Opinion
Argued December 7, 1978
January 23, 1979.
Workmen's compensation — Loss of use of hand — Power of Workmen's Compensation Appeal Board — View of injured hand.
1. The Workmen's Compensation Appeal Board may find that a claimant has not lost the use of a hand as claimed although a referee hearing evidence made a contrary finding, if the Board viewed the injured hand, as the mere viewing of the hand by the Board constituted the taking of new testimony. [80-1]
Judge MacPHAIL filed a dissenting opinion which was substantially as follows:
1. The Workmen's Compensation Appeal Board has no power to reverse a finding of a referee as to the extent of an injury to a hand when no evidentiary hearing was held by the Board nor record made concerning a view by the Board of the injury and when the only basis for the reversal was the observation it made of the claimant when he was present at oral argument before the Board. [81-2]
Argued December 7, 1978, before Judges WILKINSON, JR., ROGERS and MacPHAIL, sitting as a panel of three.
Appeal, No. 419 C.D. 1977, from the Order of the Workmen's Compensation Appeal Board in case of Anthony J. McGartland v. AMPCO-Pittsburgh Corp., No. A-71793.
Petition with the Department of Labor and Industry to review workmen's compensation agreement. Petition granted. Additional benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Decision reversed. Additional benefits denied. Petitioner appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Alexander J. Pentecost, for appellant.
David M. McCloskey, with him Will Keisling, for appellees.
Following a work-related injury to his left hand in the course of his employment as a die setter, a compensation agreement provided payments for the loss of the index, middle and ring fingers of claimant's left hand. Subsequently claimant returned to work as a payroll and insurance clerk at no loss in earnings.
The matter is before us now as a result of a petition for review alleging loss of the use of the left hand for all practical intents and purposes. The referee found that the claimant had lost the use of the hand for all practical intents and purposes within the meaning of Section 306(c)(24) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 513(24).
On appeal, the Workmen's Compensation Appeal Board (Board) after viewing the claimant's left hand, unanimously reversed the referee and dismissed the review petition of claimant. We affirm.
All the issues raised here have been considered and decided by this Court in the recent decision of Westinghouse Electric Corp. v. Workmen's Compensation Appeal Board, 33 Pa. Commw. 50, 381 A.2d 191 (1977). There the referee had found no loss of use of the hand but was reversed by the Board which viewed the hand. We there concluded that Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commw. 352, 326 A.2d 440 (1975) did not control since the mere viewing of the hand constituted the taking of new testimony by the Board. "In the case at hand, the referee's finding was apparently vacated by the Board because it believed that the finding was not supported by competent evidence." Westinghouse Electric, supra, 33 Pa. Commw. at 53, 381 A.2d at 192. In the instant case it is clear that this was what the Board did. We quote from the Board's opinion:
Normally, we would be powerless to intervene and would have to sustain his [the referee's] award if competent evidence can support it. However, during the argument of this case, this Board had occasion to observe Claimant's hand and his ability to function with it. Since we made this observation, we have in effect taken additional testimony and are not bound by the Referee's Findings of Fact. We are of the unanimous decision that according to the dictates of Section 306(c) the claimant has not suffered the loss of use of his left hand for all practical intents and purposes.
See Lebanon Steel Foundry v. Workmen's Compensation Appeal Board, 12 Pa. Commw. 530, 317 A.2d 315 (1974).
Accordingly, we will enter the following
ORDER
AND NOW, January 23, 1979, the Order of the Workmen's Compensation Appeal Board entered to No. A-71793, dated February 17, 1977, dismissing claimant's Review Petition is affirmed.
I respectfully dissent. As the majority opinion indicates, Claimant seeks workmen's compensation benefits for loss of the use of his left hand for all practical intents and purposes under Section 306(c) of the Act. The referee found in Claimant's favor. The employer appealed.
At argument, the Claimant was present and during the course of the argument the Board observed the Claimant's hand "and his ability to function with it." The Board concluded, "we have in effect taken additional testimony and are not bound by the referee's findings of fact." (Emphasis added.)
Certainly there is no dispute that the Board is authorized to hear other evidence under the provisions of Section 423 of the Act, 77 P. S. § 854. As noted in the majority opinion, both Lebanon Steel Foundry v. Workmen's Compensation Appeal Board, 12 Pa. Commw. 530, 317 A.2d 315 (1974) and Westinghouse Electric Corp. v. Workmen's Compensation Appeal Board, 33 Pa. Commw. 50, 381 A.2d 191 (1977) are cases where the Board has reversed a referee on the basis of the Board's own view of the claimant's injury. The important difference between those cases and the instant case is that in the prior cases the Board made its observations at a hearing where presumably there was a record for this Court to review and at the very least the Claimant was on notice that a hearing would be held.
In my judgment, the decision of the majority in the instant case means that any claimant who desires to attend oral argument before the Board does so at the risk of being observed by the Board at that time and having the Board substitute its findings for that of a referee based upon what the Board observes. I think such a procedure does not conform with either the intent or the spirit of the Act. I would reverse and remand to the Board for the purpose of taking additional testimony.