The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Timothy J. Perkins, :
Petitioner :
:
v. : No. 305 C.D. 2023
:
Consolidated Pennsylvania Coal :
Company, LLC and East Coast Risk :
Management, LLC (Workers’ :
Compensation Appeal Board), :
Respondents : Submitted: June 4, 2024
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge (P.)
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: July 17, 2024
Timothy J. Perkins (Claimant) petitions this Court for review of a March 1,
2023 order of the Workers’ Compensation Appeal Board (Board), which affirmed
the decision of a workers’ compensation judge (WCJ) granting Consolidated
Pennsylvania Coal Company, LLC’s (Employer) petition to modify Claimant’s
workers’ compensation benefits (Modification Petition). Claimant argues that the
WCJ’s decision is not supported by substantial evidence, and that the WCJ
improperly substituted his own medical judgment for the opinions offered by
Claimant’s expert witness. After review, we affirm.
I. Background
Claimant worked as a coal miner for Employer when he sustained a work
injury to his left foot on February 2, 2018. Certified Record (C.R.), Item No. 23,
Bureau Documents. Employer issued a Notice of Compensation Payable (NCP)
accepting liability for the work injury, which it described as a crushing injury to the
left foot. Id. Claimant’s third and fourth toes and part of his second toe were
amputated the day he sustained the work injury. C.R., Item No. 18, Report of Dr.
Brian Ernstoff. Employer suspended Claimant’s wage loss benefits on October 15,
2018, when Claimant returned to work in a light-duty capacity. C.R., Item No. 23.
Claimant suffered a recurrence of his work injury on October 19, 2018, at which
time Employer reinstated Claimant’s wage loss benefits. Id. Employer suspended
Claimant’s wage loss benefits a second time after Claimant returned to work on
January 14, 2019. Claimant’s work injury recurred on June 1, 2019, resulting in a
second reinstatement of wage loss benefits. Id.
On October 13, 2020, Claimant underwent an independent medical
examination (IME) by Dr. Jeffrey Kann at Employer’s request. Id., Finding of Fact
(F.F.) No. 3. Based on Dr. Kann’s findings, Employer filed its Modification Petition
on February 24, 2021, alleging that Claimant’s injury had resolved into a specific
loss when his toes were amputated on February 2, 2018. C.R., Item No. 2.
Therefore, Claimant was entitled to 40 weeks of specific loss benefits, pursuant to
Section 306(c) of the Workers’ Compensation Act (Act), with Employer owed a
credit for any benefits paid after October 13, 2020.1 Id. Employer further alleged
1
Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 26, 1919, P.L. 642,
77 P.S. § 513(c). Section 306(c)(17)-(21) of the Act provides that for all disability resulting from
permanent injuries of the following classes, the compensation shall be exclusively:
(17) For the loss of a great toe, sixty-six and two-thirds per centum of wages during
forty weeks.
(18) For the loss of any other toe, sixty-six and two-thirds per centum of wages
during sixteen weeks.
(19) The loss of the first phalange of the great toe, or of any toe, shall be considered
equivalent to the loss of one-half of such great toe, or other toe, and shall be
2
that, because Claimant had not suffered any disability separate and apart from the
specific loss, he was no longer entitled to disability benefits.2 Id. Claimant denied
the allegations in Employer’s Modification Petition and asserted that he remained
disabled by his work injury, separate and apart from the amputations. C.R., Item
No. 4.
Before the WCJ, Claimant offered his own testimony at two hearings, as well
as deposition testimony by Dr. Brian Ernstoff, his treating physician. In support of
its Modification Petition, Employer presented the deposition testimony of Dr. Kann.
A. Claimant’s Evidence
At the time of the March 30, 2021 hearing before the WCJ, Claimant was 49
years old. C.R., Item No. 12, 3/30/2021 Hr’g Tr. at 9. Recalling his February 2,
2018 work injury, Claimant explained that he was standing on the floor of a mining
area when a coworker inadvertently dragged a “long-wall pan,” a vessel used to
collect coal, over Claimant’s left foot. Id. at 11-12. Claimant remained out of work
compensated at the same rate as for the loss of a great toe, or other toe, but for one-
half of the period provided for the loss of a great toe or other toe.
