P. Elkins v. U.S. Steel Corporation, No. A-67341.
Petition with Department of Labor and Industry for review of workmen's compensation agreement. Additional benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Award modified. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Appeal sustained. Record remanded.
Richard F. Lerach, for appellant.
Alexander J. Pentecost, with him James N. Diefenderfer, for appellees.
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, the claimant filed a petition for benefits alleging that he suffered "industrial loss of a foot." He subsequently withdrew the petition, however, and entered into an agreement with the employer for compensation for the specific loss of all five toes. Under the agreement, benefits were paid over the maximum allowable period of 104 weeks after which they were suspended. Thereafter, on August 9, 1972, the claimant filed a petition for review alleging that he was entitled to additional specific losses. After hearings, the referee found as fact that "the claimant suffered the industrial loss of his left foot" and awarded additional benefits for a maximum period of 150 weeks under Section 306 (c) of The Workmen's Compensation Act, 77 P. S. § 513. On appeal the Board affirmed but modified the schedule for payments to include a credit for all payments made pursuant to the agreement for compensation for the loss of five toes. The employer has now appealed to this Court.
The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1 et seq.
Section 306 (c) of The Pennsylvania Workmen's Compensation Act, 77 P. S. § 513.
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 claimant has suffered the permanent loss of use of an injured member. Curran v. Knipe § Sons, Inc., 185 Pa. Super. 540, 138 A.2d 251 (1958). At one time the act referred to the claimant's loss of use of the member for industrial purposes. Section 306(c) of The Workmen's Compensation Act, Act of June 4, 1937, P.L. 1552. Since 1939, however, that test has been deleted and the proper test now is whether or not the claimant has suffered the permanent loss of use of the injured member for all practical intents and purposes. Wilkes-Barre Iron Wire Works, Inc. v. Workmen's Compensation Appeal Board, 9 Pa. Commw. 612, 309 A.2d 172 (1973); Verna v. Stabler, 204 Pa. Super. 87, 203 A.2d 578 (1964); Curran v. Knipe Sons, Inc., supra.
"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. Super. 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.