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Susan Miller v. Workers‟ Compensation Appeal Board (Wal-Mart

May 25, 2012

SUSAN MILLER, PETITIONER
v.
WORKERS‟ COMPENSATION APPEAL BOARD (WAL-MART), RESPONDENT



The opinion of the court was delivered by: James Gardner Colins, Senior Judge

Submitted: March 16, 2012

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY SENIOR JUDGE COLINS

Susan Miller (Claimant) petitions for review from an order of the Workers‟ Compensation Appeal Board (Board) that affirmed the Workers‟ Compensation Judge‟s (WCJ) denial of her Claim Petition against Wal-Mart (Employer). Claimant suffered a work-related injury and claims the specific loss of her left arm pursuant to Section 306(c) of the Workers‟ Compensation Act (Act).*fn1 On appeal to this Court, Claimant asserts that the WCJ erred when he found as a matter of law that Claimant failed to meet her burden of proving a specific loss. Although we find that the WCJ misstated the legal standard for determining whether a claimant has suffered the specific loss of a body part, we affirm the order denying benefits.*fn2

I. Background

Claimant sustained an injury to her left arm and a fracture of her left clavicle on December 20, 2005, which Employer accepted as a work-related injury in a Notice of Compensation Payable on December 30, 2005. Claimant initially received temporary total disability benefits based on her average weekly wages from Employer and from concurrent employment at a diner. Pursuant to a June 1, 2009 stipulation, approved by the WCJ, the parties agreed that Claimant will continue to receive partial benefits, so long as her earnings are less than her average weekly wage and the loss continues to be attributable to the work injury. (June 1, 2009 Stipulation at ¶7, Reproduced Record (R.R.) at 17a.) The parties stipulated that Claimant‟s benefits will continue until suspended, modified, or terminated in accordance with the Act. (Id.) By its terms, the parties‟ stipulation has no effect on the instant claim petition, and the ruling on Claimant‟s petition alleging a specific loss has no effect on the parties‟ agreement that she suffers from a partial disability.

The parties stipulated that Claimant‟s work-related injury is a "left spiral humeral fracture post-operative, left shoulder adhesive capsulitis and weakness, and radial nerve palsy." (Id. at ¶1; R.R. at 16a.) Her injury has required two surgeries, one in May 10, 2006, to insert a rod and 15 bolts into her left arm from the shoulder down to the elbow, and a second on August 4, 2009, to remove the bolts. At the time of the injury, Claimant worked for Employer as a claims manager and was responsible for handling merchandise returns, which included lifting the merchandise. Following her injury, Employer moved her to the door greeter position and subsequently moved her to the dressing room area, where she spends most of her time operating a telephone switchboard. Claimant has not been able to return to her second job. Claimant has never been released to return to full-duty work.

Claimant filed the instant claim petition on August 12, 2008, alleging a specific loss of her left arm. In support of her petition, Claimant testified at three hearings conducted on October 6, 2008, June 1, 2009, and October 14, 2009, and she presented the deposition testimony of Dr. Peter J. Baddick, M.D., and Dr. Robert W. Mauthe, M.D. Employer presented the hearing testimony of three employees, Janelle Regal, Amy Duffy, and Sherry Thompson, and the deposition testimony of Dr. William R. Prebola, M.D. Employer also submitted a short surveillance video of Claimant, filmed on June 16, 2009, and June 19, 2009.

The WCJ issued his decision on September 3, 2010, ruling in favor of Employer on the grounds that Claimant failed to meet her burden of establishing a specific loss and that the loss was permanent. The Board affirmed the WCJ‟s decision and Claimant appealed to this Court.

We reviewed the principles regarding specific loss benefits in Jacobi v. Workers' Compensation Appeal Board (Wawa, Inc.), 942 A.2d 263 (Pa. Cmwlth. 2008). "A specific loss is either (1) the loss of a body part by amputation or (2) the permanent loss of use of an injured body part for all practical intents and purposes." Id. at 264 n.1. We continued:

When a claimant alleges that his injury has resolved into a specific loss, he has the burden of proving that he has permanently lost the use of his injured body part for all practical intents and purposes. A specific loss requires more than just limitations upon an injured worker‟s occupational activities; a loss of use for all practical intents and purposes requires a more crippling injury than one that results in a loss of use for occupational purposes. However, it is not necessary that the injured body part be one hundred percent useless in order for the loss of use to qualify as being for all practical intents and purposes. Whether a claimant has lost the use of a body part, and the extent of that loss of use, is a question of fact for the WCJ. Whether the loss is for all practical intents and purposes is a question of law.

Id. at 267-268 (citations omitted).

We noted that it is not clear from the statute or our cases what specific type or quantum of evidence will be sufficient to meet the claimant‟s burden of establishing that a specific loss is permanent and for all intents and purposes. Id. at 269; see also Bakula v. Workmen's Compensation Appeal Board (Budd Co.), 577 A.2d 961, 963-64 (Pa. Cmwlth. 1990) (noting that although "the case law is not clear as to what type of evidence is required and how strong that evidence must be" to establish a specific loss, the issue of the extent of the loss is a question of fact for the referee). We held that a claimant‟s testimony and the WCJ‟s observations are relevant and can be considered "as further support" of a finding of specific loss, but competent medical evidence must be presented before "further support" in the form of a claimant‟s testimony can be considered. Jacobi, 942 A.2d at 269. Stated another way, a claimant cannot rely solely on her own testimony and must present medical evidence to support a specific loss claim. Id.

II. Summary of the Evidence

The WCJ issued a 32-page decision with 97 findings of fact and credibility determinations. Regarding the medical evidence, the WCJ found credible and persuasive the testimony of Employer‟s medical expert, Dr. Prebola, who opined that although Claimant suffers from a partial disability, she did not suffer a specific loss of her left arm for all intents and purposes. (WCJ Decision, Findings of Fact (F.F.)

¶¶47-50, 93; Prebola Dep. at 15, 24, R.R. at 375a, 377a.) The WCJ identified each specific part of Dr. Prebola‟s testimony that he found credible, and, where that testimony conflicted with another doctor‟s testimony, the WCJ explained why he found Dr. Prebola‟s more persuasive. (See, e.g., F.F.

¶¶41, 50.) Dr. Prebola conducted an independent medical exam (IME) on March 18, 2009. Regarding Claimant‟s left shoulder, he found that she had 90 degrees of abduction (moving the arm up to the side away from the body) and 80 degrees of flexion (moving the arm upward to the front of the body), whereas 170 degrees is normal. (Prebola Dep. at 15, R.R. at 375a.) He found she retained 50 percent range of motion of the shoulder, but found that her left elbow, hand, and digits, and the range of movement in her wrist were normal. (Prebola Dep. at 15, 24-25, R.R. at 375a, 377a.) He concluded that Claimant has a partial disability in her left arm:

She is functional -- functioning or functionally using her left arm, which is the involved arm, from the shoulder down. So in my opinion, she does not have total loss of use of the left arm. She has impairment with the left arm. It‟s not total. It‟s partial. She has disability in regards to the left arm. It‟s not total. It is partial. So we‟re not dealing with someone who got their arm and hand caught in a meat grinder and suffered multilevel trauma, multilevel musculoskeletal involvement, and multilevel ...


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