(20) The loss of more than one phalange of a great toe, or any toe, shall be
considered equivalent to the loss of the entire great toe or other toe.
(21) For the loss of, or permanent loss of the use of any two or more such members,
not constituting total disability, sixty-six and two-thirds per centum of wages during
the aggregate of the periods specified for each.
77 P.S. § 513(c)(17)-(20). According to the Modification Petition, the loss of Claimant’s third and
fourth toes beyond their first phalanges, and the partial loss of his second toe at the first phalange,
entitled him to 40 weeks of specific loss benefits. C.R., Item No. 2. Such benefits would have
expired in November 2018.
2
While the general rule is that a claimant awarded specific loss benefits under Section
306(c) of the Act is not otherwise entitled to workers’ compensation benefits, an exception arises
where the claimant sustains injuries that are separate and distinct from those that flow from the
specific loss injury. Kemps v. Steets (Workers’ Comp. Appeal Bd.), 257 A.3d 1271, 1277 (Pa.
Cmwlth. 2021).
3
for several months as a result of the injury, before returning to light duty as a shuttle
car operator.3 Id. at 12. Claimant was moved to a different position in June 2019,
which demanded considerably more walking. Id. at 13-14. Due to the uneven
surface of the mine floor as well as the sheer distances to be travelled, Claimant
found himself incapable of continuing in that position and stopped work again after
just three days. Id. at 13. Employer terminated Claimant’s employment on June 2,
2020. Id. at 24. Since his work ended in June 2019, Claimant worked as a stay-at-
home father, and occasionally earned supplemental income from buying, fixing, and
reselling cars. Id. at 21-22. Claimant was not seeking new employment at the time
of his testimony. Id. at 22.
To treat the lingering pain symptoms from his work injury, Claimant began
seeing Dr. Ernstoff in June 2019. Id. at 14. Asked to summarize his condition at the
time of his testimony, Claimant described the second toe on his left foot as “really
mangled,” “still numb,” and plagued with a “burning sensation.” Id. Claimant also
explained that the remaining nubs of his third and fourth toes “still bother” him and
cause him to “walk crooked.” Id. at 14-15. After being on his feet for extended
periods, Claimant found it necessary to sit in his recliner and raise his left foot to let
it rest. Id. at 16. To aid in balance and mobility, Claimant also wore a toe filler
inside his left shoe, which sits in place of his toes. Id. at 16-17. At Claimant’s last
visit with Dr. Ernstoff, which took place two weeks before Claimant’s testimony,
the doctor acknowledged that there was “nothing else he could do” to treat
Claimant’s condition. Id. at 17.
3
Although Claimant testified to being out of work for 11 months, the record reflects that
he returned to work in a light-duty position, without loss of income, on October 15, 2018. See
C.R., Item No. 23.
4
Testifying a second time before the WCJ on January 4, 2022, Claimant
reported that he still felt soreness and sensitivity in the areas where his injury
occurred. C.R., Item No. 15, 1/4/2022 Hr’g Tr. at 8. Claimant described particular
sensitivity in his second toe and mentioned that “the tip [of the toe] is like a bone.”
Id. at 7. Occasionally, Claimant explained, he would feel pain that begins on the
bottom of his foot and radiates through his leg. Id. Claimant also stated that he
walked with a limp as a result of his symptoms, which, in turn, has led to pain in his
left knee and hip. Id. at 9-10. Nonetheless, Claimant acknowledged that he had not
contacted Dr. Ernstoff’s office since his previous testimony or sought any other
medical treatment for his symptoms. Id. at 12-13. Claimant also admitted that he
had not “looked for any type of work at all” since the previous testimony. Id. at 15.
