          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carlos Urena Morocho,                  :
                 Petitioner            :
                                       :
             v.                        : No. 1393 C.D. 2016
                                       : SUBMITTED: March 24, 2017
Workers' Compensation Appeal           :
Board (Home Equity Renovations,        :
Inc.),                                 :
                Respondent             :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY JUDGE HEARTHWAY                            FILED: August 3, 2017


             Carlos Urena Morocho (Claimant) petitions for review of that portion
of the July 20, 2016 order of the Workers’ Compensation Appeal Board (Board)
reversing the decision and order of the workers’ compensation judge (WCJ) to the
extent that it granted Claimant’s claim petition and awarded specific loss benefits
for the loss of use to Claimant’s right index finger. We affirm.


             On August 28, 2012, Claimant sustained an injury to his right hand,
including injuries to his thumb, and index and middle fingers, while using a table
saw in the course and scope of his employment with Home Equity Renovations,
Inc. (Home Equity). (WCJ’s F.F. Nos. 8(g), 8(i-j), Conclusions of Law, No. 4.)
At issue before this Court is only the injury to Claimant’s right index finger.
              On May 16, 2013, Claimant filed claim petitions against Home Equity
and the Uninsured Employers Guaranty Fund (Fund), seeking workers’
compensation benefits for, among other things, a specific loss of use of his right
index finger.     (WCJ’s F.F. Nos. 3 & 5.)             (Home Equity and the Fund are
collectively referred to as Respondents.)1           Respondents filed answers denying
Claimant’s allegations with respect to the index finger. (See WCJ’s F.F. Nos. 5,
7(b).)


              At the hearing before the WCJ, Claimant testified that on August 28,
2012, while using a table saw, his right hand slipped and his thumb, index finger
and middle finger hit the blade of the table saw.2 (WCJ’s F.F. No. 8(i), R.R. at
46a, 47a.) Claimant testified that his injuries included a cut in the middle of the
underside of the index finger from the top to the first joint of the finger. (WCJ’s
F.F. No. 8(j).) Claimant testified that the doctor put two pins in his index finger,
which were removed approximately three months later. (WCJ’s F.F. No. 8(k),
R.R. at 52a-54a.) Claimant testified that he then saw Dr. Chen who prescribed
physical therapy, and that he was currently receiving therapy for his right hand
twice a week and seeing a pain management specialist. (WCJ’s F.F. No. 8(l), R.R.
at 55a.) Claimant testified that he has difficulty doing almost anything with his
right hand and that he cannot do construction work. (WCJ’s F.F. No. 8(o), R.R. at
60a-61a.) Claimant stated he has difficulty writing, playing guitar, grabbing a
glass, picking up things, getting dressed and doing other activities. (WCJ’s F.F.

         1
         The Fund has intervened in the proceedings before this Court.
         2
         We note that in his testimony, Claimant referred to his pointer or second finger, and
sometimes the WCJ used that terminology in his findings; it is apparent that these terms refer to
the index finger. We will use the term index finger to avoid confusion.


                                               2
No. 8(o), R.R. at 61a.) Claimant’s index finger appears to be bent toward the
middle finger. (WCJ’s F.F. No. 8(l), R.R. at 60a.)


                Claimant also submitted records from St. Mary’s Hospital where Dr.
Chen performed emergency surgery, which included a right index finger irrigation
debridement of open fracture; “open reduction, internal fixation index finger, P2
and P3”;3 and a distal interphalangeal fusion of index finger. (R.R. at 130a; see
WCJ’s F.F. No. 15(a), R.R. at 130a.) Dr. Chen’s postoperative diagnosis with
respect to the right index finger was “P1, P2 open fracture, partial tendon
laceration, flexor digitorum profundus greater than 50% of the tendon width.”
(WCJ’s F.F. No. 15(a)(iii), R.R. at 130a.)


                Claimant also submitted a report from Dr. Chen dated March 7, 2014.
Dr. Chen’s report indicated that after the surgery, Claimant began therapy for his
hand and that his pins were eventually removed from his index finger. (WCJ’s
F.F. No. 16(b), R.R. at 161a.) Claimant returned to see Dr. Chen on November 21,
2012, with neuropathic symptoms in his fingers and reduced motion in the index
finger. (WCJ’s F.F. No. 16(b), R.R. at 161a.) Claimant again returned to Dr. Chen
on February 27, 2013, and was developing avascular necrosis of the ulnar condyle
of the index finger and ulnar drift of the distal phalanx with substantial osteopenia
of the fragments. (WCJ’s F.F. No. 16(c), R.R. at 161a.) Claimant’s index finger
was hypersensitive at the tip. (WCJ’s F.F. No. 16(c), R.R. at 161a.) Dr. Chen
opined that Claimant “has effectively lost function of the index finger at this time
for all intents and purposes.” (R.R. at 161a, see WCJ’s F.F. No. 16(d).)

