Ingersoll Rand Co. v. Commonwealth , 62 Pa. Commw. 507 ( 1981 )

Opinion by

Judge Williams, Jr.,

The question presented by this workmen’s compensation case is who, as between employer Ingersoll Rand Company (Ingersoll) and its former insurance carrier, must bear liability for specific loss benefits to Terry Lee Brown, the claimant below. When the Workmen’s Compensation Appeal Board (Board) affirmed a referee’s decision that Ingersoll was liable, the employer appealed to this Court.

In December 1977, Terry Lee Brown (claimant) filed a claim petition against Ingersoll, alleging that be bad lost tbe use of bis left band as tbe result of an August 1977 work injury. In tbe instant appeal it is uncontested that tbe claimant lost tbe use of bis band to a degree and in a manner entitling bim to specific loss benefits. Tbe loss of use was ascertained after tbe second of two adverse incidents concerning tbe claimant’s left band. Both incidents, one in 1973 and tbe other in August 1977, occurred in tbe course of claimant’s employment with Ingersoll. However, at tbe time of tbe first incident Ingersoll was insured by tbe Pennsylvania Manufacturers’ Association Insurance Company (PMA); and, at tbe time of tbe second incident, Ingersoll was self-insured.

Ingersoll here challenges tbe referee’s finding that tbe claimant’s loss of use of tbe left band was caused by tbe second adverse incident, as distinguished from the first. In that regard, Ingersoll argues that tbe referee’s finding was not only unsupported by substantial evidence, but was also in capricious disregard of competent medical testimony from tbe claimant’s own physician.

On May 21, 1973, tbe claimant was working for Ingersoll as a machinist. On that date, while be was operating a band saw, tbe claimant’s left band was caught under tbe blades of tbe saw and severely cut. Tbe band was cut almost entirely through; but medical procedures were successful in sewing it together. As a result of this injury tbe claimant was unable to work for 15% weeks, for which be received workmen’s compensation benefits from PMA. He returned to full-time [work with Ingersoll on September 10, 1973.

Concerning tbe condition of bis band after returning to work in 1973, tbe claimant testified in tbe instant matter as follows: He was able to use bis left band, but it was not the same as before tbe accident with the saw. He was able to grasp things with the hand and to lift objects weighing up to 25 pounds. Upon resuming employment in September 1973, he worked with machinery similar to that he used prior to the accident, but which had smaller parts. He continued to work with such machinery until the second adverse incident, in August 1977; and during that interval he missed only 5 days of work because of his hand. The claimant also testified that prior to the second incident he considered his left hand to be “quite strong”, although cold weather made the hand painful.

On August 29, 1977, the claimant suffered a fracture of his left hand, while lifting a 25 pound object from a machine. The claimant further described that incident as follows: While he was attempting to lift the object it began to slip from the machine, causing him to grasp the object with both hands. In the course of grasping it, the fingers on claimant’s left hand became hyperextended at the metacarpal joints. As a result, the fourth metacarpal head on the left hand was fractured. According to the claimant, his left hand failed to bear the weight of the slipping object; and, he attributed that weakness to the 1973 injury.

The claimant further testified that after he fractured his left hand in August 1977, he could not grasp anything with that hand or hold anything with it weighing more than a pound. Nor, according to the claimant, was he able to grip an object such as a screwdriver or a hammer with his left hand. After the second injury to the claimant’s left hand, Ingersoll gave him a job screening parts and sweeping floors.¹

The sole medical witness to testify in this case was Dr. Albert Murtland, an orthopedic surgeon, who treated the claimant for the 1977 hand fracture. Dr. Murtland had also examined the claimant in December 1974, in connection with the first injury. Based on his examination of the claimant after the second injury, Dr. Murtland was of the opinion that the claimant had sustained a 40% degree of anatomical disability in the left hand, and that this meant the hand was useless for industrial purposes. The doctor added, however, that in his opinion the claimant’s level of disability preexisted the second injury; and was of that same level or degree after the first injury, in 1973. Dr. Murtland advanced the further opinion that the claimant’s loss of use of the left hand was due to the 1973 injury, and that the second injury made but slight or minimal contribution to the disability. At one point in his testimony, this witness described the second injury as an “aggravation” of the earlier one.

Dr. Murtland had been called as a witness for the claimant to establish the nature of the second injury and the extent of disability. However, the doctor’s opinions about the extent of disability and its cause were, for the most part, developed during his cross-examination by counsel for Ingersoll and PMA.

Notwithstanding Dr. Murtland’s testimonial opinion that the claimant’s hand had the same level of disability after each injury, there are elements in the doctor’s own testimony that detract from his opinion in that regard. As already noted, the doctor, in December 1974, had examined the claimant in connection with the first injury; that examination took place about 15 months after the claimant had returned to work from the saw accident. The December 1974 examination revealed numerous calluses on the claimant’s left hand, a fact which the doctor interpreted as evidence of recent use of the hand. At that time, the doctor determined that the power in the left hand was “excellent” and its circulation adequate. During cross-examination, Dr. Murtland admitted that as a result of the 1974 medical examination he had issued a report stating the hand was “excellent” and had a disability level of only 10%. Also on cross-examination, the doctor stated a belief that, except for the August 1977 injury, the claimant could have continued working using his left hand as he did prior to that second injnry.

In addition to calling the second injury an “aggravation” of the first, Dr. Murtland stated that the first injury predisposed the claimant to the second injury. Then, at another point in his testimony, the doctor agreed that the second injury was a “new injury superimposed over an old injury. ’ ’

This Court has embraced the principle that if a compensable disability results directly from a prior injury but manifests itself on the occasion of an intervening incident that does not contribute materially to the disability, then the intervening incident does not create a separately compensable injury for purposes of a contest between two insurers. City of Williamsport v. Workmen’s Compensation Appeal Board, 55 Pa. Commonwealth Ct. 618, 423 A.2d 817 (1980); United Industrial Maintenance v. Workmen’s Compensation Appeal Board, 46 Pa. Commonwealth Ct. 156, 405 A.2d 1360 (1979). Whether or not the intervening incident caused or materially contributed to the disability is a question of fact to be determined by the referee. City of Williamsport; United Industrial Maintenance.

Questions of evidentiary weight and credibility are strictly for the referee to decide. E.g., Owens v. Workmen’s Compensation Appeal Board, 39 Pa. Commonwealth Ct. 510, 395 A.2d 1032 (1979). It is for the referee to decide which of conflicting or inconsistent testimony to accept; and this applies whether the inconsistency arises between two witnesses or in the testimony of a given witness. American Refrigerator Equipment Co. v. Workmen’s Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977). Having assessed the credibility of the evidence, the referee may accept or reject the testimony of any witness in whole or in part. Id.

The claimant’s work history after returning to work from the first injury afforded a strong basis for inferring that the level of disability, in his left hand, was not the same after that injury as it was after the second. After resuming work following the first injury, the claimant continued to work for almost 4 years with machinery similar to that he used before the first injury; and, during that four-year time, he missed only 5 days from work because of his hand. This work history, in addition to the claimant’s own testimonial description of his hand capacity prior to the second injury, clearly supports a conclusion that claimant had not lost the use of the hand prior to the second injury.²

Accordingly, there is substantial evidence to support the referee’s finding that it was the second injury, of August 1977, that caused the claimant to lose the use of his left hand for industrial purposes. “Substantial evidence” is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Republic Steel Corp. v. Workmen’s Compensation Appeal Board, 492 Pa. 1, 421 A.2d 1060 (1980). In our view, the evidence of the claimant’s work history after resuming work in 1973, and his description of his hand capacity during the period preceding the second injury, was evidence that the referee could reasonably accept in reaching his conclusion.

As a further matter, it was within the referee’s province to accept or reject Dr. Murtland’s opinion, that the second injury did not significantly contribute to the claimant’s loss of use of his left hand. In the face of the claimant’s pre-August 1977 work history, the rejection of the doctor’s opinion cannot be deemed a capricious disregard of evidence.

For the reasons set forth, we affirm the Board’s order.

Order

And Now, the 19th day of November, 1981, the Order of the Workmen’s Compensation Appeal Board at Docket No. A-77521, the above matter, is hereby affirmed.

Ingersoll Rand Company is directed to pay to claimant Terry L. Brown compensation at the rate of $177.33 per week for the total loss of use of his left hand. The said payments shall be for a period of 350 weeks commencing August 29,1977.

Interest on deferred installments of compensation shall be at the rate of ten percent (10%) per annum.

Counsel fees in the amount of twenty percent (20%) shall be paid to Robert J. Beirne, Esquire, P.O. Box 87, Athens, Pennsylvania 18810.

1 The referee found that this job, at a reduced salary, did not require claimant to use his left hand.

2 A referee may attach greater weight to a claimant’s testimony than to the .testimony of the claimant’s treating physician. See George v. Workmen’s Compensation Appeal Board, 39 Pa. Commonwealth Ct. 16, 394 A.2d 1080 (1978).