Opinion by
Judge Doyle,
Before this Court is the appeal of Thomas Olszewski (Claimant) from the order of the Workmens 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 Workmens Compensation Act1 (Act). We affirm the Boards 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 Claimants expert, Basil D. Marry-show, M.D., to be more credible. Thus, the referee accepted Claimants doctors clinical observations that “Claimant has limitation of flexion in his MP joint, pain upon motion of that joint and a moderate numbness of [227]*227the dorsal aspect of that finger.” On the basis of Dr. Marryshows 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. Marryshows 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 [228]*228of 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 wages during twenty-eight weeks.
. (15) The loss of any substantial part of the first phalange of a finger, or an amputation immediately, below the first phalange for the purpose of providing an optimum surgical result, shall be considered loss of one-half of the finger. Any greater loss shall be considered the loss of the entire finger.
(16) And the loss of one-half of the thumb, or,a,finger, shall be compensated at the same rate, as for the loss of a thumb or finger but for one-half of the period provided for the loss of a thumb or, finger.
(24) . .- . Permanent loss of the use of a hand, arm, foot, leg, eye, finger, or thumb, great toe or other toe, shall be considered as the equivalent of ,the loss of such hand, arm, foot, leg, eye, finger, or thumb, great toe or other toe.
[229]*229Clearly, the plain meaning of Section 306(c)(16) provides for specific loss benefits for the actual physical loss of “one-half of the thumb, or a finger.” However, as we observed in Burkey, “if a bodily part or a portion of it becomes useless, the statute treats it as though it were physically missing.” Id. at 544, 471 A.2d at 1327. Thus, Section 306(c)(24) provides the statutory underpinning for our “loss of use for all practical intents and purposes” test by stating that the “[p]ermanent loss of use of a . . . [bodily part] shall be considered as equivalent of the loss of such . . . [bodily part].” Interpreting Sections 306(c)(16) and 306(c)(24) consistently, then, we conclude that a claimant may only receive specific loss benefits for the loss of one-half of a finger in two instances. These are: (1) where he or she has had one-half of the finger amputated; or (2) where he or she has lost the function in one-half of the finger to such an extent .that it is as though the injured half of the finger were physically missing, that is, the claimant has lost the use of that one-half member for all practical intents and purposes. Burkey.
In the instant matter, Claimant is asking this Court to strain the plain language of Section 306(c)(16) to entitle him to an award of specific loss benefits for the loss of 50% of the functional use of his entire little finger. This we decline to do. In the alternative, Claimants request for relief would have us reinterpret Section 306(c)(24) to equate the loss of use of one-half of a finger for all practical intents and purposes with some loss of functional use of the entire finger. This we also decline to do. Therefore, we agree with the Board that the instant matter is entirely analogous to our decision in Burkey, and, thus, the very same reasoning controls.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Judge Doyle,
Before this Court is the appeal of Thomas Olszewski (Claimant) from the order of the Workmens 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 Workmens Compensation Act1 (Act). We affirm the Boards 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 Claimants expert, Basil D. Marry-show, M.D., to be more credible. Thus, the referee accepted Claimants doctors clinical observations that “Claimant has limitation of flexion in his MP joint, pain upon motion of that joint and a moderate numbness of [227]*227the dorsal aspect of that finger.” On the basis of Dr. Marryshows 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. Marryshows 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 [228]*228of 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 wages during twenty-eight weeks.
. (15) The loss of any substantial part of the first phalange of a finger, or an amputation immediately, below the first phalange for the purpose of providing an optimum surgical result, shall be considered loss of one-half of the finger. Any greater loss shall be considered the loss of the entire finger.
(16) And the loss of one-half of the thumb, or,a,finger, shall be compensated at the same rate, as for the loss of a thumb or finger but for one-half of the period provided for the loss of a thumb or, finger.
(24) . .- . Permanent loss of the use of a hand, arm, foot, leg, eye, finger, or thumb, great toe or other toe, shall be considered as the equivalent of ,the loss of such hand, arm, foot, leg, eye, finger, or thumb, great toe or other toe.
