Opinion
No. 1725 C.D. 2014
04-23-2015
Benito Rivera, Petitioner v. Workers' Compensation Appeal Board (Pro Pallet, LLC), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Benito Rivera (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision and order of a Workers' Compensation Judge (WCJ) denying his Claim Petition. We affirm.
On August 17, 2011, Claimant, an assembly line worker, sustained work injuries to his right thumb and right index finger in a circular saw accident. On September 2, 2011, Pro Pallet, Inc. (Employer) issued a Notice of Temporary Compensation Payable (NTCP). (WCJ Decision, Finding of Fact (F.F.) ¶1.) Employer commenced payment of total disability benefits at the rate of $286.95 per week effective the date of the injury. Claimant filed a Claim Petition on October 9, 2011, alleging full disability from August 17, 2011 and ongoing, as well as loss or loss of use of a specific body part or parts. On November 8, 2011, Claimant returned to work at no loss of earnings, and on November 10, 2011, Employer issued a Notice Stopping Temporary Compensation (NSTC) and a Notice of Compensation Payable (NCP), which confirmed that Claimant suffered a right thumb fracture and a right index finger amputation; the NCP indicated that Claimant would be paid a total of 56 weeks of benefits for the right index finger amputation, with 50 weeks for the loss and a 6-week healing period. (Id., F.F. ¶3.) The 56 weeks totaled $16,069.20; however, Employer took a credit for the 6-week healing period since Claimant was paid total disability from August 17, 2011 through November 7, 2011, and issued a check to Claimant of $14,347.50 in payment of specific loss benefits for loss of his index finger. (Id., F.F. ¶¶3, 24; Board Opinion at 1.)
"A specific loss is either (1) the loss of a body part by amputation or (2) the permanent loss of use of an injured body part for all practical intents and purposes." Schemmer v. Workers' Compensation Appeal Board (U.S. Steel), 833 A.2d 276, 279 n.5 (Pa. Cmwlth. 2003).
At a hearing held on February 10, 2012, Claimant amended his Claim Petition to include a claim for specific loss benefits for the loss of his right thumb. (2/10/12 Hearing Transcript (2/10/12 H.T.) at 3; Board Opinion at 2.) At that hearing, Claimant's counsel explained that both the right thumb and the right index finger were severed in the accident, but the thumb was surgically reattached. (2/10/12 H.T. at 3.) Following the replantation of his right thumb, Claimant went on to develop end stage post traumatic arthritis of the right thumb interphalangeal (IP) or distal joint and continued to have pain, which required IP joint arthrodesis, or fusion; this surgical procedure occurred on March 15, 2012. (WCJ Decision, F.F. ¶¶18, 25; Board Opinion at 2, 4.) At a subsequent hearing held on July 6, 2012, at which Claimant testified, Claimant's counsel stated that Claimant was alleging either loss of use of the right thumb or half loss of use of the right thumb. (7/6/12 Hearing Transcript (7/6/12 H.T.) at 6-7.) At the July hearing, Claimant further indicated that he was seeking a six week healing period for the amputation of his right index finger, a ten week healing period for his right thumb, and fifty weeks for the specific loss of one-half the thumb. (WCJ Decision, F.F. ¶ 12.) Claimant testified that he could use his right hand, but it hurt when he had to work hard; he stated that he could not bend his right thumb like he could bend other digits, and that the inside of the thumb was numb, as was the back of the thumb from the knuckle to the tip. (7/6/12 H.T. at 13-14; Board Opinion at 7.) He testified that attempting to lift something heavy was painful, and that he had been released to work with a lifting limit of 45 pounds for his right hand and that he was working at a job within that restriction. (7/6/12 H.T. at 16, 20; Board Opinion at 7.)
At a hearing held on February 7, 2013, Claimant introduced into evidence an operative report from the Apple Hill Surgical Center regarding Claimant's March 15, 2012 surgical procedure to fuse the IP joint of his right thumb. (WCJ Decision, F.F. ¶ 18; 2/7/13 Hearing Transcript (2/7/13 H.T.)) The report was prepared by Dr. John V. Ingari, who performed the surgery. (Claimant's Exhibit C-3.) At this hearing, Claimant's counsel indicated that he would not be providing a medical opinion because it was unnecessary; he asserted that it was a factual issue as to whether there was a fusion of Claimant's thumb, and the operative report established that Claimant had undergone the fusion. (2/7/13 H.T. at 17-19.)
