Tloczynski v. Workers' Compensation Appeal Board

765 A.2d 1183, 2001 Pa. Commw. LEXIS 22
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 18, 2001
StatusPublished
Cited by1 cases

This text of 765 A.2d 1183 (Tloczynski v. Workers' 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
Tloczynski v. Workers' Compensation Appeal Board, 765 A.2d 1183, 2001 Pa. Commw. LEXIS 22 (Pa. Ct. App. 2001).

Opinion

SMITH, Judge.

Thomas Tloczynski (Petitioner) petitions for review of an order of the Workers’ Compensation Appeal Board (Board) affirming the decision of a Workers’ Compensation Judge (WCJ) that granted the [1184]*1184modification/review petition filed by John F. Miles Co., Inc. (Employer) and denied the petition for penalties that Petitioner filed. Petitioner questions whether his claim is limited to a specific loss of the right index finger, whether he suffered an injury separate and apart from the specific loss that is compensable under the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2626, and whether the healing period extends beyond the payments made by Employer.

I

Petitioner, a construction laborer, sustained damage to his right index finger while moving heavy equipment on stairs, which required amputation of the tip of the finger. By a notice of compensation payable dated August 28, 1995, Employer acknowledged an injury to Petitioner on July 28, 1995 described as “right index finger.” Petitioner developed a growth protruding from the incisional scar of the amputated finger. Carlos Villareal, M.D., began treating Petitioner on June 10, 1996; he excised the protrusion. A biopsy determined that it was partially fingernail and partially scar tissue. Dr. Villareal performed another surgery on the tip of the finger under local anesthesia on July 22, 1996.

Employer filed its modification/review petition on October 18, 1995. It asserted that Petitioner’s injury had resolved into a specific loss of one-half of Ms right index finger as of September 9, 1995 that would entitle him to twenty-five weeks of compensation and a healing period of six weeks for a total of thirty-one weeks. Employer stopped paying benefits near the end of August 1996, at the end of the healing period plus the fifty weeks for loss of the full index finger provided in Section 306(c)(10) of the Act, 77 P.S. § 513(10). Petitioner filed a penalty petition on November 7, 1996, seeking penalties for Employer’s umlateral cessation of payment of benefits. On January 29, 1997, Dr. Villa-real operated to remove more of the bone of Petitioner’s finger, and he excised a cyst extending into the bone that was found during that procedure. Dr. Villareal testified that Petitioner experiences a form of pain called causalgia, which is not unusual for amputee patients.

Employer presented the September 30, 1996 deposition of Michael H.O. Dawson, M.D., who first treated Petitioner on January 23, 1996. Dr. Dawson described caus-algia as phantom limb pain and testified that generally speaking Petitioner’s complaints following his surgery are typical of such an amputation and that they could not be characterized as separate, apart and distinct from that which normally follows amputation. Dr. Dawson stated that to facilitate a proper recovery, the finger needed to be shortened by about another centimeter to the neck of the middle phalanx.

The WCJ stated that in its brief and in its proposed conclusions of law Employer had admitted liability for a specific loss of the full right index finger and noted that Employer had acknowledged Petitioner’s entitlement to fifty weeks of payments for loss of the right index finger. The issue in the modification/review petition, according to the WCJ, was whether there was an injury separate and apart from the acknowledged injury. Citing Czap v. Workmen’s Compensation Appeal Board (Gunton Corp.), 137 Pa.Cmwlth. 612, 587 A.2d 49 (1991), the WCJ noted that generally the determination of a specific loss precludes payment of wage-loss benefits in addition to the fixed entitlement set forth in Section 306(c) of the Act, 77 P.S. § 513; however, there is an exception under which a claimant will qualify for total disability payments if he or she shows a •destruction, derangement or deficiency to a separate and distinct part of the body that did not follow as a normal result of the specific loss.1

[1185]*1185The WCJ concluded that Employer had met its burden and granted the modification/review petition and amended the NCP to describe Petitioner’s injury as a specific loss of the right index finger, rather than the loss of one-half of the index finger. Further, Employer had met its burden of proving that Petitioner did not sustain a destruction, derangement or deficiency of some other part of the body separate and distinct from the right index finger. Although Employer violated the Act by ceasing payments unilaterally at the end of the period of fifty-six weeks (six-week healing period plus fifty weeks for specific loss) because no wage-loss benefits were due for the period subsequent to the cessation of benefits, the WCJ determined that there was no amount awarded with respect to which penalties could be imposed.

On Petitioner’s appeal the Board reviewed the testimony and noted the authority of the WCJ to accept or reject the testimony of any witness, in whole or in part, citing Tatano v. Workers’ Compensation Appeal Board (Copyworld of Pittsburgh), 698 A.2d 123 (Pa.Cmwlth.1997). The Board concluded that substantial evidence supported the WCJ’s findings, that the WCJ properly determined that Petitioner had not suffered an injury beyond the specific loss of the right index finger and that Petitioner was not entitled to disability benefits in addition to specific loss benefits.2

II

Petitioner first quotes from the report of Dr. Mohammed Aslam describing Petitioner’s post-traumatic causalgia and the testimony of Dr. Villareal concerning the ongoing problems that Petitioner experienced and Dr. Villareal’s agreement that the cyst discovered in the January 1997 operation was a situation separate and apart from that which would normally follow from an amputation of the distal phalanx of the right index finger. Further, he states that he had three significant surgeries on his hand, which resulted in additional healing periods. Petitioner notes that Section 306(d) of the Act, 77 P.S. § 513, provides that if there are several specific losses under Section 306(c), the longest healing period is paid, but no healing period is paid if a claimant receives payment for total disability separate and apart from a Section 306(c) specific loss. Petitioner then asserts that there would be a “healing period” equal to the time of closure of the wound that would extend his compensation payments into mid-1997.3

Additionally, Petitioner maintains that he suffered a separate injury in the form of causalgia and also the ulcerated area of the finger that had to be excised in the last operation. In comparison he notes that a painful neuroma can be the reason for a specific loss based upon loss of use, citing Reading Tube Corp. v. Workmen’s Com[1186]*1186pensation Appeal Board, 12 Pa.Cmwlth. 45, 315 A.2d 678 (1974). He notes that a painful neuroma has also been found to be an injury separate and apart from a specific loss. Rowan v. Workmen’s Compensation Appeal Board, 58 Pa.Cmwlth. 56, 426 A.2d 1304 (1981); Truck Lubricating & Washing Co. v.

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Bluebook (online)
765 A.2d 1183, 2001 Pa. Commw. LEXIS 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tloczynski-v-workers-compensation-appeal-board-pacommwct-2001.