K. Parks v. WCAB (Ayers Line Construction, Inc.) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Parks, :
Petitioner :
: No. 1444 C.D. 2017
v. :
: Submitted: April 13, 2018
Workers’ Compensation Appeal :
Board (Ayers Line Construction, Inc.), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 16, 2018
Kenneth Parks (Claimant) petitions for review from the September 20,
2017 order of the Workers’ Compensation Appeal Board (Board), which affirmed the
order of a Workers’ Compensation Judge (WCJ) granting Claimant’s review petition
and awarding specific loss benefits for the loss of the left thumb and first finger. Upon
review, we affirm the Board.
Facts and Procedural History
Claimant was injured on November 6, 2008, while working for Ayers Line
Construction, Inc. (Employer) as a lineman, when his bucket truck touched a hot wire
and he sustained an electric shock, which entered through his left arm and exited
through his left wrist, index finger, and thumb, as well as through his right wrist.
Employer issued a notice of compensation payable, describing Claimant’s injury as
electric shock to both hands and both arms. In October 2014, Claimant filed a petition
to review his benefits, asserting that he had also sustained the specific loss of use of
both his hands, in addition to disabilities related to his arms that were separate and apart
from the other acknowledged disabilities. Employer filed an answer denying the
averments in Claimant’s petition and the matter was assigned to a WCJ, who held
multiple hearings. (Findings of Fact (F.F.) Nos. 1-5.)
Claimant testified before the WCJ. He stated that his job as a lineman for
Employer entailed rebuilding new power lines, putting in new wire, and installing new
telephone poles. On the date of the injury, he stated that the bucket truck he was in
touched a hot wire, causing 7,200 volts of electricity to enter his body through his left
forearm, travel through his body, and exit his left wrist, left index finger, left thumb
and right wrist. Claimant testified that Dr. Robert Kang performed several surgeries to
address his severe burns, including amputation of his left index finger and partial
amputation of his left thumb, which fused into a bent position. Claimant stated that he
had skin grafts applied on both wrists from the crease of his palm down several inches
into his forearm. (F.F. Nos. 4-7; Reproduced Record (R.R.) at 18a, 24a, 28a.)
With regard to his symptoms, Claimant testified that his left and right
hands are numb and painful—specifically, his thumbs, right index finger, middle
fingers, and half of his ring fingers. Claimant stated that both of his wrists are sensitive
and that he feels pain shoot up and down his arms when they are touched. On his left
hand, Claimant testified that bone was taken out between his middle finger and thumb
along the back of the hand where his index finger had been. He stated that he cannot
move his left wrist the way he used to previously and that he has no strength or feeling
in his left hand such that he cannot use it to do anything. On his right hand, Claimant
2
stated that his fingers are numb and that he does not have the same range of motion as
he did previously. Claimant further testified that he cannot tie grocery bags or shoes,
pull up zippers, hold money in either hand, open a bag of chips, go fishing or hunting,
clip his dogs’ collars, throw a ball, or play Legos with his child. He stated that he
drives with his right hand but not for long distances because his wrist gets sore and stiff
and it is difficult for him to steer, since he must “palm” the wheel with his right hand
and operate the turn signals with his pinky fingers. (Board’s Op. at 4-5; F.F. Nos. 8-
11.)
On cross-examination, Claimant acknowledged that he is right-handed
and agreed that his right hand is more functional than his left. Claimant stated that he
could use his right hand to brush his teeth, feed and clean himself, and sign his name.
He stated that he can button his pants without assistance using both hands. With regard
to driving, Claimant stated that he drives a Ford F-150 without any modifications and
that no doctors have instructed him not to drive. Claimant also acknowledged that he
obtained a hunting license every year since his injury, but stated that he only used it to
help his friend “drive deer” by using his arms to push brush out of the way. (R.R. at
73a.) Claimant further stated that he had not shot a firearm since the date of his work
injury. Claimant agreed that he has a normal range of motion in the middle, ring, and
pinky fingers of both hands and that he could make a fist with his right but not left
hand. Finally, Claimant testified that, since the injury, he has not done yard work,
chores, or driven an ATV; however, Claimant reiterated his testimony that he could
drive alone and stated that he was able to pay for gas and merchandise with a credit
card. (F.F. Nos. 11-14; Board’s Op. at 5-6.)
