Opinion
No. 856 C.D. 2013
11-25-2013
Francis Allison, Petitioner v. Workers' Compensation Appeal Board (Archbishop Carroll High School), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Francis Allison (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that reversed an order of a Workers' Compensation Judge (WCJ) denying a modification petition filed by Claimant's employer, Archbishop Carroll High School (Employer). In so doing, the Board's order modified Claimant's disability status from total to partial based upon an eight percent impairment rating evaluation (IRE). Claimant contends the Board erred by usurping the WCJ's fact-finding authority when it substituted its own finding that the IRE physician maintains an active clinical practice of at least 20 hours per week as required by Section 306(a.2)(1) of the Workers' Compensation Act (Act). For the reasons that follow, we affirm.
Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 24, 1996, P.L. 350, 77 P.S. §511.2(1).
I. Background
In January 2003, Claimant sustained a work-related injury to his head, neck and back, in the nature of a cerebral concussion. Claimant's injury resulted from a slip and fall on wet steps.
Pursuant to a notice of compensation payable (NCP), Claimant received total disability benefits in the weekly amount of $483.82 based on an average weekly wage of $725.73. In March 2010, the WCJ issued a decision and order modifying Claimant's weekly benefit rate and average weekly wage.
About seven years later, in April 2010, following an IRE, Employer filed a modification petition alleging Claimant's benefits should have been modified because Claimant reached maximum medical improvement from the work injury and had an impairment rating only of eight percent. Claimant filed an answer denying Employer's material allegations.
In support of its petition, Employer submitted the deposition testimony of Lewis Khella, M.D. (IRE Physician), a physician board-certified in physical medicine, rehabilitation and electro-diagnostic medicine. In March 2010, IRE Physician evaluated Claimant; he reviewed Claimant's medical records and performed a physical examination.
The results of Claimant's physical examination were normal. Claimant had no acute distress; he had a normal gait. Claimant was fully awake, aware, oriented, coherent and cooperative. Claimant's vital signs were within normal limits. His vision and hearing were functional; his balance was fair.
However, Claimant still experienced some residual symptoms from his 2003 work injury. Claimant's speech was somewhat slurred; he had a poor memory for dates and names. In addition, Claimant had a limited range of motion of the neck and moderately decreased ranges of motion in the lumbar spine in all directions.
Nonetheless, IRE Physician opined Claimant reached maximum medical improvement at the time of his examination. IRE Physician followed the steps in the Sixth Edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA Guides). He determined Claimant had an impairment of eight percent of the whole body. The WCJ accepted IRE Physician's testimony as credible.
See Robert D. Rondinelli et al., Am. Med. Assoc., Guides to the Evaluation of Permanent Impairment (6th ed. 2008).
Pursuant to Section 306(a.2)(2) of the Act, if an IRE results in an impairment rating of less than 50 percent of the whole body under the most recent edition of the AMA Guides, the claimant's disability status shall be modified to partial disability. 77 P.S. §511.2(2).
However, the WCJ found IRE Physician testified he averages about 20 hours per week in his clinical practice. WCJ's Op., 1/14/11, Finding of Fact (F.F.) No. 5. Thus, the WCJ found "the record did not establish that [IRE Physician] is active in a clinical practice at least 20 hours per week." Id. (emphasis added). Section 306(a.2)(1) requires that the physician performing the IRE be: licensed in the Commonwealth, board-certified and active in clinical practice at least 20 hours per week. Therefore, the WCJ determined Employer did not meet its burden of proof in its modification petition.
On appeal, the Board reversed. In so doing, the Board noted IRE Physician testified on direct examination that he maintains an active clinical practice of 20 hours or more per week. See Dep. of Lewis Khella, M.D. (Khella Dep.), 4/7/10, at 8; Reproduced Record (R.R.) at 16a. On cross-examination, the doctor testified:
Q: On average, can you give me an idea of how many hours a week you have your active clinical practice of medicine versus any other medical/legal type of work that you might do?Khella Dep. at 26; R.R. at 34a.
A: About 20 hours a week.
Q: That 20 hours, you would say that is an average?
A: Yes.
