Part of the August 8 PBI Medical Lecture Series addressed common legal issues that arise in reference to upper extremity problems. The course materials addressed, among many other items of great interest, the Workers’ Compensation Act’s provisions regarding specific loss. While the precepts for a specific loss claim should be very familiar to the workers’ compensation practitioner, a brief review is warranted.

Under Section 306(c) of the act, compensation is payable for the permanent loss of use of an extremity of the body, either through amputation or on the basis that the loss of use of the body part is for “all practical intents and purposes.” The level of disability need not rise to 100 percent uselessness. See U.S. Steel v. W.C.A.B. (Peacock), 454 A.2d 1180 (Pa. Commw. 1983). What makes a specific loss claim unique is that any loss of earnings or earning power by the injured worker is entirely irrelevant. There is no consideration of any “disability” that may stem from the injury. See Bethlehem Mines v. W.C.A.B. (Kozlovac), 529 A.2d 610 (Pa. Commw. 1987).

If a specific loss is established, the injured worker receives a fixed number of weeks of temporary total disability benefits as categorically delineated by Section 306(c) of the act. An employee may not receive total disability benefits for wage loss and specific loss benefits for the same injury concurrently. Instead, where the injured worker is totally disabled from injuries “separate and apart” from the total loss of use of an extremity sustained in the same work accident, the temporary total indemnity benefits are received first, followed by the compensation for specific loss as set forth in Section 306(c). See Crews v. WCAB (Ripkin), 767 A.2d 626 (Pa. Commw. 2001). Disputes commonly arise when all or the vast majority of the disability appears to stem from the injured extremity exclusively.

This notion of disability that is “separate and distinct” from what would otherwise be expected from the loss of use of a body part gives rise to a substantial amount of litigation. Like any other aspect of the law, each side can paint the facts of a case in the light most favorable to it.

A common factual pattern that can arise involves a worker whose finger is either severed or crushed directly in a work accident. Depending on the degree of damage to the bones, ligaments and tissue from the accident, the case would normally begin as simply one for wage loss. Assuming the claimant could not perform his or her original job right away, he or she would receive temporary total disability benefits for wage loss and payment for medical care following the accident. As indicated above, this has no relationship to whether there is a specific loss. Even where the finger is directly severed in the accident or later amputated by a physician after salvation attempts are unsuccessful, the injured worker would be treated as simply losing wages for which he or she is entitled to compensation. Even the seemingly obvious instance of a completely missing finger requires precise medical testimony, absent an agreement of the parties.

Once the injured worker is able to resume his or her pre-injury job, albeit with a badly damaged or missing finger, his or her wage loss would end. This situation gives rise to a worker’s right to collect specific loss benefits if it can be established that the use of the finger is lost for “all practical intents and purposes,” whether it is amputated or just functionally useless.

There is a further distinction that could present itself, as disability could also flow from areas of the body apart from the extremity in question. In our example, an individual could be disabled from the damaged finger, but could also have an ancillary injury to the hand or one of the other fingers. This fact pattern would make the wage loss claim more likely to be “separate and apart” from the direct injury to the finger, potentially subject to a specific loss. If the finger amputation is considered separate and apart from the injuries causing the disability for the wage loss claim, both remedies would potentially be available. If the finger injury is the only basis for both the wage loss and specific loss claims, the potential for the injury to “resolve into” a specific loss exists. That would afford an employer credit for weeks already paid.

The Defense Perspective

In the case of the injured finger, the employer has a vested interest in seeing to it that the matter remains free of a specific loss finding if the wage loss is minimal. Although it may sound sadistic, it is not unusual for a worker with a badly damaged or missing finger to return to his or her full-duty job within a few days to a couple of weeks if the finger and fine dexterity are not integral to the job. Given that claims must be accepted or denied within 21 days, an individual could be back to work before a decision is even made on the claim.

Because Section 306(c) of the act provides for the payment of 28 to 50 weeks, depending on the finger, an employer can avoid paying an additional 45 weeks or more if it can obtain an opinion from a hand surgeon that affords the finger something other than a loss for “all practical intents and purposes,” thus setting up a defense to a specific loss. In fact, it would be theoretically possible to provide for the payment of up to 90 days of disability benefits through a notice of temporary compensation payable in an effort to refrain from paying on a specific loss and forcing the claimant to litigate the issue. After all, the “extent and duration” of disability are in question. (Tongue planted firmly in cheek.)

