Westmoreland Regional Hospital v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

President Judge LEADBETTER.

I must respectfully dissent. The Majority concludes that Westmoreland Regional Hospital (Employer) met its burden of establishing entitlement to modify the disability status of Linda Pickford (Claimant) from total to partial based on the impairment rating evaluation (IRE) results. To reach its conclusion, the Majority disregards credibility determinations made by the Workers’ Compensation Judge (WCJ) in deciding the accuracy of the IRE rating. The Majority’s conclusion is contrary to the Pennsylvania Supreme Court’s holding in Diehl v. Workers’ Compensation Appeal Board (I.A. Construction), 607 Pa. 254, 5 A.3d 230 (2010), which reaffirmed the role of the WCJ as the ultimate fact-finder in a proceeding on a petition to modify a claimant’s disability status based on results of an IRE requested by an employer more than 60 days after the claimant’s receipt of 104 weeks of total disability benefits.

Section 306(a.2)(1) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 4 of the Act of June 24, 1996, P.L. 350, 77 P.S. § 511.2(1), provides in relevant part:

When an employe has received total disability compensation pursuant to clause (a) [Section 306(a), 77 P.S. § 511 (schedule of total disability benefits) ] for a period of one hundred four weeks, unless otherwise agreed to, the employe shall be required to submit to a medical examination which shall be requested by the insurer within sixty days upon the expiration of the one hundred four weeks to determine the degree of impair*130ment due to the compensable injury, if any. The degree of impairment shall be determined based upon an evaluation by a physician ..., chosen by agreement of the parties, or as designated by the department, pursuant to the most recent edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment [AMA Guides].” [Emphasis added.]

If an IRE is requested within 60 days of receipt of 104 weeks of total disability benefits and results in an impairment rating of 50% or greater, the claimant is “presumed to be totally disabled” and will continue to receive total disability benefits; if the impairment rating is less than 50%, the claimant’s disability status changes from total to partial disability upon 60-day notice. Section 806(a.2)(2) of the Act.

In Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 888 A.2d 758 (2005), the Supreme Court considered when an insurer must ask an injured employee to submit to an IRE, in order to obtain an automatic change in a claimant’s disability status. The Court held:

The General Assembly ... has supplemented the traditional approach for securing a reduction in benefits to partial disability by incorporating the concept of an IRE, providing for a self-executing, automatic modification of benefits where an insurer secures a disposi-tive impairment rating within a defined time period ... and affording insurers the opportunity to establish an impairment rating in other time periods to reduce benefits via the traditional administrative process.

Id. at 380, 888 A.2d at 766 (emphasis added).

Subsequently in Diehl, the Supreme Court explained the term “the traditional administrative process,” referred to in Gardner, through which the employer must establish a change in the claimant’s disability status based on IRE results obtained more than 60 days after the claimant received 104 weeks of total disability benefits. The Court held:

If the IRE is requested within the 60-day period and the claimant’s impairment rating is less than 50 percent, then the change in disability status is automatic. If, however, the employer requests the IRE outside of the 60-day window and claims that the claimant’s impairment rating is less than 50 percent, the IRE merely serves as evidence that the employer may use at a hearing before a WCJ on the employer’s modification petition to establish that the claimant’s disability status should be changed from total to partial. In that event, the IRE becomes an item of evidence just as would the results of any medical examination the claimant submitted to at the request of his employer. It is entitled to no more or less weight than the results of any other examination. The physician who performed the IRE is subject to cross-examination, and the WCJ must make appropriate credibility findings related, to the IRE and the performing physician. The claimant, obviously, may introduce his own evidence regarding his degree of impairment to rebut the IRE findings.

Diehl, 607 Pa. at 279, 5 A.3d at 245 (emphasis added).

Under Diehl, as a party seeking to modify Claimant’s disability status based on the results of the IRE requested after the mandatory 60-day period in Section 306(a.2)(l) of the Act, Employer had the burden of proving the accuracy of Claimant’s 22% total whole person permanent impairment rating determined by the IRE physician, Milton J. Klein, D.O., to establish its entitlement to modify Claimant’s *131disability status. The Majority disregards the Diehl holding by failing to treat the results of the IRE performed by Dr. Klein and his testimony as just one item of evidence subject to the WCJ’s credibility determinations. The Majority instead finds Employer’s evidence as dispositive of the modification and review petitions, as if the IRE were requested within the 60-day period.

Claimant’s work injuries included bra-chial plexus stretch and reflex sympathetic dystrophy (RSD), also known as complex regional pain syndrome, which is “a chronic pain condition that is believed to be the result of dysfunction in the central or peripheral nervous systems.” National Institute of Neurological Disorders and Stroke Fact Sheet (Exhibit 3 to Dr. Emilio R. Navarro’s Deposition); Reproduced Record (R.R.) at 91a. A “subjective complaint of pain is the hallmark” of RSD. AMA Guides, Fifth Edition at 496. The objective diagnostic criteria for RSD include changes in skin color (mottled or cyanotic), skin temperature and skin texture, edema, soft tissue atrophy, joint stiffness, decreased passive motion, nail changes and hair growth changes. Table 16-16, AMA Guides, Fifth Edition at 496.1

Dr. Klein conceded that Claimant complained of “multi-focal, disabling musculo-skeletal pain” and “impingement” in the extremity and was taking pain medications and that pain is also one of the symptoms of brachial plexus stretch. Dr. Klein’s Deposition at 17 and 20; R.R. 261a and 264a. Dr. Klein also acknowledged that pain is “built into” an impairment rating under the AMA Guides. Id. at 18; R.R. at 262a. In his IRE report, however, Dr. Klein did not rate Claimant’s impairment resulting RSD and brachial plexus stretch, stating that his examination of Claimant showed “no upper extremity stigmata of RSD such as allodynia, hair loss, joint contractures and shiny atrophic skin.” R.R. at 285a. He admitted that people with low back pain and shoulder impingement can have “good days and bad days.” Id. at 19; R.R. at 263a. He testified: “You are asking if there could be some variation in how [Claimant] is doing and if I examined her a different day, would she be better, would she be worse, that’s possible.” Id.

