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CONTAINER CORPORATION AMERICA v. COMMONWEALTH PENNSYLVANIA (06/01/81)

decided: June 1, 1981.

CONTAINER CORPORATION OF AMERICA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND RALPH VAUGHN, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ralph Vaughn v. Container Corporation of America, No. A-78145.

COUNSEL

Thomas B. Kenworthy, Morgan, Lewis & Bockius, for petitioner.

Gerald J. Haas, for respondent, Ralph Vaughn.

Judges Mencer, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Mencer. Judge Wilkinson, Jr., did not participate in the decision in this case.

Author: Mencer

[ 59 Pa. Commw. Page 368]

This is an appeal by the Container Corporation of America (petitioner) from an order of the Workmen's Compensation Appeal Board (Board). The Board's

[ 59 Pa. Commw. Page 369]

    order affirmed the decision of a referee which dismissed the petitioner's October 5, 1977 petition for termination of disability compensation benefits being paid to Ralph Vaughn (respondent). We affirm.

The facts pertaining to the respondent's work injury are not in dispute. On April 27, 1977 and in the course of his employment, the respondent was backing up a 60-foot tractor-trailer. A front wheel of the tractor struck a concrete embankment, causing the steering wheel to spin unexpectedly. The fifth finger of the respondent's left hand was struck by a spoke of the steering wheel, and he suffered a fracture of the base of the proximal phalanx of that hand. Since May 26, 1977, the respondent has been receiving disability compensation for the injury, at a rate of $199 per week, pursuant to a notice of compensation payable.

At hearings before the referee on the petition, the issue concerned the condition of the respondent's left hand, the extent to which his injury had healed, and his ability to resume his prior employment as a tractor-trailer driver. At a hearing held on January 24, 1978, the petitioner offered the testimony of Dr. John L. Sbarbaro. The respondent testified on his own behalf at a hearing held on September 12, 1978.

Dr. Sbarbaro testified that the respondent had a 45-degree flexion contracture of the proximal interphalangeal joint of the left fifth finger which allowed 30 degrees of motion beyond that point. He stated that the respondent's left fifth finger could not straighten out completely and was only able to come up to 45 degrees and flex down to 85 degrees. The doctor testified that the respondent, in addition to lacking the last 45 degrees of full extension, suffered a restriction of movement in the second, third, and fourth fingers of his left hand which affected the strength of his grip.

[ 59 Pa. Commw. Page 370]

In evaluating these restrictions of movement and grip strength, however, Dr. Sbarbaro testified that they did not constitute any form of functional impairment. Moreover, he questioned whether they caused the respondent any pain at all. He opined that the lack of finger flexion was so minimal as to be considered negligible and probably within the limits of normalcy. He testified that the respondent suffered from no functional disability and was fully capable of resuming his prior employment.

The respondent contradicted that medical opinion. He testified that he could neither make a fist nor drive a loaded tractor-trailer because it required a firm grip and the use of both hands. The respondent testified that he had experienced no pain prior to his accident but was now unable to perform simple household chores. He stated that he experienced pain in his left hand and arm each night and in inclement weather, for which he regularly took prescribed medication, applied salve, and bathed his left hand.

On October 5, 1979, the referee made findings of fact and conclusions of law and ordered the petition for termination dismissed. Factually, the referee found, inter alia, the following:

4. The referee rejects Dr. Sbarbaro's opinion that Claimant's injured finger had healed sufficiently enough to permit Claimant to return to driving a 60 foot tractor trailer since he predicated that opinion upon the mistaken fact that all such vehicles are equipped with power steering and are as easy to drive as a power steering equipped family car. The referee also rejects Dr. ...


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