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Adams v. Workers' Compensation Appeal Board6/7/2002
Donald Adams appeals from the order of the Workers' Compensation Appeal Board (Board) that reversed the Workers' Compensation Judge's (WCJ) award of specific loss benefits under Section 306(c) of the Workers' Compensation Act. We affirm.
While working for Boeing Helicopter, Donald Adams injured his left elbow. After the injury, he continued to work for Boeing as a jig and fixture builder and currently as a sheet metal assembler; he has not suffered any loss of earnings. However, as a result of the work injury, Adams's left elbow is permanently flexed. Based on this condition, Adams petitioned for specific loss benefits. The WCJ awarded benefits for a 50% loss of use and directed payment of $509.00 for 205 weeks. Boeing appealed, arguing that under Burkey v. Workmen's Compensation Appeal Board (North American Rockwell), 471 A.2d 1325 (Pa. Cmwlth. 1984) (en banc), Adams is not entitled to specific loss benefits for the loss of some functional use of the entire arm, as distinguished from total loss of use of a part of the arm. The Board agreed and reversed the award of benefits. Adams filed the present appeal. He contends that loss of use of a limb is a question of fact, resolved by the WCJ in his favor based on sufficient evidence and, therefore, the Board erred in failing to defer to the WCJ's finding.
Section 306(c)(3) of the Act provides compensation at 66 2/3% of wages for a period of 410 weeks for loss of an arm. The Act does not authorize payment of specific loss benefits for the partial loss of an arm. Section 306(c)(24) provides, in pertinent part, that permanent loss of the use of an arm shall be considered as the loss of such arm. Adams is entitled to benefits only if he established that he suffers "permanent loss of use of the injured for all practical intents and purposes." Dugan v. Workmen's Compensation Appeal Bd. (Boron Oil Co.), 528 A.2d 1054, 1056 (Pa. Cmwlth. 1987).
Whether a claimant has sustained the loss of use of a limb is a question of fact for the WCJ. See Bakula v. Workmen's Comp. Appeal Bd. (Budd Co.), 577 A.2d 961, 964 (Pa. Cmwlth. 1990). However, the proper standard to apply in making this finding is a matter of law. Id. The correct legal standard is set forth in Burkey, where this court stated:
e are presented not with a useless bodily part, or a useless portion of a bodily part, but with a whole bodily part whose total usefulness is reduced by half, that is, an injured bodily part capable of performing only half the activities or movements of a healthy, fully functioning bodily part . . . . Claimant here is able to do 50% of the things with his injured thumb that a person would be able to do with a fully functioning thumb. We cannot consider this the same as though half the thumb is totally useless or as if half the thumb had been physically removed; Claimant's injury is not, therefore, compensable under Section 306(c) of the Act. 471 A.2d at 1327-28. See also Oleszewski v. Workmen's Comp. Appeal Bd. (McGraw Edison Co.), 546 A.2d 1322, 1324 (Pa. Cmwlth. 1988).
In the present case, the WCJ based his award on the testimony of Dr. Rosenfeld, the orthopedic surgeon who has treated Adams since 1997. Rosenfeld opined that Adams "lost about fifty percent of the use" of his left arm as a result of the work injury. R.R. at 62a-63a. Dr. Rosenfeld described the condition limiting the function of Adams's arm as follows:
he accident produced a compression fracture of the radial head, a distraction injury causing ligament tears and a possible dislocation to the medial side of the elbow and has left him with a permanent thirty degree extension loss at the elbow plus an on-going inflammatory condition on the media
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