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Borough v. Workers' Compensation Appeal Board6/21/2002
Tarentum Borough (Employer) appeals the Workers' Compensation Appeal Board's (Board) reversal of the order of the Workers' Compensation Judge (WCJ) granting Kenneth Misejka's (Claimant) 50 weeks of specific loss benefits for the loss of one-half of his right thumb. The Board's decision granted Claimant 100 weeks of benefits for the total loss of that thumb. We affirm.
Claimant sustained a work-related injury on May 23, 1995, which Employer recognized by notice of compensation payable as a laceration of Claimant's right thumb. Claimant's injury required surgery. He received 7 5/7 weeks of total disability benefits and returned to his pre-injury job on July 17, 1995. Pursuant to a supplemental agreement, Claimant's total disability benefits were suspended.
On January 28, 1999, Claimant filed a reinstatement petition, seeking benefits for the specific loss of his right thumb. Claimant testified that, at the time of his injury, he was grinding rough edges off playground equipment when the grinding wheel "blew up" and a fragment embedded in his thumb. Finding of Fact No. 2. He testified that he has difficulty grasping and holding the tools in his job as a maintenance worker for Employer, as he must hold his thumb in an awkward position and has almost no movement in the first joint. Additionally, the first joint of his thumb is numb. He plays guitar and cannot hold the pick properly, and he has trouble performing tasks such as fastening and unfastening buttons.
Claimant also presented the testimony of Eric Minde, M.D., a physiatrist (physician specializing in physical therapy). Dr. Minde examined Claimant and found that Claimant lost the use of his entire thumb. He opined that the IP joint of Claimant's right thumb has only a couple degrees of motion.
In response, Employer presented the testimony of Mark Baratz, M.D., an orthopedic surgeon specializing in hand surgery. Dr. Baratz opined that Claimant had permanent stiffness in his right thumb, but that his loss of use did not exceed 50% of his thumb. He opined that Claimant's right IP joint moves from 15 to 30 degrees, while his left IP joint moves from 20 to 70 degrees. According to Dr. Baratz, Claimant had reached maximum medical improvement.
The WCJ found Dr. Baratz to be more credible than Dr. Minde, because his opinion was consistent with Claimant's testimony that the first joint of his thumb is severely impaired. The WCJ found that Claimant permanently lost the use of the first phalange of his right thumb for all practical intents and purposes. Despite that finding, the WCJ concluded that Claimant failed to meet his burden of proving that he lost the use of his entire thumb. The WCJ awarded Claimant 50 weeks of total disability less a credit for the 7 5/7 weeks of workers' compensation that Employer had already paid.
On appeal, the Board determined that the WCJ erred by awarding benefits limited to a 50% loss of use of Claimant's thumb, since Section 306(c) of the Workers' Compensation Act (Act) defines the loss of the first phalange as the total loss of the thumb.
Employer urges us to reverse the Board, arguing that the Board reversed the WCJ on the basis of an unspecified typographical error. Employer asserts that the WCJ's finding that Claimant lost the use of the first phalange of his thumb is an obvious typographical error. According to Employer, the remainder of the WCJ's decision is consistently and solidly in favor of a finding of 50% loss of Claimant's thumb. We disagree.
It is not our role to speculate whether the WCJ's factual findings are typographical errors. If the WCJ's findings of fact are supported by substantial evidence, on appeal
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