Fried, Kane, Walters, Zuschlag and Grochmal 625 Stanwix Street, Suite 1404
Pittsburgh, Pennsylvania 15222
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THE CLAIMANT MUST ESTABLISH A LOSS OF USE VIA COMPETENT
AND CREDIBLE MEDICAL EVIDENCE OF A PERMANENT LOSS
FOR ALL PRACTICAL INTENTS AND PURPOSES

In Jacobi v. WCAB (Wawa, Inc.) (Pa. Cmwlth. 02-12-08), the Appeal Board correctly reversed the workers’ compensation judge’s decision granting the claimant’s Petition for Review of Benefits Payable as a result of the original work injury. While employed as a truck driver/deliverer, the claimant caught his fingers in a freight elevator door. Notice of Compensation Payable described the injury as a crush injury to claimant’s right index and middle fingers. Temporary total disability benefits were paid through claimant’s date of return to work. The claimant filed a subsequent Review Petition alleging a loss of use of the right middle finger following a surgical procedure. The claimant actually had three surgeries. In the last procedure, the distal joint was fused and a metal screw was inserted.

The claimant testified regarding the impact of the loss of strength and range of motion of his middle finger with activities of daily living. He also described his limitations while performing his regular work duties. The claimant presented medical reports which indicated that claimant did well following the surgery and his release to return to his full-duty work without restrictions. The claimant had slight decreased range of motion of the finger, with occasional pain and no tenderness. The workers’ compensation judge awarded loss of use benefits based upon claimant’s testimony regarding his inability to use his finger to perform his job duties and the majority of his activities of daily living.

The Appeal Board reversed the award, as claimant’s medical evidence did not meet the required standard proof "for all practical intents and purposes." The Commonwealth Court agreed, a claimant must have a permanent loss of use for all practical intents and purposes in order to qualify for specific loss benefits. Although claimant testified regarding his numerous limitations and difficulties, the medical report merely stated that claimant would have residual permanent impairment relative to his motion of the finger. The physician did not utilize the loss of use standard. Importantly, that opinion was rendered prior to the final surgical procedure. Although the courts have looked to claimant’s testimony and the workers’ compensation judge’s personal observation of an injured extremity for support of a finding of loss of use, there must be medical evidence to support that finding.