Workers’ Compensation and Specific Loss: The Medical Evidence Must Establish Permanence

September 13, 2017

by Douglas Wayne

High Swartz is pleased to be able to report a successful appellate defense result for a Workers’ Compensation defendant in a case where a worker claimed a work-related specific loss.   Due to our efforts, an incorrect legal conclusion initially reached by a Workers’ Compensation Judge was successfully reversed on appeal.

In Pennsylvania, injured workers who are totally disabled and unable to work are entitled to both wage and medical benefits.   An injured worker who sustains permanent above-the-clavicle scarring or the permanent loss of use of a body part may also seek what are called “specific loss benefits.”   A claimant who can prove permanent above-the-clavicle scarring or the permanent loss of a body part can receive a lump sum of additional weeks of benefits pursuant to a schedule set forth in the Pennsylvania Workers’ Compensation Act.

In Morocho v. Workers’ Compensation Appeal Board (Home Equity Renovations, Inc.), No. 1393 C.D. 2016 (Pa.Cmwlth. August 3, 2017), the claimant asserted he had sustained a permanent loss of use of his right index finger in a construction accident.  The Workers’ Compensation Judge determined that the claimant had sustained the permanent loss of use of his right index finger for all intents and purposes, and awarded specific loss benefits.   This ruling was overturned by the Workers’ Compensation Appeal Board, which ruled that the claimant’s medical expert had not adequately addressed the issue of whether the claimant’s right index finger was permanent.

The claimant appealed the Board’s reversal to the Commonwealth Court. The Commonwealth Court accepted the arguments raised on behalf of the employer that the medical evidence presented by the claimant was not adequate to support a finding of permanent injury.  The Commonwealth Court agreed with the employer’s argument that the claimant’s medical evidence did not explain the factual significance of the doctor’s diagnosis as they related to the permanence of the claimant’s right index finger injury.   A statement by the claimant’s doctor that the claimant “has effectively lost function of his index finger at this time for all practical intents and purposes” was rejected as a legal conclusion that did not constitute factual medical evidence.   The Commonwealth Court found that “the distinction must be made between factual medical evidence which can constitute substantial medical evidence to support the WCJ’s findings and legal conclusions which do not constitute such evidence.  See slip opinion at p. 8.

As the claimant’s medical evidence did not contain facts regarding the permanency of the finger injury, the Commonwealth Court ruled that it was improper for the Workers’ Compensation Judge to infer permanence.  “Without evidence in the record concerning permanency, one can only speculate on this question, which neither the WCJ nor this Court may do.  It is Claimant’s responsibility as part of his burden of proof to elicit information about future functionality of his finger so that there is a factual underpinning from which one could conclude that is injury is permanent.”  See slip opinion at 8-9.   The Commonwealth Court then concluded that the claimant had not carried his burden of proving that he had sustained a specific loss of use of his right index finger.   Moreover, the Court denied the claimant’s request for a remand to attempt to establish permanency, finding that a remand was not appropriate where the claimant had been afforded a sufficient opportunity to present evidence during the initial proceedings.  Accordingly, the Appeal Board’s order reversing the WCJ’s grant of specific loss benefits was affirmed by the Commonwealth Court.

The Morocho decision has several important lessons.  A claimant who is asserting a specific loss must make sure that there is direct (as opposed to speculative) medical evidence made of record supporting a finding that the claimed injury is permanent.  A claimant’s testimony about permanence can support a doctor’s opinion, but is unpersuasive unless appropriate competent medical evidence is first presented.  A claimant cannot rely on a remand by the appellate courts for the opportunity to present necessary medical evidence that was not presented during the initial proceedings.  For the employer, the statutory elements of a specific loss claim must be carefully examined and the claimant put to presenting adequate proof of each and every element necessary to establish a specific loss claim.

High Swartz has considerable experience in defending employers in the defense of workers’ compensation claims.  We are proud of our record and results.  While past results are not a guarantee of future success, we would welcome a chance to put our workers’ compensation attorneys to work for your business.  If you have any questions about workers’ compensation, please contact a High Swartz attorney.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

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