          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Leopoldo Parra Hernandez,                       :
                       Petitioner               :
                                                :
               v.                               :   No. 1016 C.D. 2018
                                                :   Submitted: December 28, 2018
Workers’ Compensation Appeal                    :
Board (Kodak, LLC and Uninsured                 :
Employers Guaranty Fund),                       :
                      Respondents               :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                                FILED: March 1, 2019

               Leopoldo Parra Hernandez (Claimant) petitions for review of an order
of the Workers’ Compensation Appeal Board (Board) that affirmed the decision of
a Workers’ Compensation Judge (WCJ). The WCJ awarded Claimant specific loss
benefits under Section 306(c) of the Workers’ Compensation Act,1 but denied
Claimant’s petition seeking indemnity benefits in addition to the specific loss
benefits.2 Upon review, we affirm the Board’s order.




      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §513(c).

      2
        Other issues raised before the Workers’ Compensation Judge (WCJ) and the Workers’
Compensation Appeal Board (Board), including fees imposed for unreasonable contest and the
payment obligations of the Uninsured Employers Guaranty Fund (UEGF), are not before this
Court.
                                          I. Background
               In December 2015, Claimant sustained a crush injury to his right index
finger in the course of his employment with Kodak, LLC (Employer).3 Reproduced
Record (R.R.) at 249.4 He also sustained tuft fractures5 to the tips of the third and
fourth fingers of his right hand. Id. After an attempt to repair the injury to the index
finger failed, Claimant underwent amputation of his index finger at the middle joint.
Id.


               Claimant filed a claim petition seeking total indemnity benefits
beginning on the date of injury.6 R.R. at 4.

       3
          Because Employer failed to carry any workers’ compensation insurance, Claimant also
filed a claim petition with the UEGF. Reproduced Record (R.R.) at 249. No distinction between
Employer and UEGF is at issue on appeal. Therefore, this opinion treats both as “Employer” for
purposes of the legal analysis herein.

       4
          Claimant did not comply with Pa. R.A.P. 2173, which requires numbering of the pages
in the reproduced record as 1a, 2a, etc. We use Claimant’s numbering here for consistency.

      Andrew B. Sattel, M.D. (Employer’s Medical Expert) explained tuft fractures, which are
       5

common injuries seen on a daily basis:

                       Basically, that’s a little crack in the tip of the distal phalanx. You
               get your fingertip caught in a door, a window, whatever else, or the tip
               in the lawnmower or whatever it may be. A tuft fracture simply refers
               to a chip in the very tip of that distal phalanx. Those injuries we
               basically treat with either a bandage or briefly a splint. Those injuries
               we don’t worry about. They typically heal with full recoveries.

R.R. at 180-81.

       6
          Claimant also filed a separate review petition seeking to expand the nature of his injuries.
R.R. at 250. The issues raised in the review petition apparently include Claimant’s averments that
he suffers from depression and anxiety arising from the amputation. See id. at 257. The WCJ
issued his decision on the claim petition without prejudice to any issues being litigated in relation
to the review petition. Id. at 250.


                                                   2
             Employer presented the deposition testimony of its medical expert,
Andrew B. Sattel, M.D. (Employer’s Medical Expert), who is certified by the
American Board of Orthopedic Surgery with a Certificate of Added Qualification
for surgery of the hand. R.R. at 172. Claimant testified both live and by deposition.
However, Claimant offered no testimony from a medical expert. Instead, Claimant
relied on the testimony of Employer’s Medical Expert, contending that testimony
would satisfy Claimant’s burden of proof. See id. at 72, 75, 90, 96. Although
Claimant submitted medical records and a report from his treating physician, the
WCJ admitted that evidence only to the extent it corroborated the opinion of
Employer’s Medical Expert. Id. at 96, 98, 250. Claimant does not challenge the
limited admission of that evidence.


              Employer’s Medical Expert conducted an independent medical
examination (IME) of Claimant in October 2016. R.R. at 173. At that time,
Claimant was taking no medications, including pain medications, in relation to his
injuries. Id. at 175. He had some residual sensitivity in his right index finger at the
amputation site, but no hypersensitivity. Id. at 184. Employer’s Medical Expert
testified that with an amputation injury such as Claimant’s, varying degrees of
sensitivity may remain in the tip of the affected finger, and there will generally be
an ongoing need to shield the tip of the finger to minimize that sensitivity for
purposes of work. Id. at 177.


