Section 306(c) of the Pennsylvania Workers’ Compensation Act (Act), 77 P.S.§513, directs that compensation shall be payable for disability as a result of the permanent loss of various body parts. The subsections of Section 306(c) then describe the number of weeks of indemnity benefits a claimant shall receive as exclusive compensation for the loss of each body part.[1]

      The Pennsylvania Commonwealth Court has explained that “a specific loss is either (1) the loss of a body part by way of amputation or (2) the permanent loss of use of an injured body part for all practical intents and purposes.” Jacobi v. WCAB (Wawa, Inc.), 942 A.2d 263, 264 n.1 (Pa. Cmwlth. 2008). Very little analysis is required when a body part has been amputated. Unfortunately, there is no bright line rule as to what constitutes loss of a body part “for all practical intents and purposes.” In these situations, the Commonwealth Court has stated a claimant must present competent medical evidence regarding the specific loss before a Workers’ Compensation Judge (WCJ) may rely upon “further support” by way of a claimant’s testimony regarding his limitations or the WCJ’s own observations of the claimant’s lack of ability to use the body part. Id.

      A recent example of the loss of use analysis can be found in Miller v. WCAB (Wal-Mart), 44 A.3d 726 (Pa. Cmwlth. 2012). In this case, the claimant was alleging the specific loss of her left arm following two surgeries to her left shoulder. The claimant presented the testimony of two doctors and testified at three hearings before the WCJ. While testifying, the claimant demonstrated that she could not move her arm forward due to lack of control and she could only move her arm approximately one inch backward and one inch outward.

      The defendant presented the testimony of an IME physician, as well as the fact testimony of three of the claimant’s co-workers, who testified as to the claimant’s use of her arm while working. Furthermore, they presented surveillance footage of the claimant using her left arm in two different scenarios.[2]  The IME physician admitted that the claimant had impairment in her shoulder, but noted that the claimant retained approximately 50% range of motion of her shoulder and had normal range of motion for her left elbow, hand, and digits.

      The WCJ denied specific loss benefits finding the IME physician to be more credible and persuasive than either of the claimant’s medical experts. The WCJ found the claimant’s demonstration of the use of her left arm during testimony was inconsistent with the surveillance video depicting the claimant using her left arm and the credible testimony of her co-workers regarding the claimant’s use of her left arm. Additionally, he found that the claimant failed to prove a loss of use of the hand and forearm, which he believed were prerequisites for a loss of use of the arm.

      On appeal, the Commonwealth Court determined that the judge erred in stating that in order to prove the loss of use of an arm, a claimant had to first prove the loss of use of a hand and forearm. The court pointed out that they “have repeatedly ruled that it is not necessary that the injured body part be 100% useless in order for the loss of use to qualify as being for all practical intents and purposes. Jacobi, 942 A.2d at 268; Allegheny Ludlum Steel Corp. v. WCAB (Malobicky), 753 A.2d 330. In other words, a claimant may prove a specific loss even where she retains some use of the injured body part.” Miller v. WCAB (Wal-Mart), 44 A.3d 726, 733 (Pa. Cmwlth. 2012).

      The Commonwealth Court explained:

Our cases indicate that there is no bright-line test that may be applied, except when a claimant submits no medical evidence whatsoever. The legal determination will hinge on the specific fact findings of each case, including findings regarding credibility, the degree of the injury, and the degree of the claimant’s ability to continue to use the injured body part. The degrees to which a claimant may continue to use the hand, wrist and forearm are relevant to a determination of whether there is a specific loss of the arm, but they are not dispositive.

Miller, at 734. Despite this error of law by the WCJ, the court found that there was substantial competent evidence within the record to support the WCJ’s denial of specific loss benefits. Interestingly, they note their own viewing of the surveillance evidence “confirmed the WCJ’s observations regarding the claimant’s use of her left arm are supported by substantial competent evidence.”[3]  Id.The Court determined that based upon the credible opinion of the IME physician and the claimant’s ability to use her arm in the surveillance video, “Claimant retained meaningful use of her arm, such that we cannot conclude, as a matter of law, that she has suffered a specific loss.” Miller, at 735, emphasis added.

 

 

What It Means to You

The Commonwealth Court explained that a specific loss analysis is very fact specific and there is no bright line rule for determining specific loss unless the claimant fails to produce medical evidence of any type. When the claimant produces medical evidence, it is imperative that the defendant attempt to show through any means possible that the claimant retains meaningful use of the body part. In Miller, surveillance video evidence and testimony from co-workers clearly contradicted the claimant’s “demonstration” of her abilities during her testimony. Another option for proving a lack of impairment would be obtaining objective medical evidence by way of a Functional Capacity Evaluation.

      Whatever the allegation, the more a defendant is able to chip away at a claimant’s allegations of loss of use for all practical intents and purposes, the more likely that the WCJ or appellate tribunal will have the means necessary to deny the claim for specific loss benefits.

 

 

[1] Specific loss is an exclusive remedy and precludes consideration of any disability that normally flows from that injury. Mathies Coal Co. v. WCAB (Henry), 538 A.2d 590 (Pa. Cmwlth. 1988).

[2]The video depicted the claimant using her left arm to arrange herself while sitting in her vehicle and opening a car door with her left arm, which contradicted her testimony that she was only able to open her car door with her right arm.

[3] As a practitioner, it was satisfying to read that the Commonwealth Court took the time to watch the surveillance footage and rely upon the video as substantial competent evidence to support the WCJ’s finding.