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THOMAS OLSZEWSKI v. WORKMEN'S COMPENSATION APPEAL BOARD (MCGRAW EDISON COMPANY) (08/31/88)

decided: August 31, 1988.

THOMAS OLSZEWSKI, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (MCGRAW EDISON COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Thomas Olszewski v. McGraw-Edison Company, No. A-91161.

COUNSEL

Leonard P. Kane, with him, Michael E. Relich, Fried, Kane, Walters & Zuschlag, for petitioner.

Daniel J. Iler, Ceisler, Richman, Sweet, for respondent.

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

Author: Doyle

[ 119 Pa. Commw. Page 226]

Before this Court is the appeal of Thomas Olszewski (Claimant) from the order of the Workmen's Compensation Appeal Board (Board) reversing the order of the referee which granted Claimant compensation for the loss of one-half of his left little finger under Section 306(c) of the Pennsylvania Workmen's Compensation Act*fn1 (Act). We affirm the Board's denial of specific loss benefits.

Claimant sustained a work-related injury to his left little finger while operating a band saw in the course of his employment for McGraw-Edison Company (Employer). The resulting laceration injury to his little finger caused Claimant to miss work for a period of several weeks, for which he received temporary total disability payments under the Act. Upon his return to work, he received temporary partial disability payments.

Subsequently, Claimant filed a reinstatement petition alleging that the residual disability in his little finger had resolved itself into a scheduled specific loss under the Act. In response, Employer filed a timely answer denying that the residual impairment in the little finger constituted a permanent loss of one-half of the finger. At a hearing before the referee, both sides submitted medical evidence, and the referee found the medical report of Claimant's expert, Basil D. Marryshow, M.D., to be more credible. Thus, the referee accepted Claimant's doctor's clinical observations that "Claimant has limitation of flexion in his MP joint, pain upon motion of that joint and a moderate numbness of

[ 119 Pa. Commw. Page 227]

    the dorsal aspect of that finger." On the basis of Dr. Marryshow's diagnosis, the referee concluded that "Claimant has met his burden of proof in establishing that he has sustained the permanent loss of use of one-half of his left little (4th) finger, for all practical intents and purposes within the meaning of 306(c) of the Act. . . ."

The Board, however, reversed the referee stating:

We have likewise reviewed the medical report of Dr. Marryshow dated 4/17/85. The doctor does state, in the 4/17/85 report, that in his medical opinion Claimant 'has indeed lost the use of one-half of his little finger for all practical intents and purposes.' However, the detail of the report belies that conclusion at worst, and at best it simply does not support it.

Opinion of Board at 4. The Board further concluded that not only did Dr. Marryshow's report fail to support a finding of a loss of use for all practical intents and purposes, but, in addition, the referee made an error of law by failing to apply the appropriate legal standard as set forth in our decision in Burkey v. Workmen's Compensation Appeal Board (North American Rockwell), 80 Pa. Commonwealth Ct. 540, 471 A.2d 1325 (1984). The instant appeal followed.

In the proceedings before the referee, Claimant, as the party seeking to establish a specific loss in a workmen's compensation case, had the burden to show that he suffered permanent loss of use to the injured part of his body for all practical intents and purposes. Dally v. Workmen's Compensation Appeal Board (Pullman Standard), 82 Pa. Commonwealth Ct. 291, 474 A.2d 1215 (1984). The scope of review of the Board in a workmen's compensation proceeding is limited to a determination of whether the findings of the referee are supported by substantial evidence in the record, an error

[ 119 Pa. Commw. Page 228]

    of law was committed, or any constitutional rights were violated. McGartland v. Ampco-Pittsburgh Corp., 489 Pa. 205, 413 A.2d 1086 (1980). In our review of a decision by the Board, this Court is required by its scope of review to affirm the Board unless necessary findings are unsupported by substantial evidence, an error of law was committed or a constitutional right of the claimant was violated. Rettinger v. Workmen's Compensation Appeal Board (American Can Co.), 103 Pa. Commonwealth Ct. 595, 520 A.2d 1252 (1987).

The sole issue presented in this matter is whether, under Sections 306(c)(16) and (24) of the Act, the permanent loss of some functional use of an entire finger is equivalent to the loss of use of one-half the finger for all practical intents and purposes. We begin our analysis by setting forth Sections 306(c)(13)(15)(16) and (24) in relevant part:

(13) For the loss of a fourth finger, commonly called little finger, sixty-six and two-thirds per centum of ...


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