On July 25, 2013, the WCJ issued its order denying and dismissing the Claim Petition. The WCJ concluded that Claimant "has failed to sustain his burden of proving that he is owed additional wage loss benefits, healing period benefits, or specific loss benefits for the amputation of his index finger. Furthermore, the Claimant has failed to sustain his burden of proving that the surgical fusion in March of 2012 is permanent." (WCJ Decision, Conclusion of Law ¶2.) The WCJ found that although there was no dispute that Claimant had an operation in March, 2012 to fuse his right thumb, he failed to present any evidence that the fusion was permanent. The WCJ stated:
The March 15, 2012 operative report indicates that the pre-operative diagnosis was end-stage post-traumatic arthritis of the right thumb IP joint status post right thumb IP joint arthrodesis. I am taking judicial notice that arthrodesis is "the surgical fixation of a joint by fusion of the joint surfaces." The operative report confirms that the IP joint was identified and the proximal base of the distal phalanx and the distal aspect of the proximal phalanx of the right thumb was rongeured to make an even parallel surface fusion. Once good parallel surfaces were created, a K-wire was driven from the proximal aspect of the distal phalanx through the distal end of the thumb exiting approximately 2-3 mm volar to the hyponicular fold. The April 25, 2012 x-ray report, from York Hospital, confirms that the acutrak screw is identified transfixing the interphalangeal joint of the right thumb. The impression, from the April 25, 2012 York Hospital x-ray report, is surgical changes of the IP joint of the right thumb. I find that the Claimant has not sustained his burden of proving that he suffered a specific loss or a loss of the thumb for all practical intents and purposes because he failed to present medical records or a medical opinion that his fusion was permanent. Only a permanent fusion of the interphalangeal, or distal, joint of the thumb is considered the loss of the thumb. Shrout v. Workers' Compensation Appeal Board (Cyclops Corporation), 537 A.2d 83 (Pa. Cmwlth. 1988).(WCJ Decision, F.F. ¶25.)
The WCJ also found, with regard to the payment of temporary total disability benefits, the healing period for the index finger, and the specific loss payment for the index finger, that Claimant was properly paid. The WCJ stated that Employer properly took a credit for the six week healing period since Claimant's total disability (paid from the date of the injury through the date he returned to work) exceeded the six week healing period. (WCJ Decision, F.F. ¶ 24.) Claimant appealed, and on August 26, 2014, the Board affirmed. This appeal followed.
Our review is limited to determining whether an error of law was committed, whether the WCJ's necessary findings of fact are supported by substantial evidence or whether Board procedures or constitutional rights were violated. Furnari v. Workers' Compensation Appeal Board (Temple Inland), 90 A.3d 53, 58 n.2 (Pa. Cmwlth. 2014).
Claimant argues, first, that he is entitled to receive healing period benefits for the loss of this right index finger. He asserts that the total disability lost wage benefits paid him were for disability caused not only by the loss of his right index finger but also by the injury to his right thumb, and the total disability lost wage benefits cannot therefore be used as a credit against healing benefits owed.
Claimant cites as authority this Court's decision in Sharon Steel Corporation v. Workers' Compensation Appeal Baord (Frantz), 790 A.2d 1084 (Pa. Cmwlth. 2002). However, that case did not establish any entitlement to healing period benefits where a claimant begins to collect specific loss benefits after a period of total disability from injuries separate and distinct from the specific loss. Rather, in Sharon Steel, we held that a claimant who had sustained, in one accident, separate and distinct injuries from the specific loss injury, was entitled to receive concurrent partial disability and specific loss benefits; however, a claimant is only entitled to receive specific loss benefits after the entitlement to total disability benefits ceases. 790 A.2d at 1089.