Claimant’s wife, Angela Parks, also testified before the WCJ. She stated
that she had known Claimant for 15 years and that, prior to his injury, he had been the
3
family’s mechanic and handyman. Since the accident, Mrs. Parks stated that Claimant
does not do anything around the house except watch television and kick a ball with one
of their dogs. Mrs. Parks testified that Claimant cannot use his left hand for anything
and that, while his right hand is more functional, he is unable to use it to open cereal
boxes or twist ties. Mrs. Parks further testified that she stopped working shortly after
Claimant’s injury because Claimant was unable to prepare food for himself or clean up
after their dogs. On cross-examination, Mrs. Parks stated that Claimant is able to
change the television channel by working the remote control with his right thumb.
Additionally, she testified that Claimant can open the refrigerator and get himself a
snack or bottle of water, which he opens by using his right pinky finger to twist off the
cap. (F.F. Nos. 15-16; Board’s Op. at 6.)
In support of his petition, Claimant presented the deposition testimony of
Robert H. Kang, M.D., a board-certified plastic surgeon and hand surgeon who began
seeing Claimant in December 2008 and treated him on a routine basis. Dr. Kang
confirmed that Claimant had undergone several surgeries, including a left index finger
ray amputation at the base of the finger, which went into the palm and a partial left
thumb amputation, resulting in a thumb that is essentially fused. Dr. Kang also
testified about a report he authored in October 2013, and reiterated that Claimant
sustained electrical injuries to both forearms and injuries to the median nerve in both
forearms and wrists. He explained that the median nerve innervates many muscles
controlling the forearms, wrists, and fingers, and that, as a result of his damaged median
nerves, Claimant would be unable to perform his duties as a lineman. (F.F. Nos. 17-
20; Board’s Op. at 6-7.)
Dr. Kang testified that he reviewed and agreed with a July 2013 report
authored by Jon B. Tucker, M.D., a doctor who performed an impairment rating
4
evaluation on Claimant. Specifically, Dr. Kang agreed with Dr. Tucker that Claimant’s
skin grafts measured 20 centimeters by 20 centimeters on the radial aspect of both
forearms and that the range of motion Dr. Tucker measured on Claimant was consistent
with his own observations. Dr. Kang also testified that he reviewed the records of
Gregg Goldstrohm, M.D., who performed an independent medical evaluation of
Claimant in October 2012, and stated that he agreed with Dr. Goldstrohm’s statement:
“I do not think he’ll ever return most likely to the workforce.” (R.R. at 115a.) Lastly,
Dr. Kang testified that he disagreed with the opinion of Steven E. Kann, M.D., who
evaluated Claimant in January 2015, that Claimant had full range of motion in his
wrists. (F.F. No. 21; Board’s Op. at 6-7.)
Dr. Kang testified regarding Claimant’s loss of the use of his hands. With
regard to Claimant’s left hand, Dr. Kang testified to his opinion that Claimant was not
able to use his left hand in the workforce because he has no feeling in those fingers
within the median nerve distribution, which include the thumb, index finger, middle
finger, and one half of the ring finger. Dr. Kang noted that Claimant does not have a
left index finger and, thus, was left only with sensation in his pinky finger on that hand,
which he did not believe was sufficient to continue in the workforce. Further, Dr. Kang
stated that the surgery to Claimant’s left thumb left it shortened, flexed, and stiff. He
opined that, although Claimant is able to make a fist with his left hand, it is weakened
and, in his opinion, cannot be used for activities of daily life. (F.F. Nos. 20, 22; Board’s
Op. at 7-8.)
As to Claimant’s right hand, Dr. Kang testified that Claimant likewise has
no sensation in the median nerve distribution and has lost appreciable grip strength,
noting that Dr. Kann measured it at 35 pounds at level 2 on a Jamar grip device. Dr.
Kang stated that he would expect the grip strength of Claimant’s right hand to be 120
5
pounds and 80% to 90% of that in his left hand. Dr. Kang observed that Claimant is
able to make a fist with his right hand but stated that it was not a “functional fist.”
