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Pocono Mt. Sch. Dist. v. Workers' Comp. Appeal Bd. (Easterling)

Commonwealth Court of Pennsylvania

April 10, 2015

Pocono Mountain School District and Inservco Insurance Services, Petitioners
v.
Workers' Compensation Appeal Board (Easterling), Respondent; Rick Easterling, Petitioner
v.
Workers' Compensation Appeal Board (Pocono Mountain School District), Respondent

Submitted October 3, 2014

Page 910

Janet Jackson, Stroudsburg, for petitioner.

Ellen J. Kaska, Allentown, for respondents.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ANNE E. COVEY, Judge.

OPINION

Page 911

ANNE E. COVEY, Judge

Pocono Mountain School District and Inservco Insurance Services (collectively, Employer) petition this Court to review the Workers' Compensation Appeal Board's (Board) March 21, 2014 order (Board's order) affirming the Workers' Compensation Judge's (WCJ) decision granting in part Rick Easterling's (Claimant) petition to review compensation benefits (Review Petition) relative to the specific loss of his left hand. Claimant also petitions this Court to review the Board's order reversing the WCJ's dismissal of Employer's petition for modification of compensation benefits (Modification Petition), thus granting Employer an offset for Claimant's Social Security (old age) benefits.[1]

Page 912

Essentially, there are two issues before this Court: (1) whether the Board erred by affirming the WCJ's determination that Claimant sustained a specific loss of his left hand; and, (2) whether the Board erred by reversing the WCJ's conclusion that Employer is not entitled to a Social Security benefit offset. Upon review, we affirm in part and reverse in part.

Claimant suffered a work-related injury on January 20, 2010 when he slipped and fell on ice, and struck his head, left shoulder and arm at work. Employer issued a notice of temporary compensation payable (NTCP), and began paying Claimant total disability benefits. The NTCP was converted to a notice of compensation payable (NCP) on April 24, 2010. Claimant filed a Review Petition to amend the NCP to include complex regional pain syndrome (CRPS) of the upper left extremity, left upper extremity cubital tunnel syndrome and loss of use of his left hand.[2] Employer denied the allegations in the Review Petition. At a May 12, 2011 hearing, Claimant amended his Review Petition to include a head injury. The parties stipulated that Claimant's work injury included CRPS of the upper left extremity and status post left ulnar nerve release, but Employer denied Claimant's petition for a head injury and continued to deny his specific loss claim.

Claimant was 62 years old on the day of his injury. In February 2010, Claimant began receiving Social Security retirement benefits. On June 23, 2011, Employer filed the Modification Petition claiming an offset and credit for the Social Security retirement benefits Claimant received. Claimant filed an answer denying that Employer was entitled to an offset. Additional hearings were held on July 27, 2011 and November 9, 2011.

By September 7, 2012 decision, the WCJ denied the Review Petition as to Claimant's alleged head injury, but granted it relative to the specific loss of Claimant's left hand. The WCJ also denied and dismissed Employer's Modification Petition, concluding that Employer failed to meet its burden of proving its entitlement to credit for Claimant's receipt of Social Security benefits. Employer appealed to the Board. By March 21, 2014 opinion and order, the Board reversed the WCJ's denial of Employer's Modification Petition, but affirmed the WCJ's decision in all other respects. Employer and Claimant filed cross-appeals with this Court.[3]

Employer argues on appeal that the Board erred by affirming the WCJ's determination that Claimant suffered a specific loss of his left hand because it is not supported by substantial evidence. Specifically, Employer claims that the medical expert on whose testimony the WCJ relied stated that Claimant lost the use of his " left upper extremity" for which

Page 913

there is no specific loss provided in the Workers' Compensation Act (Act),[4] that there is no competent medical evidence that Claimant's left hand condition is permanent, and that Claimant's left hand injury was not separate such that he is entitled to both specific loss and total disability benefits. Claimant, however, maintains that the WCJ's finding that Claimant suffered a specific loss of his left hand is well supported by the record.

