Joyce Western Corp. v. Workmen's Compensation Appeal Board

542 A.2d 990, 518 Pa. 191, 1988 Pa. LEXIS 167
CourtSupreme Court of Pennsylvania
DecidedMay 27, 1988
Docket75 W.D. Appeal Dkt. 1987
StatusPublished
Cited by30 cases

This text of 542 A.2d 990 (Joyce Western Corp. v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joyce Western Corp. v. Workmen's Compensation Appeal Board, 542 A.2d 990, 518 Pa. 191, 1988 Pa. LEXIS 167 (Pa. 1988).

Opinions

OPINION

NIX, Chief Justice.

On November 23, 1977, appellee William P. Fichtorn was injured in the course of employment with appellant Joyce Western Corporation. The injury occurred while appellee, who was clearing a pipeline of vegetation, was struck in the right eye with a tree limb. Compensation was paid at the total disability rate of $199 per week from December 2, 1977, to January 10, 1978. Appellee returned to work on the latter date without loss in earnings.

On May 15, 1979, appellant filed a Petition for Termination with the Workmen’s Compensation Appeal Board (the “Board”).1 Two decisions by the referee below, filed in 1981 and 1982, had been remanded by the Board to the [194]*194referee upon appeal by Mr. Fichtorn, with instructions to make specific findings of fact and conclusions of law. It is the third decision of the referee which forms the basis of the instant appeal.

The parties stipulated that the sole issue before the referee was “whether the claimant has sustained a specific loss of his eye.” The referee issued the following conclusion of law: “Claimant has lost the use of his right eye for all practical intents and purposes,” and pursuant thereto, ordered that claimant receive compensation from his employer or its insurance carrier for the specific loss of his eye.2 The referee made the following findings of fact which go to the heart of the controversy:

7. After a careful review of the evidence, your Referee finds that while the claimant did sustain an injury to his right eye, which, uncorrected, has caused him to lose the use of said eye, the claimant could undergo surgery with only a minimal risk of failure which would restore sight to his right eye.
8. Your Referee finds that the claimant’s specific loss has been caused by his own refusal to undergo corrective surgery.
9. Your Referee finds that the claimant’s refusal to undergo corrective surgery is unreasonable under the circumstances. However, your Referee does not have the power to order claimant to undergo surgery.

The Board reviewed the referee’s decision pursuant to appeals taken by each party. Although the Board recognized that the findings of fact quoted above do not support the referee’s Order, it upheld the referee’s Decision and Order on the theory that sufficient competent evidence had been adduced at the hearing to support the referee’s finding of fact pertinent to the stipulated issue. The Board further concluded that the findings of fact in question are “super[195]*195fluous and have no bearing whatsoever on the referee’s decision awarding a specific loss/’

An appeal was taken by appellant to the Commonwealth Court, which affirmed the decision of the Board. The Commonwealth Court found that the stipulation eliminated the issue of the reasonableness of the corrective surgery, and that the Board properly determined that claimant sustained a “compensable loss of vision and use of his right eye.” Joyce Western Corporation v. Workmen’s Compensation Appeal Board (William P. Fichtorn), 103 Pa.Cmwlth.Ct. 204, 210, 519 A.2d 1107, 1110 (1987). Appellant filed a petition for allowance of appeal, requesting this Court to consider whether specific loss benefits should be awarded when the injury sustained could be corrected by a reasonable surgical procedure. We granted the petition and now reverse.

There are three recognized types of compensable disability under the Workmen’s Compensation Act (the “Act”): total, partial, and specific loss disability. Sections 306(a), (b), (c), 77 P.S. §§ 511, 512, 513 (Supp.1987). These categories have been enacted for distinct purposes. Total or partial disability benefits are awarded to employees who sustain work-related injuries and, as a result, either are unable to work, or witness a loss in earning power. Specific loss benefits, however, are payable without regard either to the employee’s capacity to work or to his earning power, as long as the statutory criteria for these benefits have been satisfied. Killian v. Heintz Div. Kelsey Hayes, 468 Pa. 200, 205, 360 A.2d 620, 623 (1976). Appellee has alleged that he sustained a specific loss of an eye, which is covered by section 306(c)(7), 77 P.S. § 513(7) of the Act:

For all disability resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows:
(7) For the loss of an eye, sixty-six and two-thirds percentum of wages during two hundred seventy-five weeks. Section 306(c)(7), 77 P.S. § 513(7).

