“Loss of Use” in PA Workers’ Comp Need Not be Complete

We have previously blogged about “specific loss” benefits in Pennsylvania workers’ comp. These are benefits available to an injured worker, other than indemnity (wage loss) and medical. When an injured worker loses the use of a body part (or suffers from facial disfigurement), he or she may be eligible for these “specific loss” benefits.

The issue in these types of cases often revolves around what constitutes “lose of use.” The Pennsylvania Workers’ Compensation Act, and interpreting case law, tells us that the body part must have been lost “for all practical intents and purposes.” What that phrase means, of course, is often litigated.

The Commonwealth Court of Pennsylvania recently addressed this issue in Miller v. Workers’ Compensation Appeal Board (Wal-Mart). As so frequently is the case, this was a very serious injury; the parties stipulated that the work injury would be described as “left spiral humeral fracture post-operative, left shoulder adhesive capsulitis and weakness, and radial nerve palsy.”

In the pending litigation, the injured worker sought to have benefits awarded for the specific loss of her left arm (she had gone back to modified duty work, so she was no longer receiving total disability benefits). The Workers’ Compensation Judge (WCJ) denied the Petition on the basis that the injured worker failed to prove that she had lost the arm for all practical intents and purposes. More specifically, the WCJ determined that the injured worker failed because she retained use of her hand and forearm, which precluded a loss of use of the arm.

On further appeal, the Commonwealth Court agreed with the injured worker that the WCJ used an incorrect standard – there is in fact no requirement that there be loss of the hand or forearm to obtain loss of use of an arm. The Court explained that the body part at issue need not be 100% useless to qualify as lost “for all practical intents and purposes.”

However, the Court still affirmed the decision of the WCJ. In his findings of fact, the WCJ rejected the testimony of the injured worker, and her medical expert, regarding her limitations. Surveillance video showed her using the shoulder in greater ways than she admitted in her testimony. Though the injured worker was no doubt limited, the use of the shoulder was greater than that needed for the arm to be lost “for all practical intents and purposes.”