(R.R. at 124a.) Ultimately, Dr. Kang testified that Claimant had lost the use of his right
upper extremity for all intents and purposes and that he had lost the use of his right
hand for all intents and purposes related to “meaningful gain.” (R.R. at 125a.) Dr.
Kang clarified that Claimant’s ability to drive a vehicle without modifications did not
change his opinion. (F.F. Nos. 23-24; Board’s Op. at 8.)
Finally, Dr. Kang opined that Claimant had a disability with regard to both
forearms and wrists, separate and apart from his hands because skin grafts do not
“behave like normal skin in terms of protection and integrity, even though [the skin] is
his.” (R.R. at 135a.) Dr. Kang explained that Claimant had lost “protective sensation”
in the skin grafts, which are adhered to his flexor tendons, and noted that the skin was
thin and consequently cold and heat intolerant, as well as prone to a loss of integrity
and injury. Dr. Kang further noted that Claimant’s wrist range of motion was limited
due to the skin grafting. Dr. Kang agreed that Claimant’s ulnar and radial nerves were
still functioning in both hands, but opined that Claimant’s deficits were permanent and
that Claimant had reached maximum medical improvement. Dr. Kang also
acknowledged that the purpose of some of Claimant’s surgeries, including the left
index finger amputation, was to increase the functionality of his hand. (F.F. Nos. 21,
23; Board’s Op. at 8-9.)
Employer presented the testimony of Dr. Steven Kann, a board-certified
orthopedic surgeon with a subspecialty in the hand, upper extremity, and microsurgery.
Dr. Kann testified that he obtained a history from Claimant, reviewed numerous
medical records, and evaluated Claimant in January 2015. Dr. Kann noted that there
are three nerves providing sensation to the hands and arms and that, while the median
6
nerves in both of Claimant’s hands were not functioning, his radial and ulnar nerves
remained intact. Dr. Kann explained that the ulnar nerve, which is responsible for fine
motor control of the hand, provides sensation to the palmar surface of the fifth digit
and to half of the ring finger. Dr. Kann also explained the radial nerve provides
sensation on the top of the hand and enables one to extend one’s fingers. Dr. Kann
testified that, if Claimant lacked median nerve sensation, he could still grip a cup and
type, although he would have to watch his fingers because he would be unable to rely
on tactile sensation to guide him. Thus, Dr. Kann stated that a lack of sensation did
not equate to a lack of use, noting that Claimant’s ability to use a remote control with
his right thumb was an example of fine manipulative activity. (F.F. Nos. 26-29;
Board’s Op. at 9-10.)
Based upon his evaluation, Dr. Kann stated he found Claimant had a full
range of motion of all features of his right hand, as well as a well-healed skin graft, a
full range of motion of the right wrist and elbow, and functional grip strength. With
regard to Claimant’s left hand, Dr. Kann noted the amputation of Claimant’s index
finger and that his thumb has stiffness and a “flexion contracture” in the end joint,
meaning that it was bent and unable to be fully straightened. (R.R. at 261a.) Otherwise,
Dr. Kann stated that Claimant’s third, fourth, and fifth fingers, as well as his left wrist,
had a normal range of motion. Dr. Kann also noted that Claimant indicated his
hypersensitivity to touch at the median nerve injury site in both wrists. (F.F. Nos. 31-
32; Board’s Op. at 9-10.)
Dr. Kann also measured Claimant’s grip strength during the evaluation
using a Jamar dynamometer device and noted that Claimant achieved 35 pounds on the
right and 20 pounds on the left, which Dr. Kann stated was approximately the grip
strength of a 75-year-old woman. Noting that the difference in strength between
7
Claimant’s hands was consistent with Claimant’s right-hand dominance, Dr. Kann
stated that normal findings would be between 80 and 110; however, Dr. Kann testified
that Claimant’s grip strength would still allow him to cook, clean, brush his teeth, drive
a car, manipulate papers, and perform activities of daily living, although he would be
unable to pick up or pull very heavy objects or forcefully grasp something. (F.F. No.
30; Board’s Op. at 9.)