At an August 26, 2021 deposition, Dr. Ernstoff recalled that he first saw
Claimant in November 2018, on a referral from another doctor regarding phantom
pain. C.R., Item No. 19, Ernstoff Dep. at 10. Summarizing the findings of his initial
examination, Dr. Ernstoff explained that a walking person’s foot and toes normally
lie flat against the ground in mid-step, before the leg rises and the toes push off the
ground again. Id. at 11. By contrast, Claimant’s left toes did not come down to the
ground in tandem with the mid-foot, which prevented him from pushing off the
ground with a normal amount of force. Id. at 11. To treat the discrepancy, Dr.
Ernstoff prescribed shoe inserts that are designed to restore some of Claimant’s
ability to push off the ground with his left foot. Id. at 12. Dr. Ernstoff also prescribed
medication for Claimant’s persistent pain symptoms, which provided “temporary
relief.” Id. at 13.
Regarding Claimant’s work abilities, Dr. Ernstoff expressed doubt that
Claimant would ever be able to return to his pre-injury job. Id. at 16-17. Dr. Ernstoff
5
explained that underground mining environments often require frequent crouching
as well as walking, resulting in substantial pressure on the forefoot. Id. at 16. Given
Claimant’s persistent neuropathic complaints and phantom pain, Dr. Ernstoff opined
that Claimant would be capable of returning to work in a restricted capacity,
provided that breaks during the day were permitted and that he could avoid
crouching or walking long distances. Id. at 17. Dr. Ernstoff also acknowledged that
the aforementioned symptoms were normal sequelae from the type of amputations
that Claimant underwent. Id. at 54.
B. Employer’s Evidence
In his deposition testimony, Dr. Kann recalled that Claimant presented to the
October 13, 2020 IME with “mild pain, particularly at his second toe[,] with
activity.” C.R., Item No. 22, Kann Dep. at 16. Dr. Kann also noted that Claimant
“denied any swelling of the left foot,” and was neither taking medication to treat any
persistent symptoms nor wearing any shoe modifications. Id. When Dr. Kann asked
Claimant to walk, Dr. Kann observed no gait abnormalities, and that Claimant
appeared to be moving with “the push[-]off power of all five toes,” with “no loss of
that function whatsoever.” Id. at 18. A closer examination of the foot revealed the
“obvious partial amputation of the third and fourth toes” and “a well[-]healed
laceration of the second toe.” Id. Dr. Kann detected slight tenderness to palpation
on the sole of the foot just below the second toe, but determined that the remainder
of Claimant’s foot was “completely unremarkable.” Id. at 19. Following the
examination, Dr. Kann observed x-rays of Claimant’s foot, which Dr. Kann
interpreted as showing partial losses up to the middle bone of his third and fourth
toes, and no bone losses in the second toe. Id. at 20.
6
While acknowledging that Claimant had indeed lost a piece of his second toe,
Dr. Kann maintained that, from “a strictly functional standpoint, he really hasn’t lost
any of [its] function.” Id. at 22. Thus, Dr. Kann denied that Claimant had ever “lost
half that toe for all practical intents and purposes.” Id. Dr. Kann further opined that
no persistent symptoms in Claimant’s foot were separate and apart from the initial
injury to his second, third, and fourth toes, and subsequent amputation. Id. at 23.
Claimant’s injuries were narrowly limited to those toes, Dr. Kann explained, and did
not exhibit any symptoms elsewhere in the foot. Id. Dr. Kann further noted that
“the initial hypersensitivity [Claimant] had at the tips of his third and fourth toes is
just a normal expected outcome of a traumatic amputation” and that such sensitivity
“tends to improve over time.” Id.
C. The WCJ’s Decision
In a June 2, 2022 decision, the WCJ concluded that “Employer has met its
burden of proving that Claimant’s injury has resolved to the loss of the third and
fourth toes and half of the second toe of the left foot as of October 13, 2020.” WCJ
Decision, Conclusion of Law (C.L.) No. 1. Consequently, the WCJ determined that
Claimant was entitled to 40 weeks of specific loss benefits, with a credit to Employer
for benefits paid after October 13, 2020. Id., C.L. Nos. 1-2.
