           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jesus Rivera,                                  :
                                               :
                             Petitioner        :
                                               :
              v.                               :   No. 795 C.D. 2015
                                               :
Workers’ Compensation Appeal                   :   Submitted: October 16, 2015
Board (Kraft Foods, Inc.),                     :
                                               :
                             Respondent        :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge1
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                     FILED: February 10, 2016

       Jesus Rivera (Claimant) petitions for review of that part of the Order of the
Workers’ Compensation Appeal Board (Board) reversing the Workers’
Compensation Judge’s (WCJ) decision finding that Claimant sustained injuries
separate and apart from the specific loss of Claimant’s two fingers and awarding
ongoing temporary total disability benefits for those separate injuries.2 On appeal,


       1
          This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.

       2
         The Board affirmed the WCJ’s decision finding that Claimant had a specific loss of his
small and ring fingers and affirmed the award of specific loss benefits, but modified the amount
of such benefits. Claimant does not challenge these determinations in his appeal to this Court.
Claimant argues that the Board exceeded its scope of review by impermissibly
substituting its interpretation of the record evidence for that of the WCJ.
Discerning no error, we affirm.


       On November 8, 2010, Claimant injured his right small finger in the course
of his employment, which Kraft Foods (Employer) accepted as a torn tendon.3
Claimant underwent surgery to repair the tendon and developed an infection at the
surgical site. Several additional surgeries to Claimant’s hand, wrist, and forearm
attempted to repair his injured tendon and resolve the infection, but they were
unsuccessful and Claimant developed a second infection. Ultimately, Claimant’s
small finger, the associated bone structure down to his wrist, and half of his
adjacent ring finger to the middle joint (PIP joint) were amputated in September
2011 to stop the infection from spreading. Additionally, “[s]ince the amputations,
Claimant’s [long4] finger remains [bent] at a ninety-degree angle.”                 (WCJ
Decision, Findings of Fact (FOF) ¶ 1(e).) Pursuant to a Functional Capacity
Evaluation conducted on January 10, 2012, Claimant “was deemed valid for light
use of the right hand without repetitive motion,” and “was placed to permanent
light duty restrictions with no repetitive use of the right hand and no lifting over 20
pounds” on March 20, 2012. (FOF ¶¶ 2(h), 3(h).) Employer filed a Modification
Petition (Petition) on December 24, 2012, alleging that Claimant’s work injury had



       3
        Employer accepted the injury in a Notice of Temporary Compensation Payable, which
converted into a Notice of Compensation Payable.

       4
           The WCJ’s findings refer to Claimant’s long or middle finger interchangeably. We
refer to it as the long finger.

                                            2
resolved into a specific loss. Claimant denied the Petition’s material allegations,
and the matter was assigned to a WCJ.


      In support of its Petition, Employer offered the deposition testimony of Jack
Abboudi, M.D., a board-certified orthopedic surgeon with qualification in hand
surgery, who examined Claimant on September 21, 2012. After taking a history of
Claimant’s injury and treatment, Dr. Abboudi agreed that the amputation was the
appropriate method of treating Claimant. During that examination, “Claimant[:]
complained of pain on the small finger side of his right hand and forearm”;
indicated that his sensation was normal in his thumb, index and long fingers, and
normal range of motion in his thumb and index fingers; and was unable to extend
his long finger normally. (FOF ¶ 2(i).) According to Dr. Abboudi, there was no
evidence of “any neuromatous formation or any contact sensitivity” in Claimant’s
right hand and there was no explanation for Claimant’s assertions of “significant
pain on the small finger side of Claimant’s hand.” (FOF ¶ 2(j).) Dr. Abboudi
opined that Claimant “has no meaningful function of the ring finger and the small
finger is a total loss.” (FOF ¶ 2(l).) He further “explained that the tendons for the
small, ring, and [long] fingers are all attached to the same muscle so surgery on the
tendons for the ring and small fingers would affect the long finger.” (FOF ¶ 2(m).)