[229]*229Clearly, the plain meaning of Section 306(c)(16) provides for specific loss benefits for the actual physical loss of “one-half of the thumb, or a finger.” However, as we observed in Burkey, “if a bodily part or a portion of it becomes useless, the statute treats it as though it were physically missing.” Id. at 544, 471 A.2d at 1327. Thus, Section 306(c)(24) provides the statutory underpinning for our “loss of use for all practical intents and purposes” test by stating that the “[p]ermanent loss of use of a . . . [bodily part] shall be considered as equivalent of the loss of such . . . [bodily part].” Interpreting Sections 306(c)(16) and 306(c)(24) consistently, then, we conclude that a claimant may only receive specific loss benefits for the loss of one-half of a finger in two instances. These are: (1) where he or she has had one-half of the finger amputated; or (2) where he or she has lost the function in one-half of the finger to such an extent .that it is as though the injured half of the finger were physically missing, that is, the claimant has lost the use of that one-half member for all practical intents and purposes. Burkey.
In the instant matter, Claimant is asking this Court to strain the plain language of Section 306(c)(16) to entitle him to an award of specific loss benefits for the loss of 50% of the functional use of his entire little finger. This we decline to do. In the alternative, Claimants request for relief would have us reinterpret Section 306(c)(24) to equate the loss of use of one-half of a finger for all practical intents and purposes with some loss of functional use of the entire finger. This we also decline to do. Therefore, we agree with the Board that the instant matter is entirely analogous to our decision in Burkey, and, thus, the very same reasoning controls. As we stated in Burkey:
In the case before us, however, we are presented not with a useless bodily part, or a useless por[230]*230tion of a bodily part, but with a whole bodily part whose total usefulness is reduced by half, that is, an injured bodily part capable of performing only half the activities or movements of a healthy, fully functioning bodily part..... Claimant here is able to do only 50% of the things with his injured thumb that a person would be able to do with a fully functioning thumb. We cannot consider this the same as though half the thumb is totally useless or as if half the thumb had been physically removed; Claimants injury is not, therefore, compensable under §306(c) of the Act.
Id. at 544-45, 471 A.2d at 1327-28 (footnote omitted).
In the case at bar, Claimants medical expert, Dr. Marryshow, medically evaluated the functional loss of use of Claimants entire little finger, and he concluded that Claimant “had indeed lost the use of one-half of his left little finger for all intents and purposes.” However, it is well established that an experts conclusion must be supported by proper and relevant findings and not merely by a recitation of a legal standard. Motor Freight Express v. Workmen's Compensation Appeal Board, 59 Pa. Commonwealth Ct. 415, 429 A.2d 1272 (1981). Analyzing Dr. Marryshows medical report, we must agree with the Board that the doctors ultimate conclusion is unsupported by his own findings on physical examination.
Claimants doctor conducted the physical examination by examining the function of each of the joints in the little finger. These are: (1) the distal interphalangeal joint, which is the joint closest to the fingertip; (2) the proximal interphalangeal joint, which is the joint in the middle of the finger; and (3) the metacarpal phalangeal joint, which is the knuckle. Dr. Marryshow observed that Claimant has a full range of motion in the distal [231]*231interphalangeal and proximal interphalangeal joints. He further noted that Claimants ability to flex the metacarpal phalangeal joint is somewhat limited; Claimant experiences some pain when bending this joint, and Claimant also has some numbness in the dorsal portion of the finger.
Applying the Burkey test to the medical evidence presented by Claimant, we concur with the Board that Claimants medical evidence does not support a finding that one-half of the use of the entire little finger is lost for all practical intents and purposes. We further agree with the Board that the referee committed an error of law by attempting to apply the “loss of use for all practical intents and purposes” test to a factual scenario where the injury at issue was a 50% loss of functional use of the entire finger.
Therefore, based upon the foregoing, we hereby affirm the order of the Board.
Order
Now, August 31, 1988, the order of the Workmens Compensation Appeal Board in the above-captioned matter is hereby affirmed.