Schuster v. Workmen's Compensation Appeal Board

459 A.2d 846, 74 Pa. Commw. 56, 1983 Pa. Commw. LEXIS 1572
CourtCommonwealth Court of Pennsylvania
DecidedMay 2, 1983
DocketAppeal, No. 1966 C.D. 1981
StatusPublished
Cited by8 cases

This text of 459 A.2d 846 (Schuster 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
Schuster v. Workmen's Compensation Appeal Board, 459 A.2d 846, 74 Pa. Commw. 56, 1983 Pa. Commw. LEXIS 1572 (Pa. Ct. App. 1983).

Opinion

Opinion by

Judge Rogers,

On October 5, 1973, Richard Schuster was engaged in the mill of his employer, Lee Tire and Rubber Company. Mr. Schuster, hired by Lee Tire as a white-collar office worker, had -been sent into the mill along with other office workers in order to prevent a cessation in tire production due to an ongoing labor dispute with the employer’s unionized employee®. In his attempt to carry out the unaccustomed duties in the mill, which involved the manipulation of sheets and rolls of rubber weighing in excess of two hundred pounds and the division of these rolls from the machine of their creation by means of a knife, Mr. Schuster was severely injured by -a wound to his wrist inflicted by the knife of a novitiate co-worker similarly engaged.

[58]*58A claim petition, was timely filed and at a hearing conducted by a referee on April 26,1976, the claimant’s treating physician, Dr. Victor Vare, a Board Certified specialist in orthopedic and hand surgery, testified that the claimant’s injuries included the laceration of tendons and other .structures and the complete severance at two points of the ulnar nerve. When asked to describe the function of the ulnar nerve, Dr. Vare testified that “ [t]he ulnar nerve supplies all of what we call the intrinsic musculature of the hand. All of the little small, fine timing performing muscles are supplied by the ulnar nerve within the hand. ’ ’ In addition Dr. Vare testified that the ulnar nerve innervates certain muscle groups controlling specified gross movements of the fingers and thumb and the nerve further provides sensation from the whole of one finger, portions of other fingers, and areas on both the palm and back of the hand.

When asked to describe the extent of the claimant’s disability resulting from his injury and believed by the physician to be permanent, D,r. Vare proceeded with a detailed description of each finger in turn and the extent to which its function and sensation had been curtailed by the accident.1 This testimony is accurately represented by factual findings of the referee contained in his decision dated December 1, 1976 as follows :

10. The present condition of Claimant’s little finger on his left hand resulting from the accident is one of deformity, described as ulnar claw. There is no sensation in the little finger and it has a loss of function.
11. The ring finger of Claimant’s left hand has a mild deformity and has suffered a loss of [59]*59function. Sensation in the ring finger of the left hand has been lost on the ulnar or little finger half of the ring finger.
12. The intrinsic musculature of the middle or long finger of Claimant’s left hand is not functioning.
13. The index finger of Claimant’s left hand has lost the use of the abduction muscle used for the process of pinching, making Claimant’s pinch weak.
14. Claimant’s left thumb has lost innervation in one half of the three major intrinsic muscles of the thumb, making the thumb weak.

Direct examination of the claimant consisted primarily of his response to queries as to whether he could perform with his left hand specified common tasks. The claimant testified that he is right-handed and, therefore, has adapted somewhat to his disability but that the inability to move several fingers and limitations on the movements of others in combination with the overall loss of the ability to coordinate the left hand’s movements and extensive loss of sensation render him unable to cut his food, to put toothpaste on his toothbrush, to shave, to tie his necktie, to drive a manual transmission automobile, to open the driver’s side oar door from the inside — in sum; to perform any task which requires use óf the left hand or use of both hands in combination. The claimant further testified that his injured hand was the cause of considerable discomfort most of the time and, when exposed to cold, was even less useful and more painful than usual.

Cross-examination of the claimant appears to have left largely undisturbed the impression created by the direct testimony that the injured left hand is useless for virtually every task normally undertaken by the claimant. Instead, the employer’s counsel repeatedly [60]*60posed irrelevant questions to the claimant as to why he could not instead perform the task at issue with his uninjured right hand.2

On the basis of this evidence the referee made the follo.wing factual findings and conclusion of law:

17. The Referee believes the Claimant’s testimony that the Claimant has no sensation in the lower part of his left hand from the center of the ring finger down to the middle of the hand to the cut which was caused by the accident.
18. Claimant’s left hand is sensitive to cold and heat and is slow and difficult to move. Additionally, in cold weather Claimant’s left hand becomes raw and frail.
19. The Referee believes Claimant’s testimony that he has serious trouble in performing the usual normal daily functions of life using his left hand.
[61]*61CONCLUSIONS OF LAW
3. Claimant has established by the preponderance of the evidence that the injury sustained by him in the accident in question has for all practical intents and purposes caused a loss of the use of his left hand.

Compensation was awarded in accordance with the terms of Section 306(e) of the Pennsylvania Workmen’s Compensation Act, Act of June 2,1915, P.L. 736, 77 PjS. §513(0) having to do with the specific loss of bodily members there enumerated.

The employer sought review of the referee’s decision before the Workmen’s Compensation Appeal Board which remanded the cause for further proceedings. Following the remand the referee again concluded that the claimant had, for all practical intents and purposes, lost the use of his left hand and, therefore, that the compensatory scheme of Section 306(c) of the Act was available. Again the employer appealed and the Board again remanded the cause for further proceedings; on this occasion with directions that the referee appoint and receive evidence from an impartial expert medical witness. A medical witness was appointed and additional evidence received and on the basis of this evidence the referee issued a third decision, dated September 29, 1980, in which it is found that:

8. The claimant did not lose the loss [sic?] of use of his lef t hand.

An appeal to the Board by the claimant was unavailing.

In argument before this Court the claimant first argues that the Board erred in remanding the cause to the referee following the referee’s first decision in December, 1976. We agree and therefore do not reach any [62]*62of the issues raised with respect to the subsequent determinations of the workmen’s compensation authorities.

The decision of a workmen’s compensation referee is properly reversed and remanded for a new decision only in case the referee’s findings are unsupported by substantial evidence of record and are disregarded by the Board or the referee’s findings fail to resolve a necessary issue raised by the evidence or by the parties. Section 423 of the Act, 77 P.S. §854. Forbes Pavilion Nursing Home v. Workmen’s Compensation Appeal Board, 18 Pa.

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Bluebook (online)
459 A.2d 846, 74 Pa. Commw. 56, 1983 Pa. Commw. LEXIS 1572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schuster-v-workmens-compensation-appeal-board-pacommwct-1983.