Claimant’s treating physician, Dr. Navarro, testified that Claimant had all of the RSD symptoms: burning pain, increased skin sensitivity, changes in skin color, texture and temperature, changes in nail and hair growth patterns, swelling and stiffness in affected joints and decreased ability to move the affected body part. Dr. Navarro had Claimant show Employer’s counsel the changes in skin color and texture, skeletal structure change and atrophy in her hand. See Dr. Navarro’s Deposition at 19-20; R.R. at 74a-75a. Dr. Navarro testified that Claimant was experiencing ongoing debilitation, atrophy and the spread of symptoms to another extremity, indicating that she was in the late stage 2 or early stage 3 of RSD, and that her prognosis was poor. Dr. Navarro treats Claimant every one or two months.

Accepting Dr. Navarro’s testimony regarding his findings of RSD and brachial plexus stretch as more credible than Dr. Klein’s conflicting testimony, the WCJ concluded that Dr. Klein’s IRE was inaccurate because his impairment rating did *132not include all of the work injuries. The WCJ stated:

Dr. Navarro’s observations are credible since he, unlike Dr. Klein, who only evaluated [Claimant] on one occasion, had the opportunity to evaluate [her] condition over time and become aware of the fluctuations in her condition. Although Dr. Navarro’s notes do not document physical examination findings consistent with [RSD] near the time of Dr. Klein’s evaluation, they do show the presence of these findings before and after Dr. Klein’s evaluation. Dr. Klein admitted that it was possible for [Claimant] to be better or worse if he saw her on a different date. Dr. Navarro, also, noted that physicians at Cleveland Clinic confirmed his diagnosis and installed the spinal stimulator as treatment for [Claimant’s] pain.

WCJ’s Finding of Fact No. 8.d.

In a workers’ compensation case, credibility determinations and the evaluation of evidentiary weight are within the province of the WCJ as a fact-finder. Clear Channel Broad. v. Workers’ Comp. Appeal Bd. (Perry), 938 A.2d 1150 (Pa.Cmwlth.2007). It was within the exclusive province of the WCJ to give more weight to Dr. Navarro’s testimony over Dr. Klein’s conflicting testimony regarding the existence of objective evidence of RSD and brachial plexus stretch. The fact that Dr. Navarro’s notes did not indicate Claimant’s RSD symptoms near the time of the IRE was just a matter of the weight to be given to his testimony. Because the WCJ’s findings are based upon her credibility determinations, they may not be disturbed on appeal. Lehigh County Vo-Tech Sch. v. Workmen’s Comp. Appeal Bd. (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995).

The Majority states, however, that “[Dr. Klein] could not assign more than a zero percent impairment to those conditions without violating the AMA Guides” because he “found no objective evidence of either RSD or brachial plexus stretch.” Op. at 126. According to the Majority, this Court held in Barrett v. Workers’ Compensation Appeal Board (Sunoco, Inc.), 987 A.2d 1280 (Pa.Cmwlth.2010), appeal denied, 608 Pa. 670, 13 A.3d 480 (2010), that “an IRE that assigns a zero impairment rating to a work injury does not render the IRE invalid.” Op. at 126.

In Barrett, the claimant challenged the validity of the IRE, arguing, inter alia, that the physician who performed the IRE failed to provide a rating for each one of the work injuries. The IRE physician testified that he could not establish an impairment rating for one of the claimant’s work injuries because there was no objective evidence of the injury. Accepting the IRE physician’s testimony as credible and rejecting the conflicting testimony of the claimant’s medical witness, the WCJ rejected the claimant’s challenge to the IRE. In upholding the WCJ’s denial of Claimant’s challenge to the IRE rating, the Court stated that “[i]n effect, Claimant challenges the weight assigned to [the IRE physician’s] testimony, a matter entrusted solely to the WCJ as the factfinder.” Barrett, 987 A.2d at 1287. The Barrett Court merely reaffirmed the WCJ’s role as a fact-finder in a challenge to the validity of the impairment rating.

It is well established that each case must be decided on its own facts. Bates v. Workers’ Comp. Appeal Bd. (Titan Constr. Staffing, LLC), 878 A.2d 160 (Pa.Cmwlth.2005). Unlike in Barrett, the WCJ in this matter made the credibility determinations against Dr. Klein who performed the IRE. The Majority’s position directly contravenes Diehl and Barrett and compels the WCJ to accept the testimony of the IRE physician. The position taken by the Majority usurps the WCJ’s fact-finding func*133tions and renders “the traditional administrative process” adopted in Gardner and Diehl meaningless. It was Employer’s burden to establish the accuracy of the IRE, not Claimant’s. Claimant “may” present her own evidence but was not required to do so. Diehl, 607 Pa. at 279, 5 A.3d at 245.

Because the WCJ’s denial of Employer’s review and modification petitions is supported by her credibility determinations, I would affirm the Board’s order.

Judges McGINLEY and COHN JUBELIRER join this dissenting opinion.

. To determine a degree of impairment from RSD, the following steps must be taken: (1) rate the upper extremity impairment resulting from a loss of motion of each individual joint involved; (2) rate the upper extremity impairment resulting from sensory deficits and pain; (3) combine those ratings; and then (4) convert the upper extremity impairment to whole person impairment using Table 16-3. AMA Guides, Fifth Edition at 496.