Here, we find no error in the Board's determination that Claimant is not owed healing period benefits. Claimant was paid temporary total disability benefits from the date of his injury through November 8, 2011, when he returned to work at no loss of wages. Pursuant to the schedule set forth in Section 306 of the Pennsylvania Workers' Compensation Act (Act), he was paid 50 weeks of specific loss benefits for the loss of his right index finger, on November 11, 2011. Section 306(c)(25) of the Act authorizes compensation for a healing period and requires that:
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513. Section 306(c)(10) states, in pertinent part:
For all disability resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows:
- - -
(10) For the loss of a first finger, commonly called index finger, sixty-six and two-thirds per centum of wages during fifty weeks.
in addition to payments for permanent injuries of the classes specified, any period of disability necessary and required as a healing period shall be compensated in accordance with the provisions of this subsection. The healing period shall end (i) when the claimant returns to employment without impairment in earnings, or (ii) on the last day of the period specified in the following table, whichever is earlier:77 P.S. § 513(c) (25). Here, no healing period was payable to Claimant because his period of disability extended from August 17, 2011 to November 11, 2011, a period longer than six weeks. Further, under Section 306(d) of the Act, Claimant is not entitled to receive compensation for the healing period provided in Section 306(c)(25) of the Act. Section 306(d) provides:
...
For the loss of a thumb or any part thereof, ten weeks.
For the loss of any other finger or any part thereof, six weeks.
...
Where, at the time of the injury the employee receives other injuries, separate from [those] which result in permanent injuries enumerated in clause (c) of this section, the number of weeks for which compensation is specified for the permanent injuries shall begin at the end of the period of temporary total disability which results from the other separate injuries, but in that event the employee shall not receive compensation provided in clause (c) of this section for the specific healing period...77 P.S. § 513(d).
Claimant also argues that the WCJ erred in denying him specific loss benefits for loss of his right thumb; he asserts that he underwent successful fusion surgery of the IP joint which, by its very nature, renders that joint immoveable and therefore should be considered the permanent loss of the first phalange of the thumb, and thus the loss of the thumb pursuant to Section 306(c)(14) of the Act. Section 306(c)(14) of the Act specifies that "[t]he loss of the first phalange of the thumb shall be considered the loss of the thumb...." 77 P.S. § 513(14). Claimant relies on this Court's decision in Shrout v. Workmen's Compensation Appeal Board (Cyclops Corporation), 537 A.2d 83 (Pa. Cmwlth. 1988), in which, he asserts, we held that where the IP joint of the thumb is rendered immoveable permanently, it is equivalent to the loss of the first phalange of the thumb.
In Shrout, which did not involve a fusion, the medical experts for both claimant and employer agreed that the claimant's IP joint was permanently bent at thirty degrees and that he could not actively move the joint; however, the employer's medical expert opined that the claimant still had range of motion in the joints that connect the thumb to the palm and wrist, so had not lost the use of his thumb for all intents and purposes and had not therefore suffered a loss for compensable purposes; the Board agreed. 537 A.2d at 83-84. On appeal, our Court reversed the Board, opining that the legislature specifically provided that the loss of the first phalange of the thumb shall be considered the loss of the thumb, and where both experts had testified that the claimant's joint was permanently bent and could not be moved, a compensable loss of the thumb had been established. Id. at 84.
Here, Claimant submitted an operative report that summarizes the fusion procedure performed; no expert testimony or opinion whatsoever was offered regarding permanency or the effect of the procedure on Claimant's ability to use his thumb. Claimant points to his testimony that he could no longer move his thumb to further establish the success of the IP fusion; however, Claimant's testimony alone is insufficient to prove that he suffered a specific loss or lost the use of his thumb for all intents and purposes. Although a claimant's testimony is relevant as "further support" for a finding of specific loss, see Bakula v. Workmen's Compensation Appeal Board (Budd Company), 577 A.2d 961, 964 (Pa. Cmwlth. 1990), it is well-established that a claimant must present medical evidence in order to prove that his loss of use is permanent and for all practical intents and purposes. Jacobi v. Workers' Compensation Appeal Board (Wawa, Inc.), 942 A.2d 263, 269 (Pa. Cmwlth. 2008).
The WCJ properly found that Claimant failed to present sufficient medical evidence to meet his burden of proof, and is not entitled to a specific loss award for his right thumb. Accordingly, we affirm.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 23rd day of April, 2015, the order of the Workers' Compensation Appeal Board in the above matter is AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge
77 P.S. § 513(c)(10).