J.G. Furniture Division/Burlington v. Workers' Compensation Appeal Board

862 A.2d 689, 2004 Pa. Commw. LEXIS 812

• Court: Commonwealth Court of Pennsylvania
• Decided: November 8, 2004
• Status: Published

Opinions

OPINION BY

Judge FRIEDMAN.¹

J.G. Furniture Division/Burlington (Employer) and Liberty Mutual Insurance Company (Liberty Mutual) petition for review of the September 25, 2003, order of the Workers’ Compensation Appeal Board (WCAB), which affirmed the decision of the workers’ compensation judge (WCJ) making Liberty Mutual liable for Willard Eneller’s (Claimant) specific loss benefits based on Claimant’s average weekly wage (AWW) as of September 6, 1984. We affirm in part and reverse in part.

Claimant sustained a work-related injury to his left index finger on January 21, 1976, and he received total disability benefits pursuant to a notice of compensation payable (NCP).² Employer’s insurer at the time was Liberty Mutual.³ On September 6,1984, Claimant’s left index finger was amputated due to circulatory problems.⁴ Employer’s insurer at that time was Federal Kemper Insurance Company (Kemper).⁵

On October 20, 1997, following extensive litigation on matters that are not relevant here, Employer and Liberty Mutual filed a petition to suspend or review benefits, alleging that Claimant’s left index finger injury resolved into a specific loss as of September 6,1984, the date of the amputation, and that Claimant was entitled to specific loss benefits based on his AWW on January 21, 1976.⁶ On October 15, 1998, WCJ Peter E. Perry determined that Liberty Mutual was liable for specific loss benefits based on Claimant’s AWW in 1976.⁷

Claimant appealed to the WCAB, arguing that, pursuant to Roadway Express, Inc. v. Workers’ Compensation Appeal Board (Siekierka), 708 A.2d 132 (Pa.Cmwlth.1998), his benefits should be based upon his AWW on September 6, 1984, the date his injury resolved into a specific loss.⁸ The WCAB agreed, and, on June 9, 2000, the WCAB remanded the case for a calculation of the appropriate benefit rate.⁹

On October 24, 2000, at a hearing on Claimant’s 1984 AWW, Liberty Mutual moved to join Kemper as a party.¹⁰ WCJ Bruce K. Doman denied the motion, reasoning that to grant joinder would go beyond the WCAB’s remand order.¹¹ WCJ Doman then found that Claimant’s AWW on September 6, 1984 was $385.48, resulting in a weekly compensation rate of $256.99.¹²

Liberty Mutual appealed to the WCAB, arguing that, if Claimant’s 1984 AWW applied, then Kemper is liable for Claimant’s specific loss benefits and WCJ Doman erred in failing to allow the joinder of Kemper.¹³ The WCAB agreed and remanded the case so that Kemper could be joined and so that WCJ Doman could determine which insurer was hable for the specific loss benefits.¹⁴

On remand, WCJ Doman held a hearing on the joinder of Kemper.¹⁵ Kemper appeared at the hearing, presented evidence, argued that Liberty Mutual is liable for Claimant’s specific loss benefits and received an opportunity to present additional evidence after the hearing.¹⁶ Upon consideration of the matter, WCJ Doman denied joinder and ordered Liberty Mutual to pay Claimant’s specific loss benefits based on his 1984 AWW.¹⁷ Liberty Mutual appealed to the WCAB, which affirmed.¹⁸ Liberty Mutual now petitions this court for review.

Liberty Mutual first argues that the WCAB erred in concluding that Claimant’s specific loss injury occurred on September 6, 1984, and, thus, that Claimant’s specific loss benefits must be calculated using Claimant’s AWW as of September 6, 1984. We disagree.¹⁹

Section 306(c)(10) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513(10), states that the compensation for the permanent loss of an index finger is sixty-six and two-thirds per centum of the claimant’s “wages.” Under section 309 of the Act, the term “wages” shall be construed to mean an employee’s average weekly wage “at the time of the injury.” 77 P.S. § 582. Thus, if Claimant’s specific loss injury occurred in 1976, Claimant’s specific loss benefits would be based on Claimant’s AWW in 1976, but if Claimant’s specific loss injury occurred in 1984, Claimant’s specific loss benefits would be based on Claimant’s AWW in 1984.

In Roadway Express, this court held that, where a claimant’s eye is injured by trauma and there is a progressive diminution of the use of the eye which prevents the claimant from knowing that he had lost his eyesight completely for all practical intents and purposes, the specific loss injury occurred when a physician advised the claimant of the complete loss of the eye.

