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JAMES SHROUT v. WORKMEN'S COMPENSATION APPEAL BOARD (CYCLOPS CORPORATION) (02/08/88)

decided: February 8, 1988.

JAMES SHROUT, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CYCLOPS CORPORATION), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of James Shrout v. Cyclops Corporation, No. A-90651.

COUNSEL

Samuel S. Blaufeld, Blaufeld & Schiller, for petitioner.

Stanley G. Berlin, Plate, Shapira, Hutzelman, Berlin, May, Walsh and Brabender, for respondents, Cyclops Corporation.

Judges Barry and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry. Dissenting Opinion by Judge Palladino.

Author: Barry

[ 113 Pa. Commw. Page 314]

James Shrout, the claimant, appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed the decision of the referee denying claimant benefits for the loss of use of his thumb for all practical intents and purposes. Section 306(c) of the Pennsylvania Workmen's Compensation Appeal Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513 (Supp. 1987).

On October 21, 1983, the claimant was injured while working for the Cyclops Corporation when his thumb was caught in a grinding machine. He collected benefits for approximately four months until his retirement, at which time he signed a final receipt. In August of 1984 he filed a petition to set aside the final receipt, alleging that he had lost the use of his thumb for all practical intents and purposes. Both the claimant and the employer presented medical experts. Both experts agreed that the interphalangeal (or distal) joint of the right thumb was permanently bent at thirty degrees and that the claimant could not actively move that joint. Dr. Basil Marryshow, claimant's expert, opined that the claimant had lost the use of his right thumb for all intents and purposes. Dr. David Mir, the employer's expert, testified that despite the problem, claimant could

[ 113 Pa. Commw. Page 315]

    still do a number of tasks, such as use a hammer, dress himself and fasten buttons using the right hand. Dr. Mir testified that he did not believe the claimant had lost the use of his right thumb. At the hearing, the referee observed the claimant pick up a coin and pick up a pen and write his name, both tasks being done with the right hand. The referee denied claimant's petition to set aside the final receipt. On appeal, the Board affirmed and this appeal followed.

Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed and whether all necessary factual findings are supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). The claimant contends that the referee and the Board committed an error of law by applying an incorrect legal standard.

Section 306(c) of the Act specifically provides, "The loss of the first phalange of the thumb shall be considered the loss of the thumb. The loss of a substantial part of the first phalange of the thumb shall be considered the loss of one-half of the thumb." 77 P.S. § 513(14) (Supp. 1987). A major point of disagreement existed between the medical experts concerning what constituted the thumb. Dr. Marryshow testified that the thumb had only one joint, the interphalangeal joint. Dr. Mir, on the other hand, testified that the thumb actually begins at the wrist. Both doctors agreed that claimant had no limitations on the range of motion in the joints which connect the thumb to both the palm of the hand and the wrist. Because of this motion in these two joints, the referee accepted Dr. Mir's testimony that the claimant had not lost the use of his thumb for all practical intents and purposes.

We need not be drawn into this controversy between the medical experts, as the ...


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