             Employer’s Medical Expert opined that Claimant reached maximum
medical improvement, although not a full recovery. Id. at 188. Claimant can
perform light to medium duty work. Id. He may not be able to tolerate using



                                          3
vibrating tools or power tools. Id. Some sensitivity to cold may occur, which may
subside over time. Id. Employer’s Medical Expert also noted some strength deficit
in Claimant’s right hand compared to his left hand, which was normal with an
amputation. Id. at 187.


             Concerning Claimant’s third and fourth fingers, Claimant testified he
had ongoing pain in those fingers, sometimes extending up his arm as far as his
elbow. Id. at 56-57. However, Employer’s Medical Expert opined that Claimant
fully recovered from the tuft fractures. Id. at 189. Had they been Claimant’s only
injuries, the tuft fractures might have justified modified duty work for a couple of
weeks, but would have required “minimal downtime.” Id. Those injuries were “a
nonissue” and did not cause any separate disability or loss of work. Id. During the
IME, Claimant did not complain of any pain in his third and fourth fingers, nor did
he complain of any pain radiating from those fingers to his forearm or elbow. Id. at
190. The IME “did not produce any pain or tingling or referred discomfort” relating
to those fingers. Id.


             The WCJ credited the opinion of Employer’s Medical Expert as
persuasive and not refuted by any opposing medical evidence submitted by
Claimant. Id. at 250. The WCJ awarded specific loss benefits relating to the partial
amputation of Claimant’s right index finger, including 50 weeks of compensation
and an additional 6 weeks for a healing period, for a total of 56 weeks of
compensation. R.R. at 249. The WCJ acknowledged the tuft fractures of Claimant’s
third and fourth fingers as separate injuries, but concluded “the injury to the index
finger was the significant operative basis for ensuing disability following the work



                                         4
incident, in contrast to the ‘separate’ work injuries.” R.R. at 250. Accordingly, the
WCJ declined to award Claimant any workers’ compensation benefits for a separate
disability. Id.


              Claimant appealed to the Board, which affirmed those portions of the
WCJ’s decision awarding specific loss benefits and denying total indemnity benefits.
Notably, the Board specifically rejected Claimant’s argument that the WCJ
capriciously disregarded unrebutted evidence. R.R. at 270. Claimant then petitioned
for review to this Court.7


                                           II. Issue
              Claimant’s sole argument before this Court is that the WCJ capriciously
disregarded unrebutted evidence demonstrating Claimant’s entitlement to total
disability benefits arising from injuries separate from the injury to his index finger.8
R.R. at 312. Claimant acknowledges that the WCJ’s decision “did summarize all of
the evidence presented.”        Pet’r’s Br. at 11.      However, he contends the WCJ
capriciously disregarded testimony of Employer’s Medical Expert that satisfied his
burden of proof. Claimant further asserts that the opinion of Employer’s Medical
Expert was equivocal.


       7
         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. Grimm v. Workers’ Comp. Appeal Bd. (Fed. Express Corp.), 176 A.3d 1045 (Pa.
Cmwlth.) (en banc), appeal denied, 189 A.3d 385 (Pa. 2018).

       8
         In his petition for review, Claimant identified a second issue concerning whether the
Board fully and adequately addressed the issues Claimant raised in his appeal to the Board. R.R.
at 282. However, he briefed only the issue of capricious disregard of evidence. Therefore, his
second issue is waived. Scrip v. Seneca, 191 A.3d 917 (Pa. Cmwlth. 2018).


                                               5
                                    III. Discussion
             The WCJ is the ultimate finder of fact in workers’ compensation cases,
with exclusive province over determinations of credibility and weight of the
evidence. Grimm v. Workers’ Comp. Appeal Bd. (Fed. Express Corp.), 176 A.3d
1045 (Pa. Cmwlth.) (en banc), appeal denied, 189 A.3d 385 (Pa. 2018). The WCJ
may accept or reject the testimony of any witness, including an expert witness, in
whole or in part. Id.


             We view the evidence in the light most favorable to the prevailing party
and give that party the benefit of all inferences reasonably deducible from the
evidence. Id. This Court’s inquiry is not whether the record contains evidence that
would support findings other than those made by the WCJ, but whether there is
substantial evidence to support the findings actually made. Id. Thus, if the record
in its entirety contains evidence that a reasonable person would find sufficient to
support the WCJ’s findings, we must uphold those findings on appeal. Id.