      In opposition to the Petition, Claimant testified about his employment
history, how he was injured, and his medical treatment that led to the amputation
of his small finger and half of his ring finger. Claimant stated that his long finger
is bent at a ninety-degree angle. According to Claimant: he can pick things up
with his index finger “but he cannot pick anything up with the middle finger and


                                         3
thumb”; he is unable to carry heavy objects; he has pain and numbness when using
his right hand; and he cannot grip. (FOF ¶ 1(f).) Claimant testified that “using the
bathroom is a challenge,” his wrist is very stiff, and he experiences forearm pain.
(FOF ¶ 1(f).)


      Claimant also offered the deposition testimony of his treating physician
Randall Culp, M.D., who is board-certified in hand and upper extremity surgery.
Dr. Culp described his treatment of Claimant, which began in February 2011, when
Claimant came to him complaining of continued stiffness and pain in his small and
ring fingers. Dr. Culp performed several surgeries on Claimant’s hand and wrist in
an attempt to resolve these issues, but after Claimant developed an infection, Dr.
Culp recommended the amputations to prevent the infection from spreading. Dr.
Culp explained that one of the surgeries removed a tendon from Claimant’s wrist
to place in Claimant’s small finger. (Culp’s Dep. at 12, 14-15, R.R. at 56a-57a.)
He further testified that, when he performed the amputation, he removed part of the
palm and sutured nerves together in an attempt to minimize any neuromas that
might develop, both of which would have caused Claimant to experience pain
whenever he attempted to grasp something hard. (Culp’s Dep. at 16, 20-21, R.R.
at 57a-58a.) Dr. Culp explained that the small, ring, and long fingers share “the
same muscle belly” and that “once you start reconstructing tendons to the small
and ring finger, you’re looking at issues with the [long] finger as well because they
have the same muscle.” (Culp’s Dep. at 12, 14-15, R.R. at 56a-57a.) Dr. Culp
stated that he advised Claimant, prior to the amputations, that Claimant would have
issues with his long finger due to that surgery. (Culp’s Dep. at 17, 34, R.R. at 57a,
62a.) Although Claimant underwent physical therapy, he did not regain full range


                                         4
of motion in what remains of his ring finger and “continues to have problems with
his [long] finger,” which Claimant cannot straighten. (FOF ¶ 3(g), (k).) According
to Dr. Culp, “Claimant complained of hand pain, ring and [long] finger drooping
and poor grip strength” on May 7, 2013, and, for the first time on June 18, 2013,
Claimant complained of palm sensitivity. (FOF ¶ 3(i)-(j).) Dr. Culp opined that
“Claimant sustained more injuries than just the amputation of his fingers. His long
finger and a neuroma are involved. It is very difficult to objectively tell what is
going on with a neuroma.” (FOF ¶ 3(l).) Dr. Culp stated that there was nothing
else he could do for Claimant.


      The WCJ found Claimant’s testimony credible and persuasive, and accepted
Dr. Culp’s testimony as credible and persuasive in part because he is Claimant’s
treating physician and actually performed the amputations. However, the WCJ did
not accept Dr. Culp’s testimony about Claimant developing a neuroma, finding it
equivocal.   The WCJ rejected Dr. Abboudi’s testimony as not credible or
persuasive to the extent it conflicted with Dr. Culp’s because Dr. Abboudi
examined Claimant once and provided confusing explanations.                Based on the
credited testimony, the WCJ found the following:

      9. It is undisputed that, in addition to the accepted work injury of a
      torn tendon in the right small finger, Claimant developed an infection
      on two occasions that resulted in the need to amputate his small
      finger, part of his palm and roughly half of his ring finger.

      10. It is undisputed that this is not the normal outcome for an
      individual with a torn tendon.

      11. It is undisputed that, as a result of the two infections, the
      amputation . . . was the proper course of action.