The Board determined that IRE's Physician's testimony on both direct and cross-examination provided substantial evidence supporting the WCJ's finding that IRE Physician averaged 20 hours of clinical practice per week. Bd. Op., 4/22/13, at 4. Therefore, the Board held the WCJ's findings "clearly establish [IRE Physician] maintained an active clinical practice of at least 20 hours per week according to Act." Id. Consequently, the Board reversed the WCJ's order and granted Employer's modification petition. Claimant petitions for review.
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. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
II. Discussion
A. Argument
Claimant contends the WCJ's findings were supported by substantial evidence and that the record did not establish IRE Physician engaged in an active clinical practice for at least 20 hours per week as required by Section 306(a.2)(1) of the Act. Additionally, Claimant asserts the Board erred in usurping the WCJ's role as fact-finder and substituting its own finding that IRE Physician maintained an active clinical practice of at least 20 hours per week. Section 306(a.2)(1) of the Act provides (with emphasis added):
(1) When an employe has received total disability compensation ... for a period of one hundred four weeks ... the employe shall be required to submit to a medical examination ... to determine the degree of impairment due to the compensable injury, if any. The degree of impairment shall be determined based upon an evaluation by a physician who is licensed in this Commonwealth, who is certified by an American Board of Medical Specialties approved board or its osteopathic equivalent and who is active in clinical practice for at least twenty hours per week, chosen by agreement of the parties, or as designated by the department, pursuant to the most recent edition of the [AMA Guides].77 P.S. §511.2(1). Further, the Bureau of Workers' Compensation's (Bureau) IRE regulations provide "the phrase 'active in clinical practice' means the act of providing preventive care and the evaluation, treatment and management of medical conditions of patients on an ongoing basis." 34 Pa. Code §123.103(b).
Here, Claimant points out, where the Board takes no additional evidence, the WCJ's determinations as to witness credibility and evidentiary weight are conclusive. Elliot Turbomachinery Co. v. Workers' Comp. Appeal Bd. (Sandy), 898 A.2d 640 (Pa. Cmwlth. 2006). Also, as the fact-finder, the WCJ may accept or reject the testimony of any witness, in whole or in part. Id. In addition, in performing a substantial evidence analysis, we must view the evidence in a light most favorable to the party who prevailed and draw all reasonable inferences that are deducible from the evidence in support of the fact-finder's decision. Id.
In accord with these principles, Claimant contends a careful examination of the record reveals IRE Physician's testimony did not establish he maintains an active clinical practice for at least 20 hours per week. Rather, IRE Physician testified he averages 20 hours per week. See Khella Dep. at 26; R.R. at 34a. Consequently, Claimant argues, in order to average 20 hours per week, some weeks IRE Physician's active clinical practice must be less than 20 hours. Thus, the WCJ reasonably inferred that, in some weeks, IRE Physician's clinical practice falls below the 20-hour minimum. As such, Claimant maintains the WCJ properly determined IRE Physician did not meet the requirements for an examining physician in Section 306(a.2)(1) of the Act.
Claimant mentions in his brief that IRE Physician went to college prior to World War II. However, Claimant does not otherwise challenge IRE Physician's competency based on his age. To that end, we note a witness is presumed competent. Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225 (1999). Further, the burden of proving incompetency is on the party challenging competency. Id. Here, the WCJ credited IRE Physician's medical testimony. --------
B. Analysis
The WCJ accepted as credible IRE Physician's testimony that at the time of his March 2010 examination, Claimant reached maximum medical improvement. F.F. No. 7. The WCJ also found, based on IRE Physician's testimony, that "Claimant had an impairment of 8 percent of the whole person" at the time of IRE Physician's examination. F.F. No. 10. The WCJ also found IRE Physician, in performing his evaluation, followed the steps in the AMA Guides. Id. The WCJ further noted Employer presented a reasonable contest based on IRE Physician's testimony and the documents submitted. F.F. No. 13.
