Olszewski v. Workmen's Compensation Appeal Board

Dissenting Opinion by

Senior Judge Barbieri:

Most respectfully, I must record my dissent and disagreement with the view of the majority that the permanent loss of use of one-half of the Claimants fourth or little finger for all practical intents and purposes, as found by the referee, was properly reversed by the Board in this case.

While it is true that Section 513 of The Pennsylvania Workmens Compensation Act (Act), 77 P.S. §513, providing for specific losses of body members, contains no statutory authorization for less than the complete loss of use of a member, nevertheless, by case law loss of use of *232one-half of a member has become fully compensable under Section 513 by judicial interpretation of Subsection (16) which speaks only of actual loss of one-half of a member, as follows:

(16) And the loss of one-half of the thumb, or a finger, shall be compensated at the same rate as for the-loss of a thumb or finger but for one-half of the period provided for the loss of a thumb or finger. (Emphasis added.)

By analogy to Sub-séetion (16), Sub-section (24) (providing for loss of use of an entire member) provides:

(24) . . . Permanent loss of the use of 'a hand, arm, foot, leg, eye, finger, or thumb, great toe or other toe, shall be considered as the equivalent of the loss of such hand, arm, foot, leg, eye, finger, or thumb, great toe or other toe. (Emphasis added.)

Authority for awards for loss of use of one-half of a member was first found in the Superior Court case of Yaklich v. Union Collieries Co., 158 Pa. Superior Ct. 55, 43 A.2d 591 (1945), where the Superior Court held on the basis that the statute should be interpreted liberally in favor of claimants, that, therefore, medical testimony that the claimant had “lost one-half of the use of the thumb permanently” would support an award for one-half the loss of the thumb.

For these many decades since the decision in Yaklich our courts have similarly sustained awards for one-half the loss of use of a member where the loss was permanent and if the function impairment of the member is to the extent that it may be described as its usefulness is lost for all practical intents and purposes. This Court followed Yaklich in American Can Co. v. Sims, 6 Pa. Commonwealth Ct. 423, 296 A.2d 290 (1972), noting that the reasoning in Yaklich, in its interpretation of the legislation “in 1945, has never been *233changed by the Legislature.” Since then, cases such as this one have been decided pursuant to this interpretation and there has never been any additional requirement in determining loss of use of one-half of a member. Now, however, it is argued by the majority, that a stricter test should be required, relying upon our decision in Burkey v. Workmen's Compensation Appeal Board (North American Rockwell), 80 Pa. Commonwealth Ct. 540, 471 A.2d 1325 (1984). While I believe that Burkey is distinguishable, as will be noted hereafter, my disagreement with the conclusion reached by the majority is not based upon any distinction in this case from pronouncements in Burkey, but my disagreement is on the basis that the Board, citing Burkey, in my opinion gratuitously, reversed a referees finding which was based upon medical testimony which has always been considered by our appellate courts, including our Supreme Court, to be the proper test for. determining loss or loss of use of a body member. In Workmen's Compensation Appeal Board v. Hartlieb, 465 Pa. 249, 348 A.2d 746 (1975), the Supreme Court laid down the rule of proof required to establish “loss” as follows:1

In twenty-one numbered subsections of Section 306(c), the legislature has provided that permanent specific losses of certain enumerated parts of the body are to be compensated in. accordance with a prescribed schedule.- In twenty of these subsections the mere permanent ‘loss’ of the injured member is compensable. Thus, for example, the permanent loss , of a hand or the permanent loss of a foot is compensable. In construing these twenty subsections our courts have *234determined it is not necessary that the injured part of the anatomy be of absolutely no use in order for the injured claimant to qualify for compensation. Rather, the proper test to be applied is whether the claimant has suffered the permanent loss of use of the injured member for all practical intents and purposes.' Curran v. Walter E. Knipe and Sons, Inc., 185 Pa.Super. 450, [sic] 547, 138 A.2d 251, 255 (1958). See also Wall v. Workmen's Compensation Appeal Board, 12 Pa. Cmwlth. 12, 315 A.2d 656 (1974); Hershey Estates v. Workmen's Compensation Appeal Board, 9 Pa. Cmwlth. 470, 380 A.2d 637 (1973). (Emphasis added.) (Footnote omitted.)