                        A. Specific Loss and Separate Disability
             An injured worker who suffers a specific loss of use of a body part may
not receive workers’ compensation benefits beyond specific loss compensation, even
if the specific loss also results in loss of earning capacity. Crews v. Workers’ Comp.
Appeal Bd. (Ripkin), 767 A.2d 626 (Pa. Cmwlth. 2001). However, a claimant may
receive additional compensation if he incurs a loss of earning capacity separate from
his specific loss. Id. A compensable separate loss of earning capacity may occur
where a work-related injury causes a specific loss, then later causes disability to a
separate part of the body. Id. Alternatively, it may occur where a single work-
related incident causes multiple separate and distinct injuries. Id.


                                           6
             A claimant alleging that the same injury caused both a specific loss and
a separate disability must prove the separate disability is both a direct result of the
specific-loss injury and a separate result not normally following from such an injury.
Id. Similarly, a claimant alleging multiple separate injuries from a single incident
must prove a disability separate and apart from the specific-loss injury. Id. Notably,
the separate loss a claimant must prove “does not include pain, annoyance,
inconvenience, disability to work, or anything normally resulting from the
permanent injury.” Sch. Dist. of Phila. v. Workmen’s Comp. Appeal Bd. (Pittman),
603 A.2d 266, 268 (Pa. Cmwlth. 1992).


             Here, Employer’s Medical Expert testified Claimant fully recovered
from his tuft fractures. R.R. at 189. Any residual strength deficit in Claimant’s right
hand, and any sensitivity at the amputation site, were causally connected to, and a
normal result of, the amputation of Claimant’s index finger. Id. at 187-89. There
was nothing in the record showing a causal connection between the tuft fractures and
any disability. See R.R. at 250 (WCJ found injury to index finger, not injuries to
other fingers, caused disability).


                       B. Capricious Disregard of Evidence
             According to Claimant, the WCJ noted Claimant’s failure to present
expert medical testimony, but neglected to acknowledge that Claimant could also
meet his burden through reliance on Employer’s evidence. Thus, Claimant argues
the WCJ capriciously disregarded evidence from Employer’s Medical Expert that
satisfied Claimant’s burden of proof.




                                          7
             A party alleging a capricious disregard of evidence must demonstrate
that the WCJ deliberately or baselessly disregarded apparently trustworthy evidence.
Grimm. The WCJ capriciously disregards evidence where his findings “‘reflect a
deliberate disregard of competent evidence that logically could not have been
avoided in reaching the decision ….’” Edwards v. Workers’ Comp. Appeal Bd.
(Epicure Home Care, Inc. & State Workers’ Ins. Fund), 134 A.3d 1156, 1162 (Pa.
Cmwlth. 2015) (quoting Pryor v. Workers’ Comp. Appeal Bd. (Colin Serv. Sys.),
923 A.2d 1197, 1205 (Pa. Cmwlth. 2007)). Where the WCJ considers evidence, but
rejects it as not credible or assigns it less weight than conflicting evidence, that
determination does not constitute a capricious disregard of the rejected evidence.
Grimm. Further, where there is substantial evidence in support of the WCJ’s
findings, and those findings support the WCJ’s legal conclusions, this Court will
rarely disturb those findings and conclusions on the basis of a capricious disregard
of evidence. Id. (citing Leon E. Wintermyer, Inc. v. Workers’ Comp. Appeal Bd.
(Marlowe), 812 A.2d 478 (Pa. 2002)).


             Claimant correctly asserts that he did not have to submit his own
evidence to satisfy his burden of proof, but could rely on Employer’s evidence to
support his claim petition. See SKF USA, Inc. v. Workers’ Comp. Appeal Bd.
(Smalls), 728 A.2d 385 (Pa. Cmwlth. 1999). However, to the extent the WCJ erred
in failing to expressly consider Claimant’s right to satisfy his burden of proof using
Employer’s evidence, any such error was harmless. As discussed in the next section,
Employer’s evidence failed to support Claimant’s allegation of a separate disability
arising from the tuft fractures of his third and fourth fingers.




                                           8
                              C. Medical Testimony
             In a claim petition proceeding, the claimant bears the burden of proving
all of the elements necessary to support an award, including any disability and a
causal connection between that disability and the work injury. Sw. Airlines v.
Workers’ Comp. Appeal Bd. (King), 985 A.2d 280 (Pa. Cmwlth. 2009). Where the
causal connection is not obvious, the claimant must establish it by unequivocal
medical testimony. Id.