However, in Finding of Fact No. 5, the WCJ stated:
[IRE Physician] testified, and the Judge finds that he has two locations for his clinical practice, specifically sites at his home and at Riddle Memorial Hospital, and that he averages about 20 hours per week in his clinical practice. Based on the record, the Judge finds that the record did not establish that [IRE Physician] is active in a clinical practice at least 20 hours per week.F.F. No 5 (emphasis added). Therefore, the WCJ concluded, Employer did not establish IRE Physician maintained an active clinical practice of at least 20 hours per week. WCJ Op., Conclusion of Law No. 1.
Ultimately, the WCJ held IRE Physician's medical testimony was incompetent because he failed to meet the requirement in Section 306(a.2)(1) of the Act that he is active in a clinical practice at least 20 hours per week. "The determination of whether the testimony of a medical witness is competent is a question of law and as such, fully reviewable by this Court." Buchanan v. Workmen's Comp. Appeal Bd. (City of Phila.), 659 A.2d 54, 56 (Pa. Cmwlth. 1995). "Our review must encompass the witness's entire testimony, and not merely isolated statements, in reaching our determination." Id.
Upon review of IRE Physician's testimony in its entirety, we believe it establishes that IRE Physician satisfied all the requirements in Section 306(a.2)(1). On direct examination, IRE Physician testified he is certified to perform IREs under the Sixth Edition of the AMA Guides. Khella Dep. at 7; R.R. at 15a. Certification involves approval by the Bureau. Id. IRE Physician testified he performs "quite a number [of IREs] every month" at the Bureau's request. Id. Here, the Bureau designated IRE Physician to evaluate Claimant. Khella Dep. at 12; R.R. at 20a.
With regard to the active clinical practice requirement in Section 306(a.2)(1) of the Act, IRE Physician testified he maintains an active clinical practice of 20 hours or more. N.T. at 8; R.R. at 16a. Also, in his Impairment Rating Determination Face Sheet (IRE Face Sheet) in the present case, IRE Physician signed the following statement: "I attest that I am a physician licensed in the Commonwealth ... and that I have an active clinical practice of at least twenty (20) hours per week." See Khella Dep. at Ex. Khella-3; R.R. at 87a-88a.
Regarding Claimant's level of impairment, IRE Physician testified in detail regarding his evaluation. IRE Physician stated he reviewed Claimant's relevant medical records, took Claimant's history, and performed a physical examination. See Khella Dep. at 13-23; R.R. at 21a-31a; Khella Dep. at Ex. Khella-2 (Impairment Rating Evaluation, 3/27/10); R.R. at 80a-85a.
Ultimately, IRE Physician opined within a reasonable degree certainty that Claimant reached maximum medical improvement at the time of the examination and that Claimant had a whole person impairment of eight percent. Khella Dep. at 22; R.R. at 30a. The WCJ accepted IRE Physician's testimony and opinions as credible. See F.F. Nos. 6-11. Consequently, Employer met its burden under Section 306(a.2)(2) of the Act, 77 P.S. §511.2(2), of establishing an impairment rating of less than 50 percent of the whole body.
Viewing IRE's testimony as a whole, we do not believe his response on cross-examination, that he averages 20 hours per week of active clinical practice, renders his otherwise competent medical opinion incompetent under the Act. See Casne v. Workers' Comp. Appeal Bd. (Stat Couriers, Inc.), 962 A.2d 14 (Pa. Cmwlth. 2008) (the opinion of a medical expert must be viewed as a whole; a medical opinion is not rendered incompetent unless it is based on inaccurate or false information); Inservco Ins. Servs. v. Workers' Comp. Appeal Bd. (Purefoey), 902 A.2d 574 (Pa. Cmwth. 2006) (answers given on cross-examination do not, as a matter of law, destroy the effectiveness of answers proffered during direct examination; rather, the testimony will be assessed as a whole). Rather, we hold that the record, viewed in its entirety, established that IRE Physician maintained the minimum active clinical practice required by Section 306(a.2)(1) of the Act. As such, the WCJ erred in finding IRE Physician's testimony incompetent on this ground. Casne.
III. Conclusion
For the above reasons, we discern no error in the Board's order reversing the WCJ's denial of Employer's modification petition and modifying Claimant's disability status from total to partial as of IRE Physician's March 2010 evaluation. Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 25th day of November, 2013, for the reasons stated in the foregoing opinion, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge