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.
2

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 fractures5to 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.

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

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. 
3

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 
4

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 
5

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).
6

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 workrelated incident causes multiple separate and distinct injuries. Id.
7

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. 
8

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.
9

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. 
10

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.
11

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).
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 :

O R D E R

AND NOW, this 1

st day of March, 2019, the order of the Workers’ 

Compensation Appeal Board is AFFIRMED.

 

ROBERT SIMPSON, Judge