Ultimately, Dr. Kann opined that Claimant had not lost the use of either
hand for all practical intents and purposes, with the exception of Claimant’s left thumb
and index finger. In reaching this determination, Dr. Kann cited Claimant’s full range
of motion of his wrists and fingers, functional grip strength, and normal nerve function
in two out of three nerves. Further, Dr. Kann testified that he did not agree that
Claimant suffered a disability to his arms that was separate and apart from the wrist
level of his hands, explaining that he did not believe that Claimant’s skin grafts created
a disability in and of themselves, since they were well-healed. While Dr. Kann did
agree with Dr. Kang that skin grafts tend to be less durable than native tissue, he opined
that they do not create a functional impairment. (F.F. Nos. 31-32; Board’s Op. at 9-
10.)
On February 22, 2016, the WCJ issued his decision and order granting
Claimant’s review petition and awarding Claimant benefits for the loss of his left thumb
and index finger. The WCJ accepted the testimony of Dr. Kann over that of Dr. Kang,
finding that Dr. Kann credibly explained that, while Claimant had lost the use of his
left thumb and index finger, the remainder of his left hand was functional. The WCJ
also made note of Dr. Kann’s testimony that there was normal functioning of the radial
and ulnar nerves, which are responsible for fine motor control, and that Claimant had
control of his hand and fingers, so long as he watched what he was doing to compensate
8
for the lack of sensation due to the bilateral median nerve injury. The WCJ explained
that he was “persuaded by the testimony regarding the things the Claimant is able to
do with his left pinky, including in tandem with the right pinky.” (F.F. No 33.) The
WCJ continued, “It makes sense that the Claimant uses his pinky fingers because they
have complete sensation and do not require him to look to see what he is doing.” Id.
The WCJ stated that he was “further persuaded by the testimony of the Claimant’s wife
when she described the Claimant twisting the cap off a bottle of water by using his
right pinky,” stating that “[c]learly, the Claimant would have to secure the bottle with
the remaining three fingers of his left hand to remove the cap with his right.” Id. The
WCJ also found notable Dr. Kang’s acknowledgement that the purpose of the left index
finger amputation was to facilitate cylindrical grasp. Id. Finally, the WCJ found that
Dr. Kann’s testimony “fairly and accurately” described Claimant’s functional abilities,
which did not support a finding of the complete loss of use of either hand for practical
intents and purposes. Id.
Claimant appealed the WCJ’s order. On September 20, 2017, the Board
issued its decision and order affirming the decision of the WCJ. Claimant filed the
present petition for review with this Court1 raising the following four issues for our
review: (1) whether the WCJ erred in relying upon an independent medical examiner,
“who misstated the effect of a completely destroyed median nerve and disregarded the
testimony of four physicians establishing a practical loss of use”; (2) whether
Claimant’s alleged loss of use of four fingers and to the body of the hand itself
constitutes loss of use of the hand for all practical intents and purposes; (3) whether the
1
Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow Lakes
Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa. Cmwlth.
2006).
9
WCJ erred in failing to find a disability of Claimant’s hands separate and apart from
the acknowledged injuries; and (4) whether the WCJ erred by failing to discuss or
address five exhibits, including three medical reports purportedly establishing loss of
use, photographic evidence, and video surveillance depicting loss of functional use.
(Claimant’s brief at 4.)
Discussion
In a workers’ compensation proceeding, the WCJ is the ultimate fact
finder and is the sole authority for determining the weight and credibility of evidence.
Lombardo v. Workers’ Compensation Appeal Board (Topps Co.), 698 A.2d 1378, 1381
(Pa. Cmwlth. 1997). “As such, the WCJ is free to accept or reject the testimony of any
witness, including medical witnesses, in whole or in part.” Id. We will not disturb the
WCJ’s findings on appeal when they are supported by substantial, competent evidence.
Greenwich Collieries v. Workmen’s Compensation Appeal Board (Buck), 664 A.2d
703, 706 (Pa. Cmwlth. 1995). “Substantial evidence is such relevant evidence which
a reasonable mind might accept as adequate to support a finding.” Berardelli v.
