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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Trevor Johnson,

:

Petitioner

:

:

v.

: No. 1317 C.D. 2004

: Submitted: November 24, 2004
Workers' Compensation Appeal Board :
(Cardone Industries),

:

Respondent

:
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE
DORIS
A.
SMITH-RIBNER, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SMITH-RIBNER

FILED: March 17, 2005

Trevor Johnson (Claimant) petitions for review of the order issued by
Workers' Compensation Appeal Board (Board) that affirmed the decision of a
Workers' Compensation Judge (WCJ) denying Claimant's claim petition for
specific loss benefits. Claimant contends that the WCJ failed to apply the correct
standard for determining entitlement to specific loss benefits, that the WCJ's
decision is not supported by substantial, competent evidence and that the WCJ did
not issue a reasoned decision.

On December 26, 1990, Claimant sustained a dislocation fracture of
his right wrist while employed as a forklift operator for Cardone Industries
(Employer). Thereafter, he received total disability benefits pursuant to a notice of
compensation payable. Claimant returned to light-duty work in May/June 1991,
and his benefits were suspended. On January 6, 1992, Claimant filed a claim
petition for specific loss benefits and alleged that he had lost the use of his right

hand for all practical intents and purposes due to the work injury.

Claimant testified before the WCJ that after he returned to light-duty
work supervising forklift operators, he was required to use his dominant right hand
to write reports and notes about 10 percent of the time. He experienced some pain
and stiffness in his right fingers when he wrote constantly; suffered pain in his
right hand, wrist and forearm and numbing sensation in the interior of his right
hand; and dropped objects held with his right hand due to clumsiness in the hand.
Claimant was no longer able to perform general housework or car repairs, pull or
push objects or pull socks with his right hand, although he could tie shoelaces, hold
a fork, push buttons on a telephone or car radio, lift a gallon of milk and turn
doorknobs and handles with his right hand. He also could drive a car with an
automatic transmission, get dressed, bathe and shower daily using both hands.

Claimant presented deposition testimony of his treating physician,
Jonathan Bromberg, M.D., board certified in orthopedic surgery, who performed
surgery on Claimant's right wrist on December 27, 1990. Dr. Bromberg testified
that Claimant developed post-traumatic arthritis with persistent stiffness and pain
in his right hand, wrist and fingers after the work injury. As of his last
examination on September 24, 1992, Claimant complained of pain and stiffness in
his right wrist, and, under guidelines of the American Academy of Orthopedic
Surgeons, he suffered a 75 percent loss of use of his right hand and wrist. The
doctor opined that Claimant may need surgery in the future, although he could
perform many of his daily activities at home and at work despite his poorly
functioning right wrist, and that Claimant had lost considerable function of his
right hand for all practical intents and purposes. Dr. Bromberg agreed that
Claimant had adapted himself to performing certain activities of daily living.
2

Employer presented deposition testimony of F. William Bora, M.D.,
board certified in orthopedic surgery, who examined Claimant on February 12 and
on August 6, 1991. Dr. Bora diagnosed Claimant as suffering from post-traumatic
arthritis in his right hand, and he agreed with Dr. Bromberg that Claimant had a 75
percent loss of use of his right hand and wrist. Dr. Bora testified that Claimant
could flex his right wrist thirty degrees enabling him to do "95% of the things
people have to do in life" and did not require further medical care of his right hand.
Dr. Bora's Deposition, N.T., p. 31. Based on his examination and review of
medical records and testimony presented, Dr. Bora opined that Claimant had not
lost the use of his right hand for all practical intents and purposes.

The WCJ denied Claimant's claim petition after finding that he did not
suffer a specific loss of use of his right hand for all practical intents and purposes.
On appeal, the Board concluded that Claimant had in fact met his burden of proof
and reversed. In Cardone Industries v. Workers' Compensation Appeal Board
(Johnson) (Pa. Cmwlth., No. 71 C.D. 2000, filed October 18, 2001), the Court held
that the Board impermissibly reweighed the evidence and consequently reversed
the Board and remanded the matter to the WCJ for new credibility determinations,
findings of fact and conclusions of law and a new decision. On remand, a newly
assigned WCJ found that Claimant credibly testified regarding the limitations of
his right hand and wrist. Accepting Dr. Bora's testimony as more persuasive, the
WCJ found, however, that Claimant had not lost the use of his right hand for all
practical intents and purposes and denied the claim petition. The Board affirmed.1

1The Court's review of the Board's order is limited to determining whether constitutional
rights were violated, whether an error of law was committed, whether a practice or procedure of
the Board was not followed or whether the findings of fact are supported by substantial evidence
in the record. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Gunter v.
(Footnote continued on next page...)
3

To establish entitlement to specific loss benefits under Section 306(c)
of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as
amended, 77 P.S. §513, a claimant must prove that he or she suffered a permanent
loss of use of extremities for all practical intents and purposes. Crews v. Workers'
Compensation Appeal Board (Ripkin), 767 A.2d 626 (Pa. Cmwlth. 2001).
Generally, a permanent loss of use "for all practical intents and purposes" requires
a more crippling injury than the mere inability to perform duties of a job, but the
extremities need not be of absolutely no use. Wise v. Workers' Compensation
Appeal Board (City of Philadelphia), 810 A.2d 750 (Pa. Cmwlth. 2002). Whether
a claimant has lost the use of extremities for all practical intents and purposes is a
question of fact for the WCJ to resolve. Allegheny Ludlum Steel Corp. v. Workers'
Compensation Appeal Board (Malobicky), 753 A.2d 330 (Pa. Cmwlth. 2000).

Claimant maintains that the WCJ applied an incorrect standard for
determining a specific loss by requiring him to prove a complete loss of use of his
right hand and that the WCJ's decision is not supported by substantial, competent
evidence. The WCJ accepted Dr. Bora's opinion that Claimant still maintained the
ability to perform various daily activities with his right hand and, as a result, found
that Claimant did not meet his burden. Dr. Bora testified as follows:
No, he hasn't lost, for all practical intents and
purposes, use of his hand. There are certain things he can
and cannot do. But I think it's very clear that he has

(continued...)

Workers' Compensation Appeal Board (City of Philadelphia), 573 Pa. 386, 825 A.2d 1236
(2003). The appellate role is not to reweigh the evidence or to review the credibility of the
witnesses; rather, the appellate court must simply determine whether the WCJ's findings have the
requisite measure of support in the record as a whole. Bethenergy Mines, Inc. v. Workmen's
Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992).
4

reasonable finger motion; he has a normal thumb
essentially; he has some limited wrist motion, but he
certainly can do quite a bit with his right hand and his
contralateral left hand is normal. So, the answer is, in my
opinion, he can certainly carry with his right hand and
can participate satisfactorily in his daily living
responsibilities, such as dressing, eating, toiletry,
brushing his teeth, combing his hair and dressing. And
there are things he can do in the work place; he can
answer the phone, write, he can use a walkie-talkie, he
can file things, so there are a lot of things he can do.
Deposition of Dr. Bora, N.T., pp. 19 - 20. The record does not support Claimant's
argument that the WCJ applied an incorrect standard for proving a specific loss.
He did not require Claimant to prove a complete, or total, loss of use of his right
hand; rather he found that Claimant could satisfactorily perform many activities of
daily living with his right hand based on the credited medical evidence.
Next,
Claimant
argues
that Dr. Bora's opinion does not constitute
substantial, competent evidence to support the WCJ's decision because Dr. Bora
based his opinion, in part, on Claimant's ability to carry objects, to answer the
telephone with his right hand and to engage in daily activities of dressing, eating,
and so forth, which directly contradicts Claimant's accepted testimony. The Court
disagrees that Dr. Bora's testimony is inconsistent where Dr. Bromberg testified
that Claimant was able to lift up to five pounds with his right hand, had some
practical function with his right hand and adapted himself to perform many daily
activities, and Claimant testified that he could lift a gallon of milk and hold some
objects with his right hand and that he could drive a car, shower, bathe and get
dressed using both hands. Claimant's ability to carry some objects may be inferred
from his admitted ability to hold and lift objects with his right hand. Dr. Bora's
opinion is based not only on Claimant's testimony but as well upon an examination
of Claimant and a review of his medical records and of Dr. Bromberg's testimony.
5

In connection with Dr. Bora's failure to test Claimant's writing and
other ability to use his right hand, the Court observes that such failure only goes to
the weight to be afforded Dr. Bora's testimony rather than to the competency of
that testimony. Questions of credibility and evidentiary weight are within the
exclusive province of the WCJ to resolve, and the WCJ is free to accept or to reject
the testimony of any witness, including a medical witness, in whole or in part.
Miller v. Workers' Compensation Appeal Board (Airborne Freight), 817 A.2d 1200
(Pa. Cmwlth. 2003). Further, in making credibility determinations, the WCJ is not
required in all cases to give the treating physician's testimony more weight than the
testimony of the physician who examined the claimant for the purpose of litigation.
Jenkins v. Workmen's Compensation Appeal Board (Woodville State Hospital), 677
A.2d 1288 (Pa. Cmwlth. 1996).

Lastly, the Court concludes that the WCJ issued a reasoned decision
pursuant to provisions of Section 422(a) of the Act, 77 P.S. §834, as it allows for
adequate appellate review without further elucidation. See Higgins v. Workers'
Compensation Appeal Board (City of Philadelphia), 854 A.2d 1002 (Pa. Cmwlth.
2004) (citing Daniels v. Workers' Compensation Appeal Board (Tristate
Transport), 574 Pa. 61, 828 A.2d 1043 (2003)). The WCJ summarized the
witnesses' testimony, identified the witnesses and testimony found to be credible,
explained the reasons for rejecting Dr. Bromberg's opinion and set forth the basis
for the decision. The WCJ's decision, therefore, meets the reasoned-decision
standard. The Court finds no error in the Board's decision and accordingly affirms.

DORIS A. SMITH-RIBNER, Judge
6

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Trevor Johnson,

:

Petitioner

:

:

v.

: No. 1317 C.D. 2004

:
Workers' Compensation Appeal Board :
(Cardone Industries),

:

Respondent

:

O R D E R

AND NOW, this 17th day of March, 2005, the order of the Workers'
Compensation Appeal Board in the above-captioned matter is affirmed.

DORIS A. SMITH-RIBNER, Judge