      3
          The “P” refers to a phalanx in the index finger. (See R.R. at 131a.)


                                                 3
             Employer submitted a report dated February 26, 2014 from Andrew
Sattel, M.D., who performed an independent medical examination (IME) of
Claimant on February 26, 2014. (WCJ’s F.F. No. 23(a).) Dr. Sattel opined that
Claimant has not fully recovered from his injuries but that he needs no further
diagnostic testing, therapy or surgery. (WCJ’s F.F. No. 23(i).) Employer also
submitted an addendum report from Dr. Sattel dated March 5, 2014, in which he
clarified his opinions. (WCJ’s F.F. No. 24.) Dr. Sattel opined that Claimant does
not have a total loss of the right hand. (WCJ’s F.F. No. 24(b), R.R. at 178a.) Dr.
Sattel stated that Claimant has reached maximum medical improvement, with
limited but functional mobility of the index finger. (WCJ’s F.F. No. 24(b), R.R. at
178a.)


             The WCJ found Claimant’s testimony credible and persuasive.
(WCJ’s F.F. Nos. 26, 29.) The WCJ also found Dr. Chen’s records and report
credible, and rejected Dr. Sattel’s opinions to the extent that they differed from
those of Dr. Chen. (WCJ’s F.F. No. 32.) The WCJ found that Claimant sustained
the permanent loss of use of his right index finger for all intents and purposes, and
accordingly awarded Claimant specific loss benefits, consisting of fifty (50) weeks
of compensation plus six (6) weeks of compensation for the healing period.
(WCJ’s F.F. No. 41.)


             Respondents appealed to the Board, arguing that the WCJ erred in
finding that Claimant sustained a permanent loss of use of his right index finger
and thereby awarding specific loss benefits. (Board’s decision at 11.) The Board
agreed. The Board ruled:


                                         4
                [w]hile Dr. Chen opined that Claimant has effectively
                lost function of his index finger for all intents and
                purposes, he did not address the permanence of
                Claimant’s loss. Thus, the evidence of record does not
                support a conclusion that Claimant’s loss of function in
                his index finger is permanent, and Claimant was not able
                to meet his burden of proof.


(Board’s op. at 12.) Accordingly, the Board reversed the WCJ’s award of specific
loss benefits for the injury to the right index finger.


                Claimant now petitions this Court for review4 of that portion of the
Board’s order which reversed the portion of the WCJ’s order awarding Claimant
specific loss benefits for his right index finger. Claimant argues that the Board
erred in reversing the WCJ, because Dr. Chen’s report constitutes substantial
evidence to support a finding of permanency of the loss of use of Claimant’s right
index finger.


                Although the term “specific loss” does not appear in the Workers’
Compensation Act5 (Act), it is used to describe the compensation payments to be
made where a claimant has suffered a permanent injury. Estate of Harris v.
Workers’ Compensation Appeal Board (Sunoco, Inc.), 845 A.2d 239 (Pa. Cmwlth.
2004), see section 306(c) of the Act, 77 P.S. § 513 (defining schedule of

       4
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law was committed and whether necessary findings of fact are
supported by substantial evidence. Johnson v. Workmen’s Compensation Appeal Board (Dubois
Courier Express), 631 A.2d 693 (Pa. Cmwlth. 1993).
        5
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501 - 2708.


                                              5
compensation for disability resulting from permanent injuries). When a claimant
seeks specific loss benefits for an injury, “he has the burden of proving that he has
permanently lost the use of his injured body part for all practical intents and
purposes.”6 Jacobi v. Workers’ Compensation Appeal Board (Wawa, Inc.), 942
A.2d 263, 267 (Pa. Cmwlth. 2008). “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.” Id. at
268. Whether an injury has resulted in the permanent loss of the use of a member,
such as a hand, is a question of fact. See Cartin v. Standard Tin Plate Co., 106 A.
63 (Pa. 1919) (stating that whether the condition of claimant’s hand constitutes a
permanent loss of use is a fact to be found and not a question of law); cf.
Workmen's Compensation Appeal Board v. Pizzo, 346 A.2d 588 (Pa. Cmwlth.
1975) (stating that whether disfigurement is permanent or temporary is purely a
question of fact). “Whether the loss is for all practical intents and purposes is a
question of law.” Jacobi, 942 A.2d at 268. While “case law does not specify what
evidence is required in order to prove a permanent loss of use for all practical
intents and purposes …, it is clear that a claimant must present medical evidence in
order to prove that his loss of use is permanent and for all practical intents and
purposes.” Jacobi, 942 A.2d at 269. Further, “competent medical evidence of
permanent loss of use for all practical intents and purposes must be presented
before ‘further support’ in the form of a claimant’s testimony can be considered.”
Id.



       6
          “[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.” Jacobi, 942 A.2d at 267-68.
“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.” Id. at 268.


                                                6
             Claimant argues that his medical evidence, consisting of Dr. Chen’s
records and report, constitutes substantial evidence of permanency of the loss of
use of Claimant’s index finger. Claimant argues that he sustained bone loss and
tendon loss. Claimant also asserts that the fusion of the phalanxes of the index
finger is by its very definition permanent, and that necrosis is a death of tissue
which also implies permanency. Claimant also relies on Dr. Chen’s statement that
Claimant lost function of the index finger for all intents and purposes, but
misquotes Dr. Chen’s report by stating that Dr. Chen stated that Claimant “had”
lost function of the index finger for all intents and purposes and then maintains the
word “had” implies permanency. Dr. Chen’s exact statement is that Claimant “has
effectively lost function of his index finger at this time for all intent [sic] and
purposes.” (R.R. at 161a, emphasis added.)