Workmen’s Compensation Appeal Board (Bureau of Personnel, State Workmen’s
Insurance Fund), 578 A.2d 1016, 1018 (Pa. Cmwlth. 1990).
Moreover, where both parties present evidence, it is irrelevant that the
record contains evidence that supports a finding contrary to that made by the WCJ;
rather, the pertinent inquiry is whether evidence exists that supports the WCJ’s
findings. Hoffmaster v. Workers’ Compensation Appeal Board (Senco Products, Inc.),
721 A.2d 1152, 1155 (Pa. Cmwlth. 1998).
Additionally, on appeal, all inferences drawn from the evidence shall be
taken in favor of the party prevailing before the WCJ. Krumins Roofing and Siding v.
10
Workmen’s Compensation Appeal Board (Libby), 575 A.2d 656, 659 (Pa. Cmwlth.
1990).
With regard to his first argument, Claimant asserts the WCJ erred in
finding that Claimant had not lost complete use of both hands for all practical intents
and purposes and, more specifically, erred by relying on Dr. Kann’s testimony in
reaching that determination. Claimant devotes much of his brief to reciting portions of
his own testimony, as well as the medical opinions of Dr. Kang, which he asserts
establish facts that the WCJ should have found, including that Claimant lost all median
nerve motor and sensory function. Claimant makes these arguments despite the fact
that the WCJ specifically found Dr. Kann more credible than Dr. Kang. As this Court
has repeatedly held, a “WCJ is free to accept or reject the testimony of any witness,
including medical witnesses, in whole or in part,” Lombardo, 698 A.2d at 1381, and
“[u]nless made arbitrarily or capriciously, a WCJ’s credibility determinations will be
upheld on appeal.” Dorsey v. Workers’ Compensation Appeal Board (Crossing Constr.
Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006). As discussed more fully below, we
cannot agree that the WCJ acted arbitrarily or capriciously in finding Dr. Kann’s
testimony credible.
Claimant likewise emphasizes the opinion of Dr. Tucker in his July 18,
2013 report, which stated, inter alia, that Claimant had no useful sensation or motor
function in either hand; however, Claimant did not introduce testimony from Dr.
Tucker, and Dr. Tucker’s report was only referenced insofar as Dr. Kann and Dr. Kang
were asked to express their opinions on it, the former of whom disagreed with its
findings. As such, Claimant is simply directing the Court to hearsay evidence in the
record with which the more credible medical witness disagreed.
11
The same can be said for Claimant’s argument that, “in contrast to Dr.
Kann,” other doctors made findings more favorable to Claimant, including Elizabeth
Dunmore, M.D., who wrote a social security disability report on Claimant stating that
he had no use of his left hand and partial use of his right, and Dr. Goldstrohm, who
authored an independent medical evaluation report stating that Claimant’s loss of
sensation limits his ability to do “many things.” (Claimant’s brief at 17.) The fact that
there is contrary medical evidence in the record simply does not equate to there being
a lack of substantial evidence supporting the WCJ’s findings. Empire Steel Castings,
Inc. v. Workers’ Compensation Appeal Board (Cruceta), 749 A.2d 1021, 1024 (Pa.
Cmwlth. 2000) (“[I]t does not matter that there is evidence in the record which supports
a factual finding contrary to that made by the WCJ, rather, the pertinent inquiry is
whether there is any evidence which supports the WCJ’s factual finding. It is solely
for the WCJ, as the factfinder, to assess credibility and to resolve conflicts in the
evidence.” (internal citations omitted)).
Claimant also asserts, inaccurately, that Dr. Kann based his opinion solely
on the Jamar grip strength test, emphasizing that Dr. Kann “did not view the video
surveillance of [Claimant]’s activities[,] did not ascertain [Claimant]’s level of use of
his hands during the exam[,] did not try to observe [Claimant] dress [or] undress, did
not ask [Claimant] to handle money, comb his hair, pull up his pants, observe if
[Claimant] was wearing laces on his shoes, wore a button down shirt, or ascertain who
completed the paper work [sic] for the exam.” (Claimant’s brief at 19.) Nonetheless,
even if Claimant’s allegations were true, Claimant is simply expressing disagreement
with the evidentiary weight and persuasive value the WCJ assigned to Dr. Kann’s
testimony, and it is well-settled that it is solely for the factfinder, and not this Court, to
make such determinations. Hoffmaster, 721 A.2d at 1156. Furthermore, Dr. Kann
12
explained that he came to the conclusion that Claimant had not lost the use of his hands
for all intents and purposes after obtaining a history from Claimant, reviewing
Claimant’s medical records, and performing a physical evaluation of Claimant, during
which he observed that Claimant had a full range of motion in his wrists and remaining
fingers, as well as a functional grip, and normal functioning in two of his three nerves.