Explaining his decision, the WCJ noted that he credited Claimant’s testimony
in part, but rejected it “to the extent it was offered to prove that he has knee and hip
problems that are related to the work injury.” Id., F.F. No. 12. The WCJ also
credited Dr. Kann’s opinions over those offered by Dr. Ernstoff, as the WCJ was
“not persuaded that the conditions identified by Dr. Ernstoff constitute an injury or
disability separate and apart from the specific loss.” Id., F.F. 13. A gait abnormality,
the WCJ reasoned, “is not a separate injury to another body part but would appear
7
to be a consequence of the specific loss.” Id. The WCJ further explained that the
neuropathic pain and limitations of the joints of the toes “would also appear to be a
consequence of and to flow from the specific loss,” as Dr. Ernstoff himself
acknowledged. Id. Nonetheless, contrary to Dr. Kann’s opinion that Claimant
sustained no functional loss in his second toe, the WCJ was “persuaded that Claimant
has lost the use of one half of the second toe based on the limited loss of motion of
that toe and the other symptoms in that toe.” Id.
Claimant appealed to the Board, which affirmed. See C.R., Item No. 10. This
appeal followed.4
II. Issues
Claimant argues that the WCJ’s decision is not supported by substantial,
competent evidence because Employer never submitted medical evidence that
Claimant permanently lost the use of one half of his second toe for all intents and
purposes, and because the WCJ “substituted his own medical knowledge in making
his ruling, ignoring the medical evidence in the record.” Claimant’s Br. at 7.
III. Discussion
An employer seeking to modify a claimant’s benefits on the ground that the
claimant’s disability has changed carries the burden of proving that change by way
of medical evidence. Pertile v. Workmen’s Comp. Appeal Bd. (Constr. Eng’g
Consultants, Inc.), 687 A.2d 367 (Pa. 1997). If the employer seeks modification to
establish a specific loss, it must show that the injured party has suffered the
permanent loss of use of the injured member for all practical intents and purposes.
4
Our standard of 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. Lehigh Specialty Melting, Inc. v. Workers’ Comp. Appeal Bd.
(Bosco), 260 A.3d 1053, 1058 n.3 (Pa. Cmwlth. 2021).
8
HGO, Inc. v. Workmen’s Comp. Appeal Bd. (Hadley), 651 A.2d 719, 722 (Pa.
Cmwlth. 1994). While medical evidence is necessary, the claimant’s testimony and
the WCJ’s own observations are relevant and may constitute further support of a
finding of specific loss. Miller v. Workers’ Comp. Appeal Bd. (Wal-Mart), 44 A.3d
726, 729 (Pa. Cmwlth. 2012). The question of whether a claimant has lost the use
of a body part and the extent of that loss of use is one of fact; the question of whether
the loss is permanent for all practical intents and purposes is a mixed question of law
and fact. Bauer v. Workmen’s Comp. Appeal Bd. (Ram Constr. Co., Inc.), 517 A.2d
568, 571 (Pa. Cmwlth. 1986).
Instantly, the WCJ found that, as a result of his work injury, Claimant lost his
third and fourth toes and one half of his second toe. Under the schedule of
compensation for specific losses provided in Section 306(c) of the Act, such losses
result in a total payment equal to 2/3 of 40 weeks of Claimant’s wages. On appeal,
Claimant does not dispute the WCJ’s determinations regarding his third or fourth
toes, but argues only that there is no medical evidence to support the conclusion that
he permanently lost the use of one half of his second toe. In support, Claimant points
to Dr. Kann’s denial that Claimant has permanently lost the use of his one half of his
second toe for all practical intents and purposes. Claimant’s Br. at 11 (citing Kann
Dep. at 22).