      12. It is undisputed that Claimant’s small finger is a total loss.
                                          5
      13. It is undisputed that Claimant’s ring finger was amputated to his
      PIP joint.

      14. It is undisputed that the small finger, ring and [long] fingers all
      connect to the same muscle group in the hand and when surgery is
      performed on any of these fingers, it [a]ffects the others.

      15. The infections Claimant developed and the amputation of his
      right small finger, part of his palm and roughly half of his ring finger
      as well as loss of some function of the [long] finger are injuries
      separate and apart from his original work injury of a torn tendon in the
      right small finger.

      16. Employer met its burden of proving Claimant’s small finger and
      half of his ring finger have resolved into a specific loss. However,
      Employer failed to meet its burden of proving that Claimant sustained
      no other injuries separate and apart from the original work injury of a
      torn tendon of the right small finger.

      17. Claimant’s injury shall be described as specific loss of the entire
      small finger and half of the ring finger on the right hand; as well as
      pain and numbness on the small ring finger side of the right hand,
      pain, numbness and loss of range of motion in the remaining half of
      the ring finger on the right hand and contracture to the long finger of
      the right hand resulting in loss of grip strength.

      18. Claimant remains totally disabled from his pre-injury job as a
      result of the pain and numbness on the small finger side of the right
      hand, pain, numbness and loss of range of motion in the remaining
      half of the ring finger on the right hand and contracture to the long
      finger of the right hand resulting in loss of grip strength.

(FOF ¶¶ 9-18.) The WCJ awarded Claimant a six-week healing period and fifty
weeks of benefits for his small finger and a six-week healing period and twenty
weeks of benefits for the loss of half of his ring finger.       Further, the WCJ
concluded that Claimant was “totally disabled from his pre-injury job” and was

      entitled to ongoing temporary total disability benefits for the pain and
      numbness on the small finger side of the right hand, pain, numbness
      and loss of range of motion in the remaining half of the ring finger on
                                         6
       the right hand and contracture to the long finger of the right hand
       resulting in loss of grip strength which are injuries separate and apart
       from Claimant’s original work injury or the specific loss.

(WCJ Decision, Conclusions of Law (COL) ¶¶ 3-4.)


       Employer appealed to the Board, arguing, inter alia, that the WCJ applied
the wrong legal standard for determining whether Claimant was entitled to receive
both specific loss benefits and ongoing temporary disability benefits. Initially, the
Board held that the WCJ had erred in finding that Claimant sustained the loss of
only one half of the ring finger because, under Section 306(c)(15) of the Workers’
Compensation Act (Act),5 the amputation of Claimant’s ring finger at the PIP joint
constituted the loss of the whole finger. (Board Op. at 8.) The Board next agreed
that the WCJ had erred in finding that the amputations and infections were injuries
separate and apart from the Claimant’s original work injury (the torn tendon)
because, had it not been for the torn tendon, Claimant would not have developed
the infections that ultimately required his fingers and part of his palm amputated.
(Board Op. at 7.) The Board further found error in the WCJ’s determination that
Claimant sustained a disability that was separate and apart from the specific loss
and awarding ongoing temporary disability benefits for that disability. Noting that
the WCJ had found that it was undisputed that the small, ring, and long fingers
connect to the same muscle group and that surgery on any of these fingers would
affect the other fingers, the Board concluded that “[t]he limitations Claimant

       5
           Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513(15). Section 306(c)(15)
states, in relevant part, that “[t]he loss of any substantial part of the first phalange of a finger, or
an amputation immediately below the first phalange for the purpose of providing an optimum
surgical result, shall be considered loss of one-half of the finger. Any greater loss shall be
considered the loss of the entire finger.” Id.

