Appeal from the Order of the Workmen's Compensation Appeal Board in case of Raymond W. Kender v. Fisher Body Division of GMC, No. A-86647.
P. Ronald Cooper, Reding, Rea & Cooper, P.C., for petitioner.
Fory L. Musser, III, for respondent, Raymond W. Kender.
Judges MacPhail and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.
[ 90 Pa. Commw. Page 423]
Petitioner, the Fisher Body Division of GMC (Employer), appeals the decision of the Workmen's Compensation Appeal Board (Board), affirming the referee's award of compensation under Section 306(c) of the Pennsylvania Workmen's Compensation Act (Act),*fn1 pertaining to compensation for permanent loss of a body part. The referee awarded the claimant, Raymond W. Kender, partial disability, 41 weeks of compensation for permanent loss of the use of one-half of claimant's middle and ring fingers, and directed employer to pay claimant's attorney fees because
[ 90 Pa. Commw. Page 424]
there was no reasonable basis for a contest. The computation of 41 weeks was apparently reached by adding 20 weeks for the permanent loss of use of the middle finger, 15 weeks for the permanent loss of use of the ring finger, and 6 weeks for a healing period. The Board reversed the referee's award of partial disability, ordered that the award of attorney's fees be paid out of claimant's award, and affirmed the award of compensation for specific loss for 41 weeks.
Claimant was injured on July 17, 1982 while at work as a welder operator. The dorsa of the index finger, the middle finger and the ring finger of his left hand were injured. Claimant testified at the hearing before the referee as to the permanent loss of partial use of his fingers. The written report of Dr. Katz, offered by the employer, contained the opinion that claimant had suffered a permanent impairment of function of 30% in his left index finger, 50% in his left middle finger, and 40% in his left ring finger, as a result of the work-related incident.
Employer argues that the permanent loss of use of a finger is not equivalent to a complete loss of a corresponding portion of that finger and that in order to receive compensation for loss of use of an extremity under Section 306(c), he must prove that he has suffered permanent partial loss of use of the injured part of his body for all practical intents and purposes. Claimant argues that the permanent loss of use of one-half of a finger should be compensated at the same rate as the loss of one-half of a finger.
[ 90 Pa. Commw. Page 425]
Our scope of review in cases where the claimant has sustained his burden is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact were supported by substantial evidence. Cox v. Workmen's Compensation Appeal Page 425} Board, 60 Pa. Commonwealth Ct. 59, 430 A.2d 1009 (1981).
The claimant must show that he has suffered a permanent loss of use of the injured member for all practical intents and purposes. The degree of impairment is a question of fact to be determined by the referee. Dally v. Workmen's Compensation Appeal Board, 82 Pa. Commonwealth Ct. 291, 474 A.2d 1215 (1984). However, as we recently stated in Burkey v. Workmen's Compensation Appeal Board, 80 Pa. Commonwealth Ct. 540, 471 A.2d 1325 (1984), the permanent loss of the partial use of a bodily part is not equivalent to the loss of the same portion of that bodily part in order to determine whether the claimant is entitled to compensation. We found that the claimant's permanent loss of partial use of his thumb was not the same as, or equivalent to, the actual loss of that part of the ...