Claimant’s argument is lacking in merit. The WCJ clearly stated that he
credited Claimant’s testimony, exclusive of his testimony on knee and hip pain
resulting from his abnormal gait. WCJ Decision, F.F. No. 12. That testimony
includes Claimant’s own observations that his second toe is “really mangled,”
3/30/2021 Hr’g Tr. at 14, and his description of the tip of the toe as “like a bone,”
1/4/2022 Hr’g Tr. at 7. While it is true that the WCJ generally credited Dr. Kann’s
9
testimony over Dr. Ernstoff’s, the WCJ also noted his finding that “Claimant has lost
the use of one half of the second toe based on the limited loss of motion of that toe
and the other symptoms in that toe.” WCJ Decision, F.F. No. 13. As stated above,
a claimant’s own testimony can lend support to a factfinder’s conclusion that an
injury has resolved into a specific loss. Thus, we see no error in the WCJ’s
conclusion.
Next, we address Claimant’s argument that the WCJ substituted his own
medical opinion in determining that Claimant lost the use of one half of his second
toe. It is well settled that a WCJ, who is not qualified as an expert medical witness,
is not permitted to substitute or rely on his own opinion to make medical findings.
Zeigler v. Workers’ Comp. Appeal Bd. (Jones Apparel Grp., Inc.), 728 A.2d 421,
424 (Pa. Cmwlth. 1999). According to Claimant, the WCJ ran afoul of this principle
when he ignored Dr. Kann’s opinion on the remaining use of one half of Claimant’s
second toe, despite otherwise crediting Dr. Kann’s testimony. Claimant maintains
that the WCJ is “bound by the opinions of Dr. Kann” due to the WCJ’s crediting of
Dr. Kann’s testimony over Dr. Ernstoff’s. Claimant’s Br. at 17.
Claimant’s argument is, again, unpersuasive. The WCJ’s conclusion of the
functional loss of one half of Claimant’s second toe is not the product of an improper
medical determination. Rather, it is the logical result of the WCJ’s acceptance of
Claimant’s own testimony. As explained above, the WCJ is free to consider a
claimant’s fact testimony when reaching the conclusion that a specific loss has
occurred. Furthermore, we disagree with Claimant’s argument that the crediting of
a medical witness’s testimony commits a WCJ to an adoption of that witness’s
10
statements in their entirety.5 As we have long held, the WCJ “is free to accept or
reject the testimony of any witness, including a medical witness, in whole or in part.”
Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d 137,
143 (Pa. Cmwlth. 2004) (emphasis added).
IV. Conclusion
For the foregoing reasons, we affirm the Board.
ELLEN CEISLER, Judge
5
While rejecting that argument, we must also acknowledge that the WCJ did not clearly
and concisely explain his rationale for rejecting Dr. Kann’s opinion that there was no functional
loss in Claimant’s second toe, despite otherwise crediting Dr. Kann’s testimony over Dr.
Ernstoff’s. By omitting such an explanation, the WCJ fell short of the longstanding requirement
to “specify the evidence upon which he . . . is relying, and to state the reasons for accepting that
evidence.” Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1047 (Pa.
2003). Any resulting error was harmless, however, since even Dr. Ernstoff acknowledged that
Claimant’s lingering pain and gait abnormalities were the normal consequences of amputations
such as those undergone by Claimant. See WCJ Decision, F.F. No. 13; Ernstoff Dep. at 54-55.
Thus, the record clearly supports the WCJ’s conclusion that no injuries remain that are separate
and apart from Claimant’s specific losses.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Timothy J. Perkins, :
Petitioner :
:
v. : No. 305 C.D. 2023
:
Consolidated Pennsylvania Coal :
Company, LLC and East Coast Risk :
Management, LLC (Workers’ :
Compensation Appeal Board), :
Respondents :
ORDER
AND NOW, this 17th day of July, 2024, the order of the Workers’
Compensation Appeal Board in the above-captioned matter, dated March 1, 2023, is
AFFIRMED.
ELLEN CEISLER, Judge