Dr. Kann emphasized that lack of sensation on the palmar side of Claimant’s fingers
did not equate to a lack of use of those fingers. (R.R. at 256a, 262a.) Instead, Dr. Kann
noted that Claimant would simply have to watch his fingers as he performed tasks
because he would be unable to rely upon tactile sensation to guide him, observing that
Claimant’s use of his right thumb, which lacked palmar sensation, to work a remote
control was a good example of this. Id. at 262.
When viewing this testimony in the light most favorable to Employer, we
cannot agree that the WCJ’s reliance upon this testimony was arbitrary, as Dr. Kann
thoroughly explained the basis of his opinions and identified the evidence that he relied
upon in reaching them. Furthermore, we note the WCJ’s explanation for his credibility
finding: the WCJ stated that he was persuaded by Dr. Kann’s testimony because it was
supported by other testimony, including Claimant’s wife’s observation that Claimant
would use his right pinky finger to twist the cap off of water bottles, noting that in order
to do so, Claimant would use the fingers of his left hand to secure the bottle. The WCJ
stated that Claimant’s use of his pinky fingers in such a manner made sense because
they have complete sensation and would not require him to look to see what he was
doing. As such, we disagree with Claimant’s assertion that the WCJ’s reliance upon,
and credibility determination of, Dr. Kann’s testimony was arbitrary or capricious.
Relatedly, in his second argument, Claimant contends that the WCJ erred
in concluding that “residual function of a single digit in a hand (the pinky) precludes a
13
loss of use finding of the entire hand.” (Claimant’s brief at 23.) However, the WCJ
made no such finding.
When a claimant alleges that his injury has resolved into a
specific loss, he has the burden of proving that he has
permanently lost the use of his injured body part for all
practical intents and purposes. A specific loss requires more
than just limitations upon an injured worker’s occupational
activities; a loss of use for all practical intents and purposes
requires a more crippling injury than one that results in a loss
of use for occupational purposes. However, it is not
necessary that the injured body part be one hundred percent
useless in order for the loss of use to qualify as being for all
practical intents and purposes. Whether a claimant has lost
the use of a body part, and the extent of that loss of use, is a
question of fact for the WCJ. Whether the loss is for all
practical intents and purposes is a question of law.
Miller v. Workers’ Compensation Appeal Board (Wal-Mart), 44 A.3d 726, 728 (Pa.
Cmwlth. 2012) (quoting Jacobi v. Workers’ Compensation Appeal Board (Wawa, Inc.),
942 A.2d 263, 267-68 (Pa. Cmwlth. 2008) (internal citations omitted)).
Here, the WCJ did not find that residual function in one finger “precluded”
a finding of specific loss of the hand. To the contrary, the WCJ stated that, in this
particular case, he was not persuaded that Claimant had lost complete use of both hands
for all practical intents and purposes. In so finding, the WCJ relied upon what he
deemed to be credible testimony from Dr. Kann, as well as supporting testimony from
Claimant and his wife. Upon thorough review of the record and accepting the WCJ’s
credibility determinations, we agree with the WCJ that Claimant’s evidence was not
sufficient to establish a permanent loss of use for all practical intents and purposes.