                                                   7
experiences with his long finger is a result that normally follows the amputations
of the ring and small fingers, as explained by both medical experts.” (Board Op. at
8.)   Therefore, the Board reversed the WCJ’s finding that Claimant had any
injuries that were separate and apart from the specific loss and the corresponding
award for ongoing temporary total disability benefits. (Board Op. at 8-9 (citing
Richardson v. Workers’ Compensation Appeal Board (American Surfpak), 703
A.2d 1069, 1071 (Pa. Cmwlth. 1997) (stating that benefits for total disability are
allowed in addition to specific loss benefits where the specific loss injury directly
results in a disability that is separate and distinct from that which normally follows
such injury).) Claimant now petitions this Court for review.6


       Claimant argues that the Board exceeded its appellate scope of review by
reinterpreting the evidence to reverse the WCJ’s finding that Claimant had
sustained separate and distinct injuries resulting in total disability, which is
supported by substantial evidence. Claimant asserts that, contrary to the Board’s
determination, the injuries to his long finger and the pain and numbness in his palm
adjacent to where the amputations occurred are not incidental to the specific loss of
Claimant’s small and ring fingers but are separate and distinct which entitle him to
ongoing disability benefits. According to Claimant, Dr. Culp expressly testified
that while Claimant’s work-related tendon rupture began everything, that injury
has extended far beyond that damage to other parts of Claimant’s hand, (Culp’s
Dep. at 23, R.R. at 59a), and Dr. Abboudi acknowledged that the damage done

       6
          “Our review is limited to determining whether the WCJ’s findings of fact were
supported by substantial evidence, whether an error of law was committed or whether
constitutional rights were violated.” Department of Transportation v. Workers’ Compensation
Appeal Board (Clippinger), 38 A.3d 1037, 1042 n.3 (Pa. Cmwlth. 2011).

                                            8
from the initial injury has caused damage to Claimant’s neighboring fingers,
(Abboudi’s Dep. at 58-62, R.R. at 16a-17a). The record here, Claimant contends,
supports the WCJ’s finding that he suffered injuries to adjacent, but separate, parts
of his hand in addition to the specific loss of his two fingers that render him
disabled from his pre-injury position and make him eligible for temporary total
disability benefits.


      In response, Employer asserts that the Board did not exceed its scope of
review, but applied the correct legal standard to conclude that Claimant’s specific
loss injury did not result in a separate and distinct disability beyond one that
normally follows the specific loss injury. Lente v. Luci, 119 A. 132, 134 (Pa.
1922); School District of Philadelphia v. Workmen’s Compensation Appeal Board
(Pittman), 603 A.2d 266, 268 (Pa. Cmwlth. 1992). Employer maintains that the
WCJ did not apply this standard but considered whether Claimant’s “additional”
injuries were “separate and apart from his original work injury of a torn tendon in
the right small finger.” (FOF ¶ 15 (emphasis added).) Employer argues that a
review of the medical testimony conclusively establishes that there is no injury or
disability that is separate and distinct from one that naturally flowed from the
amputation of Claimant’s small finger and partial amputation of his ring finger.


      “[I]n cases of specific loss claims, the well-established rule is that an
employee who sustains an injury adjudged compensable under Section 306(c) of
the Act[7] is not entitled to additional compensation even though he may be totally
disabled by his permanent injury.” School District of Philadelphia, 603 A.2d at

      7
          77 P.S. § 513.

                                         9
268. There is, however, an “exception to the general rule [when] a claimant is
entitled to total disability benefits under Section 306(a), in addition to benefits for
specific loss under Section 306(c), where there is a destruction, derangement, or
deficiency in the organs of the other parts of the body.” Id. Under this exception,
when “a specific loss injury results in disability which is separate and distinct from
that which normally follows such an injury, and which is the direct result of the
injury, then benefits for that disability are allowed in addition to benefits for
specific loss.” Id. (emphasis added). In these cases, “it must ‘definitely and
positively’ appear that some other part of the body is affected, as a direct result of
the permanent injury.” Richardson, 703 A.2d at 1071 (quoting Lente, 119 A. at
133). The destruction or deficiency in the other body parts “does not include pain,
annoyance, inconveniences, disability to work, or anything that may come under
the term ‘all disability,’ or normally resulting from the permanent injury.” Lente,
119 A. at 134.


