Arvilla Oilfield Services, Inc. v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

President Judge PELLEGRINI.

Because the majority is making credibility determinations and reweighing the evidence to find that Claimant has reached a maximum level of improvement to change his disability from total to partial, I respectfully dissent.

In December 2004, Claimant underwent arthroscopic surgery on his right hip, followed by a total hip replacement in October 2005. In December 2009, Employer filed a modification petition, alleging that Claimant had fully recovered from the work injuries to his low back and right shoulder, but had stipulated that Claimant had not fully recovered from his hip injury.

In support of its modification petition to modify Claimant’s disability status from total to partial, Employer offered the deposition testimony of Jon Alexander Levy, M.D. (Dr. Levy), a board certified orthope-*768die surgeon, who opined that Claimant was fully recovered from his work-related right shoulder strain and low back strain, and that any ongoing back complaints were due to Claimant’s pre-existing disc degeneration. Dr. Levy also opined that Claimant had reached maximum medical improvement.

Dr. Dominic M. Sciamanda, D.O. (Dr. Sciamanda), who is board certified, inter alia, in neuromusculoskeletal medicine and osteopathic manipulative medicine, testified that he began treating Claimant on July 14, 2008, for pain in his right hip and low back. Dr. Sciamanda diagnosed Claimant with lumbar degenerative disc disease but also opined that the work injury caused his pre-existing degenerative back condition to become symptomatic. He also testified that he had not released Claimant to perform any type of work, even sedentary work.

After all the testimony had been taken regarding Employer’s modification petition but before it was decided, Employer requested that Claimant undergo an impairment rating evaluation (IRE) in accordance with Section 306(a.2) of the Workers’ Compensation Act (Act)1 and Jeffrey M. Moldovan, D.O. (Dr. Moldovan) was assigned to perform the IRE. After an examination, Dr. Moldovan opined that Claimant had a ten percent impairment rating of the whole person caused by the work injury. The request for the IRE was outside of the 60-day window set forth in Section 306(a.2)(l) of the Act, 77 P.S. § 511.2(1), after 104 weeks of compensation where if a claimant’s impairment rating is less than 50 percent, then the change in disability from total to partial status is automatic and the burden is on the claimant to appeal.2

After Employer’s second modification petition to modify Claimant’s disability status from total to partial was consolidated with the pending petition, Dr. Moldovan testified that he assigned a zero percent impairment to Claimant’s right shoulder and low back strain, a rating of 25 percent impairment for his hip and a zero percent impairment to the shoulder and low back, which resulted in a ten percent whole person permanent impairment attributable to the work injury, and that Claimant had reached maximum medical improvement.

The WCJ denied the request to modify benefits from total to partial. Regarding *769the determinations at issue here, the WCJ credited Dr. Levy’s opinion that Employer proved that Claimant had fully recovered from his right shoulder injury and granted Employer’s petition for that injury, but rejected his opinion that Claimant had fully recovered from his low back strain because he did not address the effect that Claimant’s hip injury would have on his work-related back strain. Because the WCJ found that Claimant was not fully recovered from his back strain, she denied Employer’s modification petition with respect to that injury.

The WCJ rejected Dr. Moldovan’s opinion, first making a general credibility finding that the “testimony of Dr. Moldovan is not found credible regarding the IRE because his opinion that the Claimant has reached the maximum medical improvement is not found to be credible.” The WCJ then goes on to state that he accepted Dr. Sciamanda’s testimony that Claimant is continuing to make progress but continues to have setbacks at times, and that Dr. Moldovan’s opinion that [he] is “as good as he is going to get” is not supported by the treatment records. Based on those determinations, the WCJ denied the modification from total to partial disability based on Dr. Moldovan’s IRE.

The majority reverses because the WCJ improperly found Dr. Moldovan not credible and Dr. Sciamanda’s testimony credible because Dr. Sciamanda did not testify on the issue of maximum medical improvement. The majority then goes into a detailed examination of why it would have found Dr. Sciamanda’s testimony not credible for the purposes of whether Claimant had reached the maximum level of medical improvement mainly because Dr. Sciaman-da did not directly address the maximum level of improvement, which is not surprising, given that his testimony was taken before this became an issue.

I disagree with the majority’s remand to the WCJ to make a credibility determination “based solely on Dr. Moldovan’s deposition testimony and IRE report ... [as it] pertains to impairment, not to Claimant’s disability or his lack of full recovery because they are irrelevant to an IRE proceeding” and apparently without taking into consideration Dr. Sciamanda’s testimony concerning Claimant’s condition. The majority arrives at that position because Dr. Sciamanda never used the AMA Guides in arriving at his opinion that Claimant had not reached his maximum level of medical improvement. That is not surprising because Employer did not request the IRE under Section 306(a.2) of the Act until after Dr. Sciamanda testified.

Under the majority’s view, just because a medical witness who testified that a claimant was disabled for all purposes did not address the AMA Guides in determining a level of medical impairment, that testimony cannot be used by the WCJ to make credibility determinations about whether another medical expert who used the AMA Guides and found that the claimant was only 10% impaired. What the majority ignores is that both doctors made observations about Claimant’s condition and that the testimony does not become irrelevant as to whether a doctor was credible or not just because the opinion was not converted to a mathematical percentage.

Even if we ignore Dr. Sciamanda’s medical examination and improperly find that Dr. Moldovan’s testimony was uncontro-verted, the WCJ also found Dr. Moldovan’s opinion that Claimant had reached his maximum level of improvement was not supported by the treatment records. That finding alone is sufficient to explain why the WCJ found Dr. Moldovan’s pur*770portedly uncontroverted testimony not credible.

Accordingly, because the WCJ gave legally sufficient reasons as to why he found Dr. Moldovan’s testimony not credible, I respectfully dissent and would affirm the Board.

. Act of June 2, 1915, P.L. 736, added by the Act of June 24, 1996, P.L. 350, 77 P.S. § 511.2. Section 306(a.2) provides an alternate means of changing a claimant’s disability status. Under that provision, once a claimant has received 104 weeks of total disability benefits, the employer may request an IRE within 60 days of the expiration of the 104 weeks. If the impairment review indicates that the claimant’s impairment rating is less than 50 percent, then the claimant’s disability status automatically changes from total to partial disability.

. As the Supreme Court has explained:

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 v. Workers’ Compensation Appeal Board (I.A. Construction), 607 Pa. 254, 5 A.3d 230, 245 (2010).