Summary
finding of loss of use is not a finding that injured member has absolutely no use.
Summary of this case from Burkey v. W.C.A.BOpinion
Argued October 28, 1976
December 22, 1976.
Workmen's compensation — Scope of appellate review — Findings of fact — Substantial evidence — Error of law — Violation of constitutional rights — Credibility — Conflicting testimony — The Pennsylvania Workmen's Compensation Act, Act 1915, June 22, P.L. 736 — Liberal construction — Loss of use — Index finger.
1. In a workmen's compensation case where the party with the burden of proof prevailed below, review by the Commonwealth Court of Pennsylvania is to determine whether necessary findings of fact are unsupported by substantial evidence, an error of law was committed or constitutional rights were violated, leaving questions of credibility and the resolution of conflicting testimony to the fact finder. [20]
2. Construing The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 liberally to favor the employe, compensation for permanent loss of use of a body member should be awarded when use is lost for all practical intents and purposes although some usefulness may remain. [21]
3. Evidence that sensation and some movement is lost in an employe's index finger preventing its use in writing or in the employe's work as a machinist supports an award for permanent loss of use of that digit. [21-22]
Argued October 28, 1976, before Judges CRUMLISH, JR., KRAMER and MENCER, sitting as a panel of three.
Appeal, No. 500 C.D. 1976, from the Order of the Workmen's Compensation Appeal Board in case of Raymond E. Mullen v. United States Steel Corporation, No. A-70613.
Petition with the Department of Labor and Industry for workmen's compensation benefits. Benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Award affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Richard F. Lerach, for appellant. Richard G. Spagnolli, with him McArdle, Henderson, Caroselli, Spagnolli Beachler, and James N. Diefenderfer, for appellees.
Raymond E. Mullen (claimant) was injured while working as a machinist for United States Steel Corporation (appellant) on March 29, 1973, when he sustained a deep laceration of the proximal interphalangeal joint (middle knuckle) of his right index finger. In response to his petition for compensation under Section 306(c) of The Pennsylvania Workmen's Compensation Act (Act), several hearings were held, after which the referee awarded claimant compensation for the loss of use of his finger. Appellant's appeal to the Workmen's Compensation Appeal Board (Board) resulted in the affirmation of the award. Appellant now seeks review by this Court, raising as the sole issue for our consideration the propriety of the finding of loss of use.
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 513, paragraph (24) of which states in pertinent part: "Permanent loss of the use of a . . . finger . . . shall be considered as the equivalent of the loss of such . . . finger. . . ." Paragraph (10) provides compensation "[f]or the loss of a first finger, commonly called index finger, sixty-six and two-thirds per centum of wages during fifty weeks."
This Court's scope of review in a workmen's compensation case where the party with the burden of proof prevailed below is limited to a determination of whether the referee's necessary findings of fact are supported by substantial competent evidence and whether errors of law were committed or constitutional rights were violated. Workmen's Compensation Appeal Board v. Auto Express, Inc., 21 Pa. Commw. 559, 346 A.2d 829 (1975). Questions of credibility and resolution of conflicting testimony are for the referee, not the reviewing court.
This Court is mindful that a finding of loss of use under Section 306(c) is not a finding that the injured member has absolutely no use. Curran v. Walter E. Knipe Sons, Inc., 185 Pa. Super. 540, 138 A.2d 251 (1958). Rather, it is a finding of loss of use for all practical intents and purposes within the liberally construed permanent-loss provision of the Act. Hartlieb v. Workmen's Compensation Appeal Board, 12 Pa. Commw. 118, 314 A.2d 519 (1974). Indeed, such a finding should be made in light of this Court's prior pronouncement that Section 306(c) should be so construed that every reasonable intendment of its express language should be upheld in behalf of the employee. Lebanon Steel Foundry v. Workmen's Compensation Appeal Board, 12 Pa. Commw. 530, 317 A.2d 315 (1974); Sims v. American Can Company, 6 Pa. Commw. 423, 296 A.2d 290 (1972).
In the instant case, we have no difficulty upholding the referee's finding that claimant had proved loss of use for all practical intents and purposes. Claimant's expert, Dr. Gerald W. Pifer, convincingly opined that claimant had sustained such loss because he had lost most of the sensation on the thumb side of the index finger, the digit's most important sensory area, and because he had lost some movement of the member. It also appeared that after the accident the claimant used his finger neither in the precision-tool work required of machinists nor in other more common activities requiring use of the index finger qua index finger. While appellant offered expert testimony which challenged Dr. Pifer's opinion of loss of use, the testimony did not dispute the facts upon which the opinion was based. We do not consider it error to give significant weight to Dr. Pifer's testimony and accordingly we hold that the referee's finding of fact was based on substantial competent evidence.
For example, both the claimant and Dr. Pifer testified that the injured finger was not used in writing with a pen or pencil. In this and other activities, claimant "worked around" the finger by using another finger. Cf. Verna v. Stabler, 204 Pa. Super. 87, 203 A.2d 578 (1964), and Conley v. Allegheny County, 131 Pa. Super. 236, 200 A. 287 (1938), where the injured member had been in constant use.
ORDER
AND NOW, this 22nd day of December, 1976, the appeal of United States Steel Corporation is hereby dismissed, and the order of the Workmen's Compensation Appeal Board dated March 4, 1976 is affirmed. Accordingly, it is ordered that judgment be entered in favor of Raymond E. Mullen and against United States Steel Corporation in the amount of $100 per week, beginning March 30, 1973 and continuing for a period of 50 weeks, in the total sum of $5,000, together with interest at the rate of 10 percent per annum on deferred payments of compensation from the date due to the date paid, all within the terms and limits of The Pennsylvania Workmen's Compensation Act.