      There is no dispute that Claimant suffered a specific loss of his small finger
and ring finger on his right hand and, therefore, was entitled to specific loss
benefits under Section 306(c) of the Act. The question before us is whether
Claimant also is entitled to ongoing disability benefits based on a “disability which
is separate and distinct from that which normally follows” from these specific
losses. School District of Philadelphia, 603 A.2d at 268. Upon review, we agree
with the Board.


      Although the WCJ concluded, and Claimant argues, that the injuries to
Claimant’s long finger and the pain and numbness in his palm, and resulting


                                          10
disability, are separate and distinct from Claimant’s specific losses, (COL ¶ 3),
neither appear to appreciate that the disability must not be one that “normally
follows” the specific loss injury. Lente, 119 A. at 133; Richardson, 703 A.2d at
1071; School District of Philadelphia, 603 A.2d at 268. Here, the WCJ credited
Dr. Culp’s testimony, with the exception of his neuroma diagnosis, and rejected
Dr. Abboudi’s testimony only to the extent it conflicted with Dr. Culp’s. Both Dr.
Culp and Dr. Abboudi testified that, because the small, ring, and long fingers share
the same muscle belly, any action to one of these fingers would affect the
remaining fingers. (Culp’s Dep. at 12, 14, R.R. at 56a-57a; Abboudi’s Dep. at 58-
62, R.R. at 16a-17a.)    Dr. Culp testified that he informed Claimant prior to
amputating the small finger and half of the ring finger that the amputation would
impact his long finger. (Culp’s Dep. at 17, 34, R.R. at 57a, 62a.) Indeed, the WCJ
expressly found that “when surgery is performed on any of these fingers, it
[a]ffects the others.” (FOF ¶ 14 (emphasis added).) Based on the testimony of
both experts in this matter, the effect on Claimant’s long finger resulting from the
specific loss of his ring and small fingers is one that normally follows the
amputation of those fingers.     Thus, the Board did not, as Claimant argues,
reinterpret this evidence in contravention of its scope of review. It merely applied
the correct legal standard to the credited record evidence and came to the correct
legal result.


       As for Claimant’s allegations regarding the pain and numbness in his hand,
as noted above, the destruction or deficiency in the other body parts “does not
include pain annoyance, inconveniences, disability to work . . . [that] normally
result[s] from the permanent injury.” Lente, 119 A. at 134. Dr. Culp testified that,


                                        11
when he performed the amputation, he removed part of the palm to limit the
amount of pain Claimant would have when he attempted to grasp something and
sutured nerves together in an attempt to minimize any neuromas that might
develop, which would have caused Claimant additional pain. (Culp’s Dep. at 16,
20-21, R.R. at 57a-58a.) The WCJ found that Claimant had numbness in the
remaining portion of his ring finger and along the small finger side of his right
hand and that this numbness was disabling. Notably, the Board modified the
WCJ’s finding regarding the specific loss of the ring finger, concluding that
Claimant sustained a specific loss of the whole ring finger. Thus, because the
entire ring finger was deemed a specific loss, any disability related thereto cannot
be said to be occurring in another body part. Similarly, we conclude that any
complaints of numbness associated with the area in which an amputation occurred,
such as the side of Claimant’s hand, are also not a separate and distinct injury to
another body part. Therefore, the Board did not err in reversing the award of
ongoing temporary disability benefits.


      Accordingly, we affirm the Board’s Order.



                                         ________________________________
                                         RENÉE COHN JUBELIRER, Judge




                                         12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Jesus Rivera,                         :
                                      :
                       Petitioner     :
                                      :
            v.                        :   No. 795 C.D. 2015
                                      :
Workers’ Compensation Appeal          :
Board (Kraft Foods, Inc.),            :
                                      :
                       Respondent     :


                                    ORDER

      NOW, February 10, 2016, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is hereby AFFIRMED.



                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