While Claimant testified to numerous things he is unable to do, he also testified as to
his ability to perform most activities of daily living, including his ability to comb his
hair, clean himself, drive his truck, including operate the headlights, power windows,
14
and turn signals, pay for gas and merchandise, feed himself, sign his name, button his
pants, use keys to get into his house and so forth. When considering this testimony in
light of Dr. Kann’s medical testimony regarding Claimant’s range of motion and
abilities, we cannot agree that, as a matter of law, Claimant has sustained a specific
loss of both hands for all intents and purposes. See Wise v. Workers’ Compensation
Appeal Board (City of Philadelphia), 810 A.2d 750 (Pa. Cmwlth. 2002) (upholding a
WCJ’s finding that there was no specific loss of the hand where the claimant could
carry things such as cigarettes and soda, drive automatic transmission cars, carry up to
10 pounds, although with difficulty, write his name, and dress himself); Irwin
Sensenich Corp. v. Workmen’s Compensation Appeal Board, 327 A.2d 644, 646 (Pa.
Cmwlth. 1974) (Where a claimant’s medical expert testified that the claimant had lost
the use of his leg for all intents and purposes as far as his occupation was concerned,
but stated that he was still capable of using his leg for other purposes, we held that
“Appellant herein discredited his own case,” and denied specific loss benefits.).
In his third argument, Claimant again contends that there is “unequivocal”
evidence in the record establishing that he suffered a disability and “it was an error for
the WCJ not to issue a finding of fact regarding a disability separate and apart whether
it be to the left hand, right hand, left wrist, right wrist, left upper extremity or right
upper extremity.” (Claimant’s brief at 25.) Claimant, once again, recites the testimony
of Dr. Kang, asserting that there is “unequivocal” evidence that the loss of Claimant’s
median nerves affects the motor function in his bilateral forearms and wrists. Id. at 26.
For the reasons set forth above regarding the WCJ’s credibility and weight of evidence
determinations, we reject this argument. Further, we note that “the WCJ may reject the
testimony of any witness in whole or in part, even if that testimony is uncontradicted.”
Hoffmaster, 721 A.2d at 1156. With regard to a finding of separate disability, we agree
15
with the Board that no such finding was necessary. The question of whether or not
there was a disability separate and apart from the specific loss of the hands would only
have been relevant if the WCJ found a specific loss of both hands, which was not the
case here.
In his final argument, Claimant argues that the WCJ did not render a
reasoned decision because he failed to specifically address several items of evidence,
including the medical reports of Dr. Tucker, Dr. Goldstrohm, and Dr. Dunmore, two
photographs of Claimant’s injuries, and video surveillance of Claimant kicking a ball
with his dogs. We disagree.
While a WCJ must render a “reasoned decision containing findings of fact
and conclusions of law based upon the evidence” that “clearly and concisely states and
explains the rationale for the decisions,” 77 P.S. §834,2 a “reasoned decision does not
require the WCJ to give a line-by-line analysis of each statement by each witness,
explaining how a particular statement affected the ultimate decision,” Acme Markets,
Inc. v. Workers’ Compensation Appeal Board (Brown), 890 A.2d 21, 26 (Pa. Cmwlth.
2006). To the contrary, a decision is reasoned if it allows for adequate review by this
Court under applicable review standards. Daniels v. Workers’ Compensation Appeal
Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003). Here, the WCJ rendered
an opinion that contained sufficient explanation for his findings of fact and conclusions
of law, including an explanation as to why he found particular testimony credible, such
that meaningful appellate review was possible. Furthermore, as the Board noted, “the
WCJ summarized the testimony of the medical experts, who referred to the medical
records at issue. The WCJ’s summarization of the evidence demonstrate[d] his grasp
of the evidentiary record.” (Board’s Op. at 13.)
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834.
16
In conclusion, while the Court is certainly sympathetic to Claimant’s
condition and the extent of his injuries, given the aforementioned facts and credibility
determinations, we are constrained to affirm the WCJ’s decision granting the
Claimant’s review petition and awarding specific loss benefits for the loss of the left
thumb and first finger. Accordingly, for the reasons set forth above, the order of the
Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Parks, :
Petitioner :
: No. 1444 C.D. 2017
v. :
:
Workers’ Compensation Appeal :
Board (Ayers Line Construction, Inc.), :
Respondent :
ORDER
AND NOW, this 16th day of August, 2018, the order of the Workers’
Compensation Appeal Board, dated September 20, 2017, is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge