“Specific Loss” of Finger in PA Workers’ Comp Requires Opinion on Permanency

On our website, we have discussed the various types of benefits available under the Pennsylvania Workers’ Compensation Act (Act).  One of these types of benefits is known as “specific loss.”  This is the type of benefit available when a worker loses the use of a body part for “all practice intents and purposes.”  Recently, the Commonwealth Court of Pennsylvania dealt with the requirements of proving a “specific loss.”

In Morocho v. Workers’ Compensation Appeal Board (Home Equity Renovations, Inc.), the worker injured his thumb, index and middle fingers while using a table saw.  A Claim Petition was filed seeking, among other things, a specific loss of the index finger.

While litigating the case before the Workers’ Compensation Judge, the injured worker presented testimony from himself, and hospital records, showing that there was a significant injury to the index finger.  Specifically, in the post-operative note, the diagnosis was listed as “P1, P2 open fracture, partial tendon laceration, flexor digitorum profundus greater than 50% of the tendon width.”  Two pins were placed in the finger, then later removed, though significant damage to the finger, greatly limiting its use, remained.  A report from the treating physician observed that the injured worker “has effectively lost function of the index finger at this time for all intents and purposes.”  The insurance carrier doctor felt there was no loss of use.

After hearing the evidence, the WCJ found the injured worker, and his medical evidence, more credible than that offered by the workers’ comp insurance carrier.  As a result, the WCJ awarded the specific loss benefits for the loss of the index finger.

On appeal, however, the Workers’ Compensation Appeal Board (WCAB) reversed this decision.  The proof offered by the injured worker, said the WCAB, was missing a critical component.  The WCAB wrote:

[w]hile Dr. Chen opined that Claimant has effectively lost function of his index finger for all intents and purposes, he did not address the permanence of Claimant’s loss. Thus, the evidence of record does not support a conclusion that Claimant’s loss of function in his index finger is permanent, and Claimant was not able to meet his burden of proof.

Upon appeal to the Commonwealth Court of Pennsylvania, the decision of the WCAB, effectively denying the Claim Petition, was affirmed.  The Court agreed that the injured worker failed to offer any proof that the loss of use was permanent.  While the injured worker argued that there was bone loss in the accident, and resulting necrosis (death of tissue), making the injury clearly permanent, the Court remained unconvinced.

On first glance, one could think that the Court usurped the role of the WCJ, who has ultimate power to determine credibility.  But a closer look reveals that the Court, and the WCAB before it, was probably correct.  While the things cited by the injured worker show there was a permanency to the injury, candidly, they do not prove whether the loss of use of the finger was permanent.

This case shows, once again, the importance of selecting an attorney who is certified as a specialist in workers’ compensation law.  The Act is very complicated, and contains provisions which can be tricky for attorneys who do not devote their practice to just handling PA workers’ compensation cases, as we do at Brilliant & Neiman LLC.