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12/15/97 LOUIS F. RICHARDSON v. WORKERS'

December 15, 1997

LOUIS F. RICHARDSON, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (AMERICAN SURFPAK), RESPONDENT



Appealed From No. A95-1244. State Agency Workers' Compensation Appeal Board.

Before: Honorable James Gardner Colins, President Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Senior Judge Jiuliante.

The opinion of the court was delivered by: Jiuliante

OPINION BY SENIOR JUDGE JIULIANTE

FILED: December 15, 1997

Louis F. Richardson (Claimant) petitions for our review of an April 28, 1997 order of the Workers' Compensation Appeal Board (Board) affirming a decision of a Workers' Compensation Judge (WCJ) which granted him specific loss benefits under Section 306(c)(10) of the Workers' Compensation Act (Act). *fn1 We vacate and remand to the Board.

The facts, as found by the WCJ, may be summarized as follows. On August 2, 1990, Claimant sustained a work-related injury while performing his job duties as a field supervisor for American Surfpac Company (Employer) in Pueblo, Colorado. *fn2 He suffered serious injuries to his left hand, including the amputation of his index finger, when the hand was caught in a machine. Although he was unable to return to his pre-injury job duties, Claimant continued working for Employer until being laid off effective October 1, 1990. Claimant has been employed as a bartender since August 1, 1991, earning a lower wage than he did at his pre-injury job.

Claimant filed a claim petition alleging that he had sustained the "complete loss of first finger on left hand, crushed thumb and cut on second finger." (R.R. at 1a.) In its answer, Employer admitted only that Claimant had suffered a complete loss of his index finger. In support of his claim, Claimant presented the testimony of John M. Bomalaski, M.D., who opined the Claimant could not perform certain aspects of his pre-injury occupation. Dr. Bomalaski testified that Claimant's injury included the amputation of the left index finger, decreased sensation in the third (middle) finger with some limitation of motion, Dupuytren's contracture *fn3 of the fourth (ring) finger and fifth (little) finger and limitation of motion of the thumb. He stated that the combined disability of Claimant's left hand was 36%.

Employer presented the medical testimony of William G. Hart, M.D., who was of the opinion that Claimant had a permanent disability rating of 35%. Dr. Hart did not find that Claimant was disabled from performing his pre-injury employment.

The WCJ found both doctors credible, but accepted the testimony of Dr. Bomalaski over that of Dr. Hart. He nonetheless concluded that Claimant's evidence did not establish that he would have been unable to perform his job when only the injuries separate from the loss of the index finger were considered. As found by the WCJ:

14. Dr. Bomalski, however, did not testify with specificity as to the disability aspects resulting from the injuries which were separate and apart from the specific loss of the left index finger. While Dr. Bomalaski's opinions are accepted over that of Dr. Hart, Defendant's expert, the undersigned is not persuaded by Claimant's evidence that he would have been unable to perform the job duties of a superintendent when only such separate injuries are considered.

Based on these findings, the WCJ concluded that Claimant had met his burden of proving that he had sustained a work-related injury which resulted in the specific loss of his left index finger and other separate injuries to the digits of his left hand. The WCJ also concluded, however, that Claimant had not met his burden of proving any period of total disability separate and apart from the specific loss. Accordingly, benefits were awarded only for the specific loss.

Claimant appealed the decision, arguing that the WCJ had erred in imposing on him, rather than Employer, the burden of proving disability other than the specific loss. The Board affirmed the WCJ's determination, concluding that it was Claimant's burden to establish an entitlement to benefits for disability separate and apart from a specific loss. Claimant's appeal of the Board's decision in now before us for review. *fn4

Claimant argues, initially, that the WCJ erred in assigning to him the burden of proving disability separate and apart from the specific loss. He claims that the issue of specific loss was raised by Employer, in order to limit its liability, and that therefore, Employer must prove the additional disability. We do not agree.

An employee who sustains a specific loss compensable under Section 306(c) of the Act is not entitled to additional compensation even though he may be totally disabled by the permanent injury. School District of Philadelphia v. Workmen's Compensation Appeal Board (Pittman), 145 Pa. Commw. 319, 603 A.2d 266 (Pa. Commw.), petition for allowance of appeal denied, 532 Pa. 659, 615 A.2d 1314 (1992). The long-standing exception to this general rule is that when a specific loss injury results in disability which is separate and distinct from that which normally follows such an injury, then benefits for that disability are allowed in addition to specific loss benefits. Lente v. Luci, 275 Pa. 217, 119 A. 132 (1922). In ...


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