             Expert medical testimony is unequivocal where the medical expert
provides a foundation and testifies that in his professional opinion, he believes or
thinks a fact exists.    Kimberly Clark Corp. v. Workers’ Comp. Appeal Bd.
(Bromley), 161 A.3d 446 (Pa. Cmwlth. 2016), appeal denied, 174 A.3d 1027 (Pa.
2017). Whether medical evidence is equivocal is a question of law reviewable by
this Court. Sw. Airlines. A determination of whether an expert’s opinion is
equivocal must be based on that expert’s testimony as a whole, not on a small portion
taken out of context. Liveringhouse v. Workers’ Comp. Appeal Bd. (ADECCO),
970 A.2d 508 (Pa. Cmwlth. 2009).


             Here, Claimant agrees with Employer’s Medical Expert that the crush
injury to his right index finger and resulting amputation constituted his primary
injury. Nothing in the record establishes an obvious causal connection between any
ongoing disability and the tuft fractures to Claimant’s third and fourth fingers.




                                         9
Therefore, to the extent the WCJ required unequivocal medical evidence to support
that alleged causal connection,9 the requirement was not error.


              The testimony of Employer’s Medical Expert, in context, refuted rather
than supported Claimant’s averment of a separate disability:

                    Q.    Okay. And Doctor, these tuft fractures that you
              had mentioned on his other fingers, separate from the
              amputation would those fractures cause any type of disability,
              time off work, work restrictions at all?

                      A.    Not really. I mean, if that’s your only injury and
              you’re a laborer and you have tuft fractures of a finger or two
              I’ll typically say, well, here’s a little finger splint, modified
              duty for, you know, a couple weeks. But again, these
              typically heal uneventfully with, you know, minimal
              downtime.[10]

                    Q.     Based on your examination had [Claimant]
              recovered from those - -

                      A.     Yes, yes.

                      Q.     - - other fractures?

                      A.     Yes, those are a nonissue.



       9
         The WCJ did not expressly impose such a requirement. See R.R. at 249 (twice observing
that Claimant offered no expert testimony), 250 (Claimant did not refute the testimony of
Employer’s Medical Expert with any opposing medical evidence).

       10
           It was also Claimant’s burden to demonstrate, by unequivocal medical evidence, a
disability arising from the tuft fractures lasting more than seven days, in order to establish a
compensable disability. See Watson v. Workers’ Comp. Appeal Bd. (Special People in Ne.), 949
A.2d 949 (Pa. Cmwlth. 2008). The testimony of Employer’s Medical Expert that the tuft fractures
would typically require modified duty for a couple of weeks and minimal downtime did not meet
Claimant’s burden of proof on this issue.


                                              10
R.R. at 189 (emphasis added). Thus, the testimony of Employer’s Medical Expert
demonstrated clearly and unequivocally that Claimant’s tuft fractures, considered
separately from the index finger crush injury and subsequent amputation, were
insignificant and not disabling.


               Claimant also insists that Employer’s Medical Expert testified
equivocally concerning any separate disability connected to the tuft fractures of his
third and fourth fingers. We disagree. As set forth above, Employer’s Medical
Expert provided unequivocal testimony that there was no separate disability.11 Id.


                                       IV. Conclusion
               For the above reasons, we discern no error or abuse of discretion in the
WCJ’s denial of Claimant’s request for total indemnity benefits based on injuries
separate from his specific loss. Therefore, we affirm the Board’s order.




                                             ROBERT SIMPSON, Judge




       11
           Moreover, even if the opinion of Employer’s Medical Expert were equivocal, Claimant’s
assertion of a separate disability would fail. Claimant had the burden of proving a separate
disability. Crews v. Workers’ Comp. Appeal Bd. (Ripkin), 767 A.2d 626 (Pa. Cmwlth. 2001). To
the extent he relied on medical evidence to do so, that evidence had to be unequivocal. Taulton v.
Workers’ Comp. Appeal Bd. (USX Corp.), 713 A.2d 142 (Pa. Cmwlth. 1998). Therefore, pointing
to an equivocation in the opinion of Employer’s Medical Expert would not help Claimant to sustain
his own burden. Cf. Taulton (claimant’s argument that employer failed to produce unequivocal
medical testimony in opposition to claim petition was unavailing, as it was claimant’s burden to
prove her claim, not employer’s burden to disprove it).


                                               11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Leopoldo Parra Hernandez,             :
                       Petitioner     :
                                      :
           v.                         :   No. 1016 C.D. 2018
                                      :
Workers’ Compensation Appeal          :
Board (Kodak, LLC and Uninsured       :
Employers Guaranty Fund),             :
                      Respondents     :


                                    ORDER

           AND NOW, this 1st day of March, 2019, the order of the Workers’
Compensation Appeal Board is AFFIRMED.




                                     ROBERT SIMPSON, Judge