[196]*196The statute further provides that “permanent loss of the use of an ... eye ... shall be considered as the equivalent of the loss of such ... eye.” (Emphasis added.) Section 306(c)(24), 77 P.S. § 513(24). Phillips v. Workmen’s Compensation Appeal Board, 16 Pa.Cmwlth.Ct. 6, 328 A.2d 925 (1974). Thus, the injured eye need not be destroyed in order for a claimant to receive a compensation award for specific loss. However, in order to prevail under the Act, a claimant must demonstrate that he has suffered “the permanent loss of use of the injured member for all practical intents and purposes.” Curran v. Walter E. Knipe & Sons, Inc., 185 Pa.Super. 540, 547, 138 A.2d 251, 255 (1958); Thiele, Inc. v. Workmen’s Compensation Appeal Board (Sulosky), 83 Pa.Cmwlth.Ct. 286, 477 A.2d 51 (1984); Neshaminy Construction Co. v. Workmen’s Compensation Appeal Board (Martin), 43 Pa.Cmwlth.Ct. 357, 402 A.2d 1111 (1979).

The loss of use of a member is not permanent where surgery will restore some or all of its function, and thus a specific loss will not be found. See Barbieri, 1 Pa. Work. Comp. § 5.21(21). Thus, the question of correctibility of the injury is properly at issue in a specific loss case. See, e.g., Criner v. McKee Glass Co., 162 Pa.Super. 627, 60 A.2d 595 (1948).

There is no dispute in the instant appeal as to the fact that, in its present state, appellee’s right eye is virtually useless. The testimony of the opthalmologists appearing for each party bears out this conclusion. Appellant argues, however, that since appellee’s condition can be corrected by a reasonable surgical procedure, appellee has not sustained a specific loss, since the injury is not permanent, and thus, appellant should not be required to compensate appellee pursuant to the specific loss provisions of the Act.3

[197]*197The issue of whether a claimant may receive compensation for the permanent loss of a body part when his condition can be remedied through reasonable surgery has never been specifically addressed by this Court.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. WCAB (Exel Logistics)
890 A.2d 1045 (Supreme Court of Pennsylvania, 2005)
Alltel, Inc. v. Workers' Compensation Appeal Board
829 A.2d 739 (Commonwealth Court of Pennsylvania, 2003)
American Red Cross v. Workers' Compensation Appeal Board
741 A.2d 244 (Commonwealth Court of Pennsylvania, 1999)
Curtis v. Workers' Compensation Appeal Board
730 A.2d 528 (Commonwealth Court of Pennsylvania, 1999)
Davis v. Workers' Compensation Appeal Board
711 A.2d 1096 (Commonwealth Court of Pennsylvania, 1998)
Pirelli-Armstrong Tire Co. v. Reynolds
562 N.W.2d 433 (Supreme Court of Iowa, 1997)
Harper & Collins v. Workmen's Compensation Appeal Board
672 A.2d 1319 (Supreme Court of Pennsylvania, 1996)
Scapellato v. Workmen's Compensation Appeal Board
671 A.2d 1196 (Commonwealth Court of Pennsylvania, 1996)
Abington Memorial Hospital v. Workmen's Compensation Appeal Board
650 A.2d 407 (Supreme Court of Pennsylvania, 1994)
Moore v. Workmen's Compensation Appeal Board
648 A.2d 88 (Commonwealth Court of Pennsylvania, 1994)
Litak v. Workmen's Compensation Appeal Board
624 A.2d 773 (Commonwealth Court of Pennsylvania, 1993)
Steel City Painting Co. v. Workmen's Compensation Appeal Board
618 A.2d 1199 (Commonwealth Court of Pennsylvania, 1992)
Abington Memorial Hospital v. Workmen's Compensation Appeal Board
616 A.2d 767 (Commonwealth Court of Pennsylvania, 1992)
Textron, Inc. v. Workmen's Compensation Appeal Board
613 A.2d 626 (Commonwealth Court of Pennsylvania, 1992)
Mardis v. Workmen's Compensation Appeal Board
603 A.2d 672 (Commonwealth Court of Pennsylvania, 1992)
Ashe v. Workmen's Compensation Appeal Board
594 A.2d 824 (Commonwealth Court of Pennsylvania, 1991)
Addy Asphalt Co. v. Workmen's Compensation Appeal Board
591 A.2d 11 (Commonwealth Court of Pennsylvania, 1991)
Mills v. Workmen's Compensation Appeal Board
588 A.2d 1350 (Commonwealth Court of Pennsylvania, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
542 A.2d 990, 518 Pa. 191, 1988 Pa. LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joyce-western-corp-v-workmens-compensation-appeal-board-pa-1988.