Here, Claimant’s left index finger was injured in 1976, and, as in Roadway Express, there was a progressive diminution of the use of the finger due to circulatory problems. In 1983 and 1984, Clarence L. Freed, M.D., discussed with Claimant the possibility of a finger amputation.²⁰ Claimant was reluctant to undergo amputation because Claimant had the normal use of his finger during warm weather when his circulation was normal.²¹ Nevertheless, Claimant agreed to the September 6, 1984, amputation because of the severe pain and numbness he felt in the cold weather.²² Thus, Claimant did not lose the use of his finger completely for all intents and purposes until the amputation, which means that the specific loss injury did not occur until September 6, 1984. As a result, under sections 306(c)(10) and 309 of the Act, Claimant’s specific loss benefits must be calculated using Claimant’s AWW as of September 6,1984.

Liberty Mutual next argues that, if Claimant sustained his specific loss on September 6, 1984, then Kemper, Employer’s insurer in 1984, is responsible for payment of Claimant’s specific loss benefits. We agree. Certainly, once the date of a specific loss injury has been established, the carrier at risk on the date the specific loss injury occurred is the responsible carrier. Indeed, we have found no law to the contrary. Therefore, because Kemper was Employer’s insurer in 1984, Kemper is liable for Claimant’s specific loss benefits.

Accordingly, we affirm the award of specific loss benefits based on Claimant’s 1984 AWW, but we reverse the determination that Liberty Mutual is hable for those benefits.²³

ORDER

AND NOW, this 8th day of November, 2004, the order of the Workers’ Compensation Appeal Board, dated September 25, 2003, is hereby affirmed in part and reversed in part, as set forth in the foregoing opinion.

1 . This case was reassigned to the opinion writer on August'9, 2004.

2 . (WCJ Perry’s 10/15/98 Findings of Fact, No. 1, R.R. at 3a.)

3 . (WCJ Doman’s 6/27/02 Findings of Fact, No. 1, R.R. at 25a.)

4 . (WCJ Perry’s 10/15/98 Findings of Fact, No. 1, R.R. at 3a; WCJ Doman’s 11/21/00 Findings of Fact, No. 1, R.R. at 14a.)

5 . (WCJ Doman’s 6/27/02 Findings of Fact, No. 7, R.R. at 26a.)

6 . (WCJ Perry’s 10/15/98 op. at “Record,” R.R. at 3a; O.R., 10/20/97 Petition to Suspend or Review Compensation Benefits.)

7 . (WCJ Perry's 10/15/98 Order, R.R. at 4a.)

8 . (O.R., Claimant’s 11/13/98 appeal to the WCAB.)

9 . (WCAB’s 6/9/00 op. at 3-4, R.R. at 9a-lla.)

10 . (O.R., 10/24/00 hearing, N.T. at 6.)

11 . (O.R., 10/24/00 hearing, N.T. at 6-7.)

12 . (WCJ Doman’s 11/21/00 Findings of Fact, No. 3, R.R. at 14a.)

13 . (O.R., Liberty Mutual’s 12/13/00 appeal to the WCAB.)

14 . (WCAB's 1/30/02 op. at 2-3, R.R. at 19a-20a.)

15 . (See O.R., 4/26/02 hearing transcript.)

16 . (O.R., 4/26/02 hearing, N.T. at 4, 8, 15.)

17 . (WCJ Doman's 6/27/02 op. at 5, R.R. at 27a.)

18 . (WCAB’s 9/25/03 op. at 5, R.R. at 34a.) We note that, in concluding that Liberty Mutual was liable for Claimant’s specific loss benefits, the WCAB relied on the principles of res judicata and collateral estoppel. However, the WCAB’s reasoning was flawed.

First, the WCAB stated that Liberty Mutual did not appeal the following finding from a 1987 adjudication involving a petition to set aside a final receipt: "The [circulatory] problems with the Claimant’s left index finger, which ultimately resulted in [its] need to be amputated, were the result of the injury Claimant sustained on January 21, 1976.” (O.R., WCJ Gould’s 9/25/87 Findings of Fact, No. 9.) Although this finding establishes Liberty Mutual's liability for loss of earnings caused by Claimant’s circulatory problems, it does not establish Liberty Mutual’s liability for specific loss benefits.

Second, the WCAB stated that Liberty Mutual did not appeal a finding from a 1998 adjudication that Liberty Mutual "agreed to pay [Claimant’s] specific loss benefits.” (WCJ Perry's 10/15/98 Findings of Fact, No. 3, R.R. at 4a.) However, the 1998 adjudication granted Liberty Mutual’s review petition. Thus, Liberty Mutual was not aggrieved by the adjudication and could not have appealed this finding. Moreover, the finding is incomplete; it does not state that Liberty Mutual agreed to pay Claimant’s specific loss benefits based on Claimant’s 1984 AWW.

19 .Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with law and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.

20 . (O.R., Dr. Freed’s 5/8/85 dep. at 16, 19.)

21 . (O.R., Dr. Freed's 5/8/85 dep. at 27.)

22 . (O.R. Dr. Freed's 5/8/85 dep. at 21.)

23 . We note that, although Kemper received notice of the briefing schedule that this court issued in this case, Kemper did not file a timely brief.