Most directly on point is our decision in Teledyne Penn Union Electric v. Workmen's Compensation Appeal Board (Burge), 39 Pa. Commonwealth Ct. 265, 392 A.2d 359 (1978), where precisely as in this case the referees award was for loss of the use of one-half of the claimants little finger of his left hand. In affirming the finding that the claimant had “proven the loss of use of one-half of his fourth or little finger,” we stated:

A finding of loss of use under Section 306(c) is a finding of loss of use for all practical intents and purposes within the liberally construed permanent-loss provision of the Act. Mullen v. U.S. Steel Corp., 28 Pa. Cmwlth. 19, 367 A.2d 336 (1976). And such a finding is, of course, made in the light of this Courts prior holding that Section 306(c) should be construed so that every reasonable intendment of its express language should be upheld in behalf of the employee. Sims v. American Can Co., 6 Pa. Cmwlth. 423, 296 A.2d 290 (1972).

Turning to the instant case, the injured finger was displayed to the referee in a hearing, Claimant testified *235concerning his difficulties with this finger, and the medical witness whose testimony was accepted by the referee gave the following opinion:

It is therefore my impression and again based upon a reasonable degree of medical certainty that the deformities outlined are permanent and that Mr. Olszewski has indeed lost the use of one-half of his left little finger for all practical intents and purposes. (Emphasis added). (R.R. 5a).[2]

It goes without saying, and settled in the law, as pointed out by Judge Palladino in Dally v. Workmen's Compensation Appeal Board (Pullman Standard), 82 Pa. Commonwealth Ct. 291, 474 A.2d 1215 (1984), that “[t]he issue of loss of use of an extremity is a question of fact for the referee to resolve.”

Indeed, the Board in the instánt case while feeling obligated to reverse the referee under its interpretation of our decision in Burkey,3 expressed its frustration as follows:

It is regrettable that the case law of Burkey causes us to Reverse the award. The finger deformity noted in this case, and in others, reinforces our belief that the Act would better serve its stated purpose if it included the potential for *236hand and finger disfigurement awards as well as for the face and neck. (R.R. p. 5a).4

It is indeed regrettable that the view of the Board and the majority will leave this injured Claimant with a disability for which she will receive no compensation whatsoever. This was not the intent of the legislators in enacting and amending the provisions of The Pennsylvania Workmens Compensation Act.5 Therefore, I dissent.

While Hartlieb was concerned with Sub-section (8) of Section 306(c), hearing "loss, the language quoted has to -do with all sub-sections of Section 306(c).

We note that is is not necessary to support an award that the impaired member be of no use, but “substantial loss of functional use” will satisfy the requirement of loss of use for all practical intents and purposes. Burkey, Hartlieb and Gindy Mfg. Co. v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth Ct. 128, 378 A.2d 492 (1977).

Burkey is distinguishable in that the ruling there was that the Board properly required that a referee base compensability for loss of use on the time-honored rule that “the loss of function . . . rises to the level of loss of use for all practical intents- and purposes.”

The Board does not, nor does the majority, point to any alleged lack of sufficient evidence to support the referees findings as to loss of use.

We note in passing that Burkey was decided on March 1, 1984, while the injuries in this case and in the companion cases decided that date, occurred Olszewski July 26, 1984, Tonecha March 15, 1983 and Shields August 28, 1983.

It would be an incredible interpretation that a man who has lost one-half the use of his entire finger would get nothing while a man who had lost the use of only a segment of a finger would get paid for half the loss of the entire finger.