Jessop Steel Co. v. Workmen's Compensation Appeal Board

551 A.2d 337, 121 Pa. Commw. 493, 1988 Pa. Commw. LEXIS 923
CourtCommonwealth Court of Pennsylvania
DecidedDecember 6, 1988
DocketAppeal No. 1393 C.D. 1987
StatusPublished
Cited by3 cases

This text of 551 A.2d 337 (Jessop Steel Co. v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jessop Steel Co. v. Workmen's Compensation Appeal Board, 551 A.2d 337, 121 Pa. Commw. 493, 1988 Pa. Commw. LEXIS 923 (Pa. Ct. App. 1988).

Opinion

Opinion by

Judge Smith,

Petitioner Jessop Steel Company (Employer) appeals from the order of the Workmens Compensation Appeal Board (Board) which affirmed the referees decision awarding compensation to William Mosier (Claimant) for specific loss pursuant to The Pennsylvania Workmens Compensation Act (Act).1 The sole issue presented for review is whether Employer is entitled to a credit against any specific loss payments made under the instant award for total disability benefits previously paid to Claimant. The Boards decision is vacated and remanded.

Claimant currently receives total disability compensation pursuant to a Notice of Compensation Payable which was issued February 7, 1980 for work-related injuries sustained on January 24, 1980 when his legs were crushed and burned after hot steel slabs in excess of 12,900 pounds collapsed on him at work. Claimant filed the instant Petition for Review of the Notice of Compensation Payable on or about February 17, 1984 alleging that all disability as a result of his January 24, 1980 work-related injury had resolved into a loss of use of his legs, and requesting payments of specific loss benefits as opposed to total disability benefits.

[495]*495After hearings held April 3, 1984; November 13, 1984; February 6, 1985; and March 12, 1986, the referee determined that Claimant was entitled to specific loss benefits for a loss of use of both legs for all practical intents and purposes under Section 306(c) of the Act, 77 P.S. §513. The referee further determined that Claimant was entitled to total disability benefits under the February 7, 1980 Notice of Compensation Payable since no evidence was presented to establish that all disability had resolved into a loss of use of both legs. The referee also directed suspension of specific loss payments until Claimants prior total disability payments expired or upon Claimants election to receive specific loss benefits as opposed to total disability benefits. Employer appealed to the Board, which affirmed the referees decision, whereupon Employer petitioned this Court for review.2

Employer does not contest the referees finding that Claimant lost the use of his legs for all practical intents and purposes. Findings of Fact No. 5 provides:

Upon consideration of lay testimony and all medical evidence of record in this case and based upon sufficient, competent and credible medical evidence of record in this case from Dr. Glenn Hisrich, a Board Certified orthopedic surgeon, your Referee finds as a fact that the claimant has lost the use of both his right and left legs for all practical intents and purposes.

Employer challenges instead the referees Findings of Fact No. 6 which states as follows:

Although the claimant has clearly sustained his. burden of establishing that he has sustained a [496]*496loss of use of both his right and left legs for all practical intents and purposes, no evidence has been presented to establish that all disability associated with the claimant’s work injury has resolved itself into a loss of use of his right leg and left leg. (Emphasis added.)

Employer contends that the referee erred in finding no evidence to establish that all disability had resolved into specific loss after finding that Claimant suffered a loss of use for all practical intents and purposes. Employer also contends that this finding is unsupported by substantial evidence. It is Employers position that medical testimony accepted by the referee clearly establishes the date of Claimants specific loss injury as January 24, 1980, the date of his work-related incident, and that Claimants sole injury was to both legs.3 Employer thus argues that since the evidence establishes that Claimant lost the use of his legs for all practical intents and purposes when injured on January 24, 1980, Employer is entitled to a credit for all payments previously made to Claimant for total disability in excess of the amount Claimant is authorized to receive for specific loss.4

[497]*497Claimant contends, on the other hand, that the only medical testimony, which was presented by Claimants treating physician, supports the referees findings. Claimant asserts that Dr. Hisrich never testified that Claimants sole injury was to his legs; that testimony as to whether or not Claimants injury extended beyond the specific loss was never elicited from Dr. Hisrich by Employer; and that the burden of proving that Claimants disability did not extend beyond the specific loss fell upon Employer.5 Claimant therefore argues that Employer is not entitled to credit.

This Court is precluded from effectively reviewing the matter sub judice in light of the ambiguity which permeates the referees decision. The referee, on one [498]*498hand, found that Claimant lost the use of his legs for all practical intents and purposes, but found as well that no evidence was presented to establish that all disability as a result of Claimants work injury resolved into the loss of use of his legs. Findings of Fact Nos. 5, 6. Thereafter, based upon his finding of the absence of evidence to establish that all disability resolved into a specific loss, the referee determined that Claimant must be paid for total disability in accordance with the Notice of Compensation Payable. Conclusions of Law No. 2. These findings and conclusions could suggest that the referee determined that Claimant suffers from a specific loss injury as well as another distinct injury which results in total disability since Employer failed to establish that Claimants total disability had resolved exclusively into specific loss of use of both legs. Ordinarily, a claimant whose injury is compensable as a specific loss is not entitled to additional compensation even if totally disabled by his/her permanent injury unless an injury to another part of the body is found to be the direct result of the claimants permanent injury and causes a disability separate and distinct from that which normally follows the specific loss injury. Painter v. Workmen's Compensation Appeal Board (Universal Cyclops), 91 Pa. Commonwealth Ct. 59, 496 A.2d 907 (1985).6 However, simply because the referee found no evidence that Claimants disability was restricted to his legs does not mean that the referee found other disabling injuries.

Furthermore, the referee also directed suspension of specific loss payments until such time as Claimants total disability payments end or until Claimant elects to be paid specific loss benefits as opposed to total disabil[499]*499ity benefits. Conclusions of Law No. 2. This direction by the referee negates any finding that Claimant is entitled to total disability benefits in addition to specific loss benefits under the exception to the general rule above noted. If the matter sub judice is a case fitting within the exception, then Employer would not be entitled to credit for previous payments, thereby supporting the referees silence as to the issue of credit. See Painter. Should this matter more appropriately fall within the general rule, however, the referees findings are inadequate with respect to the issue of whether Employer is entitled to credit. See Elliott v.

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Related

Weyerhaeuser Co. v. Workmen's Compensation Appeal Board
625 A.2d 1283 (Commonwealth Court of Pennsylvania, 1993)
Mosier v. Workmen's Compensation Appeal Board
601 A.2d 1319 (Commonwealth Court of Pennsylvania, 1992)
City of Philadelphia v. Workmen's Compensation Appeal Board
601 A.2d 449 (Commonwealth Court of Pennsylvania, 1991)

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Bluebook (online)
551 A.2d 337, 121 Pa. Commw. 493, 1988 Pa. Commw. LEXIS 923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jessop-steel-co-v-workmens-compensation-appeal-board-pacommwct-1988.