             On the other hand, Respondents argue that the record lacks competent
medical evidence of permanency and that Claimant’s arguments regarding
permanency are simply that – arguments and not medical evidence. Respondents
also argue that the WCJ is not permitted to substitute his own medical knowledge
in making his ruling and must make findings based on evidence in the record. In
particular, they contend that to the extent either necrosis or fusion results in a
permanent condition, that is not set forth in the medical records and the WCJ
cannot substitute his own medical knowledge in making his ruling. They also
contend that Dr. Chen’s statement that Claimant has lost the use of his finger for
all intents and purposes is a legal conclusion that has no evidentiary value and does
not constitute substantial competent evidence on which to base a factual finding of
permanency. We agree with Respondents.


                                         7
            Dr. Chen’s records and report describe Claimant’s diagnoses, but do
not detail whether these are expected to be permanent. For example, Dr. Chen’s
records and report state that Claimant underwent a “distal interphalangeal fusion,”
(R.R. at 130a), and that he was “developing avascular necrosis,” (R.R. at 161a).
However, the evidence does not explain the factual significance of these diagnoses
as they relate to the permanency of Claimant’s condition. Moreover, although Dr.
Chen stated that Claimant “has effectively lost function of the index finger at this
time for all intents and purposes,” (R.R. at 161a), this statement is not factual
medical evidence regarding permanency, but rather is simply a legal conclusion,
see Jacobi. Importantly, the distinction must be made between factual medical
evidence which can constitute substantial evidence to support the WCJ’s findings
and legal conclusions which do not constitute such evidence.


            We recognize that the party who prevailed before the WCJ is entitled
to all reasonable inferences from the evidence.           Lindemuth v. Workers’
Compensation Appeal Board (Strishock Coal Co.), 134 A.3d 111, 125, n. 12 (Pa.
Cmwlth.), appeal denied 145 A.3d 729 (Pa. 2016). However, an inference is a
conclusion that is formed from facts. See WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1158 (2002). Here, Dr. Chen’s records and report contain no facts
regarding the permanency. Rather, Claimant is asking us to assume the worst from
the diagnoses and then conclude that this supports a finding of permanency.
Inferences must be made from the evidence and not from an assumption or
speculation; sufficiency of evidence cannot be based on assumptions. 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


                                         8
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 his condition is permanent.


             Accordingly, because Claimant failed to present medical evidence to
support a finding that Claimant’s loss of function in his index finger is permanent,
Claimant is not able to meet his burden of proof, see Jacobi, and we are
constrained to affirm the Board in this regard.


             Alternatively, Claimant argues that the Board should have remanded
the case for clarification from Dr. Chen regarding the permanency of Claimant’s
loss of use of the index finger for all intents and purposes. Claimant asks this
Court to remand the matter to the WCJ for a finding relative to permanency or for
further evidence to clarify the evidence in that regard.


             Pennsylvania Rule of Appellate Procedure (Pa. R.A.P.) 1551
provides, “[t]he court may in any case remand the record to the government unit
for further proceedings if the court deems them necessary.” Pa. R.A.P. 1551 also
provides, in relevant part:

             [r]eview of quasijudicial orders shall be conducted by the
             court on the record made before the government unit. No
             question shall be heard or considered by the court which
             was not raised before the government unit except: …
             [q]uestions which the court is satisfied that the petitioner
             could not by the exercise of due diligence have raised
             before the government unit.
Pa. R.A.P. 1551(a)(3).

                                          9
             It is not necessary for this Court to remand the matter for further
proceedings. We are not satisfied that Claimant could not have, by the exercise of
due diligence, raised this question before the government unit. Our review of the
record does not reveal that Claimant was precluded from questioning Dr. Chen
about the issue of permanency, nor does Claimant argue he was precluded. Thus, a
remand is not appropriate here.      See Wynn v. Workmen’s Compensation Appeal
Board (Department of Transportation), 466 A.2d 769 (Pa. Cmwlth. 1983) (stating
remand for additional testimony is not warranted where claimant had sufficient
opportunity to present evidence).


             Accordingly, for the foregoing reasons, we affirm the Board’s order to
the extent it reversed the WCJ’s order granting Claimant’s claim petition for a
specific loss of use of the right index finger.




                                         __________________________________
                                         JULIA K. HEARTHWAY, Judge

Senior Judge Pellegrini concurs in the result only.




                                           10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carlos Urena Morocho,               :
                 Petitioner         :
                                    :
            v.                      : No. 1393 C.D. 2016
                                    :
Workers' Compensation Appeal        :
Board (Home Equity Renovations,     :
Inc.),                              :
                Respondent          :


                                  ORDER


            AND NOW, this 3rd day of August, 2017, the order of the Workers’
Compensation Appeal Board in the above-captioned matter is hereby affirmed.




                                    __________________________________
                                    JULIA K. HEARTHWAY, Judge