Under Section 413(a) of the [Act], 77 P.S. § 771, the WCJ may amend the NCP at any time during litigation of any petition if the evidence shows that the injury sustained in the original work incident is different or more expansive than that listed in the NCP. This is known as a 'corrective amendment.' In addition, the NCP can be amended if the claimant files a review petition and proves that another injury subsequently arose as a consequence of the original injury. The party seeking to amend the NCP has the burden of proving that the NCP is materially incorrect.

Harrison v. Workers' Comp. Appeal Bd. (Auto Truck Transp. Corp.), 78 A.3d 699, 703 (Pa. Cmwlth. 2013) (citations and footnote omitted). Here, the NTCP acknowledged that Claimant sustained " left shoulder [and] lumbosacral spine sprains" as a result of his January 20, 2010 fall. Reproduced Record (R.R.) at 1a. Claimant's Review Petition sought to amend that injury description to include, inter alia, " loss of use of the left hand." R.R. at 4a. The WCJ concluded that, based upon the credible evidence offered by orthopedic surgeon Frederick J. Barnes, M.D. (Dr. Barnes), Claimant sustained a specific loss separate and apart from his other work injuries and, thus, Claimant is entitled to 335 weeks of specific loss benefits once his total disability benefits end.[5]

Section 306(c) of the Act authorizes the WCJ to award 335 weeks of benefits for specific loss of a hand. 77 P.S. § 513(1). " 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." Schemmer v. Workers' Comp. Appeal Bd. (U.S. Steel), 833 A.2d 276, 279 n.5 (Pa. Cmwlth. 2003) (emphasis added).

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.

Miller v. Workers' Comp. Appeal Bd. (Wal-Mart), 44 A.3d 726, 728 (Pa. Cmwlth.

Page 914

2012) (emphasis added) (quoting Jacobi v. Workers' Comp. Appeal Bd. (Wawa, Inc.), 942 A.2d 263, 267-68 (Pa. Cmwlth. 2008) (citations omitted)).

It is well established that in matters involving specific loss claims, a claimant who sustains an injury that is compensable under Section 306(c) of the Act, 77 P.S. § 513 (relative to specific loss calculations), is not entitled to compensation beyond that specified in that section even though he may be totally disabled by the injury. The exception to this rule, found in Section 306(d), 77 P.S. § 513, is when a claimant may receive benefits for injuries which are separate and distinct from those which normally flow from the specific loss injury. The Supreme Court in Killian v. Heintz Div. Kelsey Hayes, . . . 468 Pa. 200, 360 A.2d 620 ([Pa.] 1976), set the standard for this determination in stating:
[W]here it is claimed that some other part of the body is affected, it must definitely and positively appear that it is so affected, as a direct result of the permanent injury; the causal connection must be complete, and, further the disability must be separate and distinct from that which normally follows an injury under [Section 306(d)], and must endure beyond the time therein mentioned. There must be a destruction, derangement or deficiency in the organs of the other parts of the body.
Killian, . . . 360 A.2d at 624 (quoting Lente v. Luci, . . . 275 Pa. 217, 119 A. 132, 133 ([Pa.] 1922)) (emphasis added). While injuries that flow from the specific loss injury are considered compensated under specific loss benefits, injuries that are separate and distinct from the specific loss injury are eligible for their own benefits.

Sharon Steel Corp. v. Workers' Comp. Appeal Bd. (Frantz), 790 A.2d 1084, 1088 (Pa. Cmwlth. 2002) (citations and footnote omitted).[6] Thus, " Section 306(d) of the Act permits a claimant to prove that he sustained either disability or specific loss for each separate injury, provided that payment of specific loss benefits is withheld until after all disability benefits are terminated. 77 P.S. § 513." Crews v. Workers' Comp. Appeal Bd. (Ripkin), 767 A.2d 626, 632 (Pa. Cmwlth. 2001).

Claimant testified at the November 9, 2011 hearing that, after his January 20, 2010 fall, he was taken by ambulance to Pocono Medical Center, where he underwent a CAT scan, was treated and released. He began treating with Dr. Barnes on January 22, 2010.

Claimant explained that he has held his left arm at chest level at all times since February 2010 because extending it downward causes pain and shaking. He described for the record that his fingers have been " all crunched up" in a fist, and he cannot spread them ...


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