Hutz v. Workmen's Compensation Appeal Board

540 A.2d 1380, 116 Pa. Commw. 162, 1988 Pa. Commw. LEXIS 390

• Court: Commonwealth Court of Pennsylvania
• Decided: May 13, 1988
• Docket: Appeal, 941 C.D. 1986
• Status: Published

Opinions

Opinion by

Judge Palladino,

Steve Hutz (Petitioner) appeals from an order of the Workmens Compensation Appeal Board (Board) amending the referees order to reflect that compensation for Petitioners specific loss award became due and payable on November 5, 1982 and not May 2, 1974, and assessing statutory interest as of November 5, 1982. We affirm.

Petitioner was employed by Stefanak and Son (Employer) as a sheet metal welder. On February 20, 1973, Petitioner sustained a crushing injury to his right hand and four fingers during the course of his employment. As a result of this injury, Petitioner received workmens compensation from February 21, 1973 to October 28, 1973 pursuant to a Notice of Compensation Payable. On October 29, 1973 Petitioner returned to work. Petitioner worked for approximately two months and was then laid off by Employer.

On October 15, 1982, Petitioner filed a modification petition alleging that as a result of the injury on February 20, 1973, he had lost the use of 100% of his right index, middle, ring and little finger for all practical intents and purposes. On January 25, 1985, the referee granted Petitioners modification petition.

The referee found that in a report submitted by Dr. McClain on April 30, 1974 and received by Employer on May 2, 1974, Dr. McClain stated that it was his opinion that Petitioner “had approximately 50% permanent physical impairment and loss of physical function in each individual finger.” Finding of feet no. 11. On the basis of this report, the referee found that Employer had notice of Petitioners losses of use on April 30, 1974. Finding of fact no. 13. Also, the referee concluded as a matter of law that Employer had proper notice of Petitioners specific losses on or about May 2, 1974. Conclusion of Law no. 7. The referee awarded Petitioner compensation payable from May 2, 1974 and assessed interest as of that date.

Employer appealed the referees award alleging that the evidence did not support the referees finding that Employer had notice of Petitioners losses of use on April 30, 1974 and that the referees conclusion of law that Employer had notice on or about May 2, 1974 was in error. The Board concluded that Dr. McClains report was not sufficient competent evidence to support the referees finding that Employer had notice of Petitioners losses of use on April 30, 1974. The Board concluded that Employer did not have notice of Petitioners specific loss claim until Petitioner filed his modification petition on October 15, 1982. The Board amended the referees order accordingly, making compensation for Petitioners specific loss award due and payable on November 5, 1982, and assessing statutory interest as of November 5, 1982.

On appeal to this court,¹ Petitioner contends that the Board erred in amending the referees order. Petitioner contends that Dr. McClains report constitutes substantial evidence to support the referees finding that Employer received notice on April 30, 1974. Petitioner maintains that compensation should be payable beginning May 2, 1974 and that interest should be assessed as of May 2, 1974.

Section 406.1 of The Pennsylvania Workmens Compensation Act (Act),² provides that “the first installment of compensation shall be paid not later than the twenty-first day after the employer has notice or knowledge of the employes disability.” Section 406.1 further provides that “interest shall accrue on all due and unpaid compensation at the rate of ten per centum per annum.” Thus, interest begins to accrue 21 days after the employer has notice of the employees disability. Lastoka v. Workmen's Compensation Appeal Board, 51 Pa. Commonwealth Ct. 310, 413 A.2d 481 (1980).

The issue before us in this case is when exactly did Employer have notice of Petitioners specific loss claim. Certainly, Employer had notice of Petitioners specific loss claim on October 5, 1982 when Petitioner filed his modification petition alleging that he had lost 100% use of each of his four fingers for all practical intents and purposes. The question is whether the Employer had notice of Petitioners specific loss claim before the modification petition was filed.

Whether or not an employer has received adequate notice is a question of fact for the referee. Miller v. Workmen's Compensation Appeal Board (Atlas Powder Company), 78 Pa. Commonwealth Ct. 22, 466 A.2d 787 (1983). A finding of notice will be upheld if supported by substantial evidence. Beaver Supermarket v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 505, 424 A.2d 1023 (1981). We have carefully reviewed the record and conclude that there is not substantial evidence to support the referees finding that Employer had notice of Petitioners specific loss claim before the modification petition was filed.

The notice requirement of section 311 of the Act,³ is met when the employer has knowledge of a compensable injury. Van Patton v. Workmen's Compensation Appeal Board (Scott Paper Company), 86 Pa. Commonwealth Ct. 538, 485 A.2d 541 (1984). In order to be compensable under the specific loss provisions of the Act, a loss of use of a body part must be for all practical intents and purposes. Burkey v. Workmen's Compensation Appeal Board (North American Rockwell), 80 Pa. Commonwealth Ct. 540, 471 A.2d 1325 (1984). A loss of 50% of the usefulness of a body part is not compensable as a loss of one-half of the body part. Id.

Petitioner contends that (one sentence in Dr. McClains report of April 30, 1974 provided Employer with notice of Petitioners specific loss claim. Dr. McClain stated, “On the basis of the limited motion that is now present in the fingers, I feel that each digit has approximately 50% of physical impairment and loss of physical function of each individual finger.” Applying the principles set out in Burkey, the 50% loss of function described by Dr. McClain is not compensable under the specific loss provisions of the Act. Thus, Dr. McClains statement did not give Employer notice of a compensable injury.

Dr. McClains report did not put Employer on notice that Petitioner had lost the use of his four fingers for all practical intents and purposes. The report does not state that Petitioner was unable to work because of his injury. In fact, the report indicates that Petitioner had more movement in 3 of his fingers than he did when he was examined by Dr. McClain in September of 1973, at which time Petitioner was working for Employer. As far as Employer knew, the only reason that Petitioner was not working was because he was laid off.

Thus, we conclude that there was not substantial evidence tp. support the referees finding that Employer had notice of Petitioners specific loss claim before Petitioner filed his modification petition. Accordingly, we affirm the order of the Board awarding Petitioner compensation and interest from November 5, 1982, which is 21 days from the date the modification petition was filed and Employer had notice of Petitioners specific loss claim.

Order

And Now, May 13, 1988, the decision of the Workmen’s Compensation Appeal Board in the above-captioned case is affirmed.

1 Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Bailey v. Workmen's Compensation Appeal Board (Lawton Feed & Supply, Inc.), 105 Pa. Commonwealth Ct. 106, 523 A.2d 415 (1987).

2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §717.1.

3 77 P.S. §631. Section 311 of the Act provides in pertinent part:

Unless the employer shall have knowledge of the occurrence of the injury, or unless the employer or someone in his behalf . . . shall give notice thereof to the employer within twenty-one days after the injury, no compensation shall be due until notice is given. . . .