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decided: March 6, 1979.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of Anthony J. Vovericz v. S & W Metal Products, Inc., No. 72648.


Paul A. Prince, with him Prince & Prince, for appellant.

Sandra S. Christianson, Assistant Attorney General, for appellee, Commonwealth.

Richard A. Bausher, with him Stevens & Lee, P.C., for appellee, S & W Metal Products, Inc.

Judges Crumlish, Jr., Wilkinson, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 41 Pa. Commw. Page 96]

The right hand of Anthony J. Vovericz is affected by cerebral palsy. His left hand has had parts of the index, middle and ring fingers amputated because of an employment-related accident which occurred in September of 1974.

By agreement, his employer's carrier began paying him total disability compensation shortly after the accident.

To extend the period of disability compensation, claimant filed a petition against the Commonwealth's Second Injury Reserve Fund under Section 306.1 of The Pennsylvania Workmen's Compensation Act (Act).*fn1

[ 41 Pa. Commw. Page 97]

Under that section, it is agreed that, for Vovericz to sustain his claim against the Second Injury Reserve Fund, he must prove loss of use of his palsied right hand, and also that the work accident has left him without the use of his left hand. Thus the employer was joined as an additional party.

Aside from cross-examining claimant's witnesses, neither the employer nor the Commonwealth produced any evidence. The only testimony presented at the hearing before the referee was that of claimant himself and two doctors who had examined him, Dr. Morrisey, who testified personally, and Dr. Menkowitz, whose deposition was submitted by stipulation.

The referee found that, although claimant had sustained the loss of his left hand, he had not for all practical intents and purposes lost the use of his right hand. Therefore, the referee dismissed his claim against the Second Injury Reserve Fund. The Workmen's Compensation Appeal Board (Board) affirmed, and claimant appealed to this Court.

The only testimony of record is that of claimant and his witnesses, and they present a consistent picture of the observable facts of the disability in claimant's right hand. This is essentially a case where the referee and the Board chose not to find, on what amounts to given facts, that claimant had lost the use of his right hand. See Adams v. Dunn, 192 Pa. Superior Ct. 319, 162 A.2d 42 (1960). The ultimate finding is in dispute; the facts are not.

[ 41 Pa. Commw. Page 98]

If evidence or testimony is equivocal or contradictory, it is clearly within the referee's domain to determine its weight and credibility; such a determination does not amount to a capricious disregard of the evidence. Warr v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 370, 390 A.2d 899 (1978); Santore v. Workmen's Compensation Appeal Page 98} Board, 37 Pa. Commonwealth Ct. 351, 390 A.2d 878 (1978).

However, our review of the record in this case convinces us that neither contradiction, conflict nor equivocation exist as to the facts of what claimant can and can not do with his right hand. If all of the facts, including the proffered medical opinions, are considered, the conclusion that claimant has lost the use of his right hand for all practical intents and purposes is compelling.

The referee's specific factual findings in regard to the right hand are:

[T]he condition . . . is permanent, . . . causing difficulty in holding a sheet of paper or small coins between his thumb and index finger, diminished sensation, and decreased fine motor coordination; however, claimant does have fairly good control of gross motions . . . can grasp, lift, pinch and hold objects, can button his shirt and can write his name, and pick up a book and paper clips. . . .

As far as they go, these findings have ample support in the evidence and reveal that the only substantial functional difference between what claimant can do with his left hand and what he can do with his right hand is that he has fairly good gross motor control in his right hand and can pinch and hold objects with it.

However, the referee's ultimate finding ignores the unequivocal and uncontradicted testimony of both medical witnesses and claimant himself that his right hand is of virtually no use to him functionally. Regardless of his gross motor control and his ability to pinch and hold an object, it is apparent that the condition in his right hand prevents him from carrying out useful functions with such an object. The ability to move his hand where he desires and to pinch

[ 41 Pa. Commw. Page 99]

    and hold some objects is of little value to him when he undoubtedly can do little or nothing practical with those objects.*fn2

[ 41 Pa. Commw. Page 100]

The significant medical testimony dealing directly with the issue of the loss of use is: (1) Dr. Morrissey's uncontradicted and unequivocal opinion that claimant has, for all practical intents and purposes, lost the use of his right hand;*fn3 (2) the uncontradicted testimony as to the fact that claimant has, at best, much difficulty in performing any mundane task such as using eating utensils and buttoning his shirt; and (3) that what grasping, pinching and lifting ability remains in the right hand is all but negated by his inability to manipulate anything in a practical way.

This Court has consistently followed the leading loss of use case of Curran v. Walter E. Knipe & Sons, Inc., 185 Pa. Superior Ct. 540, 138 A.2d 251 (1958), wherein the court explained that although the "for all practical intents and purposes" test generally requires

[ 41 Pa. Commw. Page 101]

    a "more crippling injury" than the industrial use test, nevertheless:

[I]t is not necessary that the injured member of the claimant be of absolutely no use in order for him to have lost the use of it for all practical intents and purposes.

