Pioneer Machine & Tool Co. v. Workmen's Compensation Appeal Board

602 A.2d 442, 145 Pa. Commw. 48, 1992 Pa. Commw. LEXIS 72
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 15, 1992
DocketNo. 1032 C.D, 1991
StatusPublished
Cited by3 cases

This text of 602 A.2d 442 (Pioneer Machine & Tool Co. v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pioneer Machine & Tool Co. v. Workmen's Compensation Appeal Board, 602 A.2d 442, 145 Pa. Commw. 48, 1992 Pa. Commw. LEXIS 72 (Pa. Ct. App. 1992).

Opinion

NARICK, Senior Judge.

Before this Court is the appeal from the petition for termination suspension or modification of compensation filed by Pioneer Machine and Tool Company (Employer) from the April 10, 1991 decision of the Workmen’s Compensation Appeal Board (Board) which affirmed the decision of the referee granting Edward Willis (Claimant) workmen’s compensation benefits as a result of his work-related injury. The Board’s decision is affirmed.

Claimant was employed as a machinist by Employer. On January 29, 1988, Claimant suffered a work-related injury to his right hand whereby his index, middle, ring and little fingers were crushed. As a result of this work-related injury, Claimant was paid workmen’s compensation benefits beginning January 29,1988, pursuant to a notice of compensation payable.

On December 16, 1988, Claimant filed a claim petition seeking specific loss benefits under Section 306(c)(15) of The Pennsylvania Workmen’s Compensation Act (Act),1 for the specific loss of the four digits of his right hand. In his claim petition, Claimant states that his specific loss of those four digits of his right hand exceeds the amount of compensation which Claimant has been paid to date. On January 17, 1989, Employer filed a petition for termination, suspension or modification of compensation asserting that Claimant had returned to work as of August 16, 1988 without loss of earnings.

After hearings on both the claim petition and suspension petition, the referee determined that Employer offered adequate evidence to support its suspension petition and suspended Claimant’s benefits as of August 16, 1988. The referee also determined that Claimant established a loss of use of the middle, ring and little fingers of his right hand as of August 1, 1988 to warrant payment of workmen’s com[52]*52pensation benefits for specific loss. On appeal, the Board affirmed the referee and the matter is now before this Court.2

The issues before this Court are whether substantial evidence of record exists to support an award of specific loss benefits and whether the referee improperly sustained objections of Claimant’s counsel to Employer’s cross-examination of Claimant’s physician.

In a suspension proceeding, the party seeking to suspend benefits has the burden of showing that a work-related disability has ended or been reduced and that the claimant is capable of returning to work. Carmine Paliotta General Construction v. Workmen’s Compensation Appeal Board (Tribuzio), 107 Pa.Commonwealth Ct. 143, 528 A.2d 274 (1987). This burden, like the burden on an employer in a termination petition, never shifts to the claimant. Unity Builders, Inc. v. Workmen’s Compensation Appeal Board, 50 Pa.Commonwealth Ct. 527, 413 A.2d 40 (1980); see also Zimcosky v. Workmen’s Compensation Appeal Board (United States Steel Corp.), 118 Pa.Commonwealth Ct. 209, 544 A.2d 1106 (1988).

In the instant action, Claimant admitted that he returned to work on August 16, 1988 with Employer. When questioned as to why he subsequently quit that job, he informed the referee that he quit because he “wasn’t going to get any better jobs.” April 4, 1989 Hearing, p. 5. Employer’s burden of proving that Claimant’s work-related disability has ended or been reduced and that Claimant is capable of returning to work to warrant suspension of compensation benefits has been met in this instance.

Employer argues that the Board erred in affirming the referee’s award of specific loss benefits to Claimant [53]*53under Section 306(c)(15) of the Act, as amended, 77 P.S. § 513(15), because sufficient evidence of record did not exist to support that award.3 A claimant, as the party seeking to establish a specific loss in a workmen’s compensation case, has the burden of showing that he or she suffered permanent loss of use to the injured part of his or her 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). Furthermore, if a body part or a portion of it becomes physically useless, then the Act treats that body part as though it were physically missing. Burkey v. Workmen’s Compensation Appeal Board (North American Rockwell), 80 Pa.Commonwealth Ct. 540, 471 A.2d 1325 (1984).

Where the Board takes no additional evidence, the ultimate factfinder is the referee and his or her findings of fact, if supported by substantial evidence, must be accepted on judicial review. Action, Inc. v. Workmen’s Compensation Appeal Board (Talerico), 116 Pa.Commonwealth Ct. 81, 540 A.2d 1377 (1988), affd. 523 Pa. 419, 567 A.2d 1040 (1990). “Substantial evidence” has been defined as that evidence, including the inferences therefrom, which a reasonable person acting reasonably might use in reaching a decision, but, if a reasonable person acting reasonably could not have reached the decision from the evidence and its inferences, then the decision is not supported by substantial evidence and it should be set aside. See A.P. Weaver & Sons v. Sanitary Water Board, 3 Pa.Commonwealth Ct. 499, 284 A.2d 515 (1971).

In the matter sub judice, the only doctor to testify was Dr. Christopher Tzarnas, Claimant’s physician. Dr. Tzarnas testified that in his opinion Claimant suffered a significant loss of use of three digits of his right hand — the middle, the ring and little fingers. His opinion was based [54]*54on Claimant’s lack of motion in his joints. Dr. Tzarnas found that this loss of motion would certainly be important in performing routine activities with those fingers. Deposition of Dr. Tzarnas, May 31,1989, N.T. pp. 12-14,16,19, 22, 24-27.

In addition to medical testimony, the referee must consider the testimony of claimant as to what he or she can or cannot do with the injured body parts in question. See Bakula v. Workmen’s Compensation Appeal Board (Budd Co.), 134 Pa.Commonwealth Ct. 37, 577 A.2d 961 (1990). In the instant action, the referee found that there are many things Claimant cannot do as a result of his injury. Claimant went into detail and testified that he has lost strength and dexterity in his right hand evidenced by his inability to grab and hold many items, especially small items such as a bolt. Claimant testified that he is unable to make a fist or completely straighten his middle finger, his ring finger or his little finger on his right hand. The Claimant also indicated that he is unable to carry things in his right hand because they slip out and he tends to use his left hand for many activities that he formerly performed with his right hand. N.T., pp. 6-9, 11-12.

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602 A.2d 442, 145 Pa. Commw. 48, 1992 Pa. Commw. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pioneer-machine-tool-co-v-workmens-compensation-appeal-board-pacommwct-1992.