Adelphia Button Co. v. McKenna

Opinion by Judge Rogers, Elizabeth McKenna sustained injuries to the fingers of her right hand while operating a punch press in her employment by Adelphia Button Company. The parties entered into an agreement in which the claimant’s injuries were described as follows: “[c]rushed right index finger and rt. Middle finger, third finger broken, 4th finger fractured. Extent of amputation undetermined to date. ...” In fact, portions of the claimant’s index finger and middle fingers were amputated in the accident. Surgeons attempted to sew the fingers back in place, but the middle finger failed to remain in place, the end of the index finger which had been sewn back was required to be removed and a reamputation of the index finger performed. After making payments for 53 weeks under an open total disability agreement, the employer stopped payments and filed a Petition to Modify, alleging that the claimant’s injuries had resolved themselves into a loss of one-half of the right index finger and the loss of the right middle finger with a six-week healing period. The referee found that the claimant’s condition of total [654] disability continued and denied tbe petition for modification and ordered tbe employer to continue payments for total disability. Tbe Workmen’s Compensation Board affirmed. Tbe employer has appealed to this court, contending that the Board capriciously disregarded evidence that (1) tbe parties bad stipulated at tbe bearing that tbe only remaining disability was tbe loss of two fingers with appropriate healing period and (2) that in fact claimant was not totally disabled at tbe time of tbe bearing. Tbe testimony was, as tbe appellant contends, badly recorded. Tbe record is, however, of a clarity sufficient to support tbe decision of tbe compensation authorities. Tbe appellant went to tbe bearing with tbe burden of proving that tbe claimant’s total disability, established by tbe agreement, bad decreased. Pellegrino v. Baldwin-Lima-Hamilton Corp., 5 Pa. Commonwealth Ct. 150, 289 A. 2d 531 (1972); Fehr v. Y.M.C.A., Pottsville, 201 Pa. Superior Ct. 107, 192 A. 2d 143 (1963). It adduced no testimony. Its counsel appears to have gone to tbe bearing assuming that if be there conceded that there was a loss of two fingers instead of tbe entire loss of one finger and of one-balf of another, as alleged in its Petition to Modify, then claimant’s counsel would agree that compensation should be awarded on that basis. Tbe colloquy which took place at tbe opening of tbe bearing reveals no concession by claimant’s counsel that her client’s disability was so limited, and tbe fact that tbe claimant thereafter testified seems inconsistent with tbe assertion that tbe parties bad agreed on tbe extent of disability. Further, tbe Rules of Procedure of tbe Workmen’s Compensation Board wisely provide that stipulations should be reduced to writing and filed with tbe compensation authorities. Article III, Rule (8), 77 P.S. Appendix, p. 425. Nor does tbe record indicate a capricious disregard of competent evidence that tbe claimant was not totally [655] disabled at tbe time of tbe hearing. As noted, tbe employer produced no evidence. Tbe claimant testified and was not questioned by either counsel concerning her then condition of disability. Since tbe burden was on tbe employer to prove a decrease of disability, tbe referee and tbe Board quite properly concluded that tbe condition of total disability admitted in tbe agreement continued. Order And now, to wit, this 7th day of May, 1973, tbe order of tbe Workmen’s Compensation Board is affirmed; judgment is hereby entered in favor of Elizabeth McKenna, tbe claimant, and against tbe Adelphia Button Company and Aetna Insurance Company, defendants, for compensation at tbe rate of $45.33 per week beginning December 11, 1969 and continuing for an indeterminate period in accordance with Tbe Pennsylvania Workmen’s Compensation Act, together with interest at tbe rate of six (6%) percent per annum on unpaid installments from tbe due date thereof; tbe defendant insurance carrier is entitled to credit for compensation benefits paid to tbe claimant at tbe rate of $45.33 per week for a period of 53 weeks.