185 Pa. Superior Ct. at 547, 138 A.2d at 255.

See, e.g., Wall v. Workmen's Compensation Appeal Board, 12 Pa. Commonwealth Ct. 12, 315 A.2d 656 (1974). (Referee could properly find permanent loss of use of the entire hand even though claimant could still write, eat, clothe himself and stack boxes using that hand.)

Thus, while the evidence presented (and certainly Dr. Menkowitz's testimony) may allow a conclusion that claimant retains some actions in his right hand, only a capricious disregard of competent evidence can yield the conclusion that claimant has not established a loss of usefulness for all practical intents and purposes.

Claimant has sought reimbursement of attorney's fees and witness costs against the employer.

He contends that he should have been awarded attorney's fees under Section 440 of the Act, 77 P.S. § 996;*fn4 i.e., that the Board and the referee erroneously concluded that the employer had a reasonable basis for contesting the loss of use of the left hand. See Ball v. Workmen's Compensation Appeal Board, 19 Pa. Commonwealth Ct. 157, 340 A.2d 610 (1975). For several reasons, we do not agree.

Resolution of the reasonable basis for contest issue "depends upon both the facts and the legal issues involved." Poli v. Workmen's Compensation Appeal Board, 34 Pa. Commonwealth Ct. 630, 633, 384 A.2d

[ 41 Pa. Commw. Page 102596]

, 598 (1978). As to the employer, the legal issue here was permanent loss of use of the left hand, not total disability nor loss of three fingers. We are satisfied that Dr. Morrissey conveyed to the employer sufficient doubts as to the permanence of the condition of claimant's entire left hand. Also, since claimant never returned to work, the employer had no firsthand knowledge of claimant's ability to use that hand in employment situations. Therefore, this case does not demonstrate the obvious knowledge of the employer found in Ratchko v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 585, 377 A.2d 1012 (1977).

Even more important, this proceeding from the outset was directed primarily against the Commonwealth's Second Injury Reserve Fund, which at all times was claimant's foremost adversary. The Commonwealth was demanding proof of loss of use of the left hand anyway and therefore the employer was basically an additional party, compulsorily joined. Consequently, the proof as to the loss of use of the left hand was necessary in any event.

The mere fact that employer's only evidence was that which it adduced by cross-examination does not render its basis for contest per se unreasonable. See Ballas v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth Ct. 82, 377 A.2d 1069 (1977).

Unlike attorney's fees, Section 440 contemplates that a prevailing claimant always be awarded a reasonable sum for costs incurred in producing witnesses. Here, the referee concluded that claimant was entitled to a reasonable sum for Dr. Morrissey's testimony. However, we agree that the onus was upon claimant to provide the referee with some indication of what such a reasonable sum would be, and, that not having done so, he cannot now complain because the referee did not improvise a reasonable figure.

[ 41 Pa. Commw. Page 103]

Finally, claimant and the Commonwealth argue the question of whether or not costs can be assessed against the Commonwealth if it is found that claimant should prevail against the Second Injury Reserve Fund.

However, claimant must first be awarded compensation before the issue of costs and attorney's fees arises. See Shannon v. Southwark Metal Manufacturing Co., 27 Pa. Commonwealth Ct. 461, 366 A.2d 963 (1976).

A claimant must be totally disabled to receive compensation under Section 306.1 as well as lose the use of both members. Total disability involves consideration of variables other than those involved in a loss of use case. See Baker v. O. B. Cannon & Sons, Inc., 26 Pa. Commonwealth Ct. 143, 145, 362 A.2d 1150, 1152 (1976). Claimant did present relevant evidence on the issue of his total disability.

Section 306(c) of the Act, 77 P.S. § 513, provides:

(23) Unless the board shall otherwise determine, the loss of both hands or both arms or both feet or both legs or both eyes shall constitute total disability, to be compensated according to the provisions of clause (a) [Section 306(a) of the Act, 77 P.S. § 511].

Thus, although the loss of both hands is presumed to constitute total disability, this section requires that the Board have an opportunity to determine otherwise. Cf. Symons v. National Electric Products, Inc., 414 Pa. 505, 200 A.2d 871 (1964).

We have no previous ruling that the quoted presumption of Section 306(c) stated to be applicable to Section 306(a) compensation, applies also to Section 306.1 Second Injury Reserve Fund issues. However, we see no reason why it should not, and we so hold.

[ 41 Pa. Commw. Page 104]

Because the referee and Board never reached the question of total disability, we remand for a determination of that issue.


And Now, this 6th day of March, 1979, the order of the Workmen's Compensation Appeal Board dated June 16, 1977 dismissing Anthony J. Vovericz's claim against the Second Injury Reserve Fund is set aside, and it is hereby ordered that the record be remanded to the Workmen's Compensation Appeal Board to direct a determination, under Section 306(c) of the Workmen's Compensation Act, of whether the loss of both hands constitutes other than total disability.


Order set aside. Case remanded.

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