Another way for an employer to limit liability would be to procure the signature of the injured worker on an agreement for compensation, or a supplemental agreement, referencing the wage loss, but remaining silent or worse as to the status of the finger. Unrepresented claimants often sign such agreements, not realizing that while the agreements may be factually accurate, they leave out a potentially substantial source of compensation.

On the flip side of the coin, the same employer that would seek to limit a claim with little or no wage loss to just that, while denying a specific loss component, will often “graciously” agree to the total loss of use once the number of weeks of temporary total disability surpass the fixed number of weeks afforded by the act for the body part in question. In the case of an index finger, the award would be 50 weeks of benefits. This type of agreement is much more common because the untrained claimant would have no reason to believe a missing extremity is anything other than a “specific loss.”

If an injured worker is unable to return to his or her pre-injury job for no reason other than he or she cannot perform the job without his or her finger, it becomes necessary for the employer to solicit an opinion from a medical expert. The hope is that the doctor will opine that the previously able finger is now a loss for all practical intents and purposes. This expert opinion would set the stage for a petition seeking to “resolve” the disability into a specific loss, thus capping a claim that could have dragged on for years at 50 weeks, plus an additional statutory “healing period” of six weeks.

The Claimant’s Perspective

Obviously, the injured worker’s goal is to maximize all compensation afforded to him under the act. Given the paucity of the remedy (who among us would trade your index finger for 50 weeks of benefits), it is incumbent on the claimant’s attorney to be aware of the ways to make the best of a horrific situation.

Just as the employer will seek to limit a claim with little or no wage loss to the payment of a few weekly benefits, the claimant should always come away with at least the appropriate specific loss award provided for in the act. While 50 weeks will never adequately compensate someone for the loss of his or her index finger, it is certainly better than three weeks paid under a notice of temporary compensation payable. If it is certain there will be no future wage loss, a specific loss petition should be pursued.

Conversely, should a claimant seeking representation appear in your office with a modification petition, seeking to convert a standard disability claim into one for specific loss, all effort should immediately be made to procure an expert opinion, if one does not already exist. Ideally, a finding that the injured worker has a disability “separate and apart” from the prospective specific loss would make the litigation straightforward. In our example above, it would essentially come down to whether the hand or additional finger damage prevents the worker from performing his or her pre-injury position. In most instances, this is nothing more than a credibility determination.

The real challenge for the claimant’s attorney is when the only source of disability is the injured extremity itself. This rises to seemingly oxymoronic levels when the claimant is left arguing that an amputation is not a specific loss. However, there are a number of ways to prove it is not, the most common of which appeals to the medical condition known as a “painful neuroma.”

Dorland’s Medical Dictionary defines a neuroma as a “growth or tumor of nerve tissue.” A common residual of a missing extremity is pain. If that discomfort rises to the level of a growth or tumor of nerve tissue, it can be found, as a matter of law, to be an injury “separate and apart” from the specific loss. See Rowan v. W.C.A.B. (Anemostat Products), 426 A.2d 1304 (Pa. Commw. 1981). It can also be used to support a specific loss in the event there is not a total amputation. See Reading Tube v. W.C.A.B. (Scull), 315 A.2d 678 (Pa. Commw.1974). Either way, the possibility that a painful neuroma could be present in specific loss cases provides the initial, prima facie opposition to any employer overreach. It is incumbent on the attorney to get a full medical workup and not simply rely on lay terminology and appearances. This is especially true in light of the fact that an injured worker’s testimony alone is not legally sufficient.

Maximizing the Outcome

A case that has a potential specific loss claim will almost always turn on the facts. In particular, competent medical testimony by a trained hand surgeon is invaluable. It is incumbent on the practitioner to investigate each fact pattern in order to determine whether the requisite medical opinion exists to maximize the outcome of the client. Because unrepresented claimants are particularly disadvantaged, not being familiar with the law, it is important for the claimant’s attorney not to fall into the trap of taking the path of least resistance as charted by the claims adjuster prior to representation. Likewise, all good-faith efforts to protect an employer from the unnecessary payment of years of compensation should be diligently explored. •

Christian Petrucci is a solo practitioner and past co-chairman of the Philadelphia Bar Association’s workers’ compensation section. He concentrates his practice in workers’ compensation litigation and Social Security disability. He can be reached at 215-592-1120 or via email at christian@petruccilaw.com.