Opinion
No. 932 C.D. 2012
04-18-2013
Mary Stocklin, Petitioner v. Workers' Compensation Appeal Board (Dollarland, Inc.), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Mary Stocklin (Claimant) petitions for review of the March 27, 2012 order of the Workers' Compensation Appeal Board (Board) affirming the decision of Workers' Compensation Judge Kelly F. Melcher (the WCJ) to grant a modification petition filed by Dollarland, Inc. (Employer). We affirm.
Claimant suffered a work-related injury on October 13, 1997, while she was removing boxes from a skid. (Reproduced Record (R.R.) at 12a.) The parties executed an Agreement for Compensation (Agreement) on November 18, 1997, recognizing an injury in the nature of "cervical sprain/strain and bilateral overuse syndrome." (R.R. at 2a.) Claimant began receiving $170.10 per week based on an average weekly wage of $189.00. (R.R. at 2a, 144a.)
Subsequently, Claimant filed a review petition seeking to amend the accepted injury to include the "specific loss of use" of her right hand; a scar on her neck; carpal tunnel of her left hand; low back pain with radiculopathy; and psychological injury. (R.R. at 7a.) During a hearing before WCJ Aida Harris, Claimant presented the testimony of Sofia Lam, M.D., a board-certified anesthesiologist with a subspecialty board in interventional pain management. Dr. Lam opined that Claimant "had lost the use of her right hand for all practical intents and purposes." (R.R. at 13a.) Dr. Lam stated that Claimant "had difficulty lifting anything heavier than five pounds," was "unable to hold a pen because she had significant atrophy of the muscles," and "had constant numbness." Id. WCJ Harris accepted Dr. Lam's testimony, finding it to be "competent, credible, and entirely persuasive." (R.R. at 14a.) As a result, WCJ Harris found that Claimant suffered the specific loss of her right hand for which she was entitled to compensation pursuant to section 306(c)(1) of the Workers' Compensation Act (Act). By order dated October 30, 2003, WCJ Harris granted Claimant's petition and amended the description of the injury to include specific loss of use of the right hand; disfigurement due to a 1½-inch scar on the anterior neck; carpal tunnel of the left hand; and low back pain with radiculopathy; but not a psychological injury.
Act as of June 2, 1915, P.L. 736, as amended, 77 P.S. §513(1).
Dr. Lam's testimony was offered in favor of the amendment of the Agreement to include each of the injuries proposed by Claimant's petition, with the exception of psychological injury. (R.R. at 13a-14a.)
Claimant was subsequently asked to undergo an Impairment Rating Evaluation (IRE). Francis W. Brooks, M.D., who is board-certified in family practice, conducted Claimant's IRE on June 20, 2009. (R.R. at 29a, 145a.) Based on the IRE, Employer filed a modification petition on August 5, 2009, requesting that Claimant's disability status be changed from total to partial. WCJ Melcher held a hearing on July 14, 2010 at which Employer offered Dr. Brooks' deposition testimony. Dr. Brooks testified that after examining Claimant, he determined that she had reached maximum medical improvement (MMI). (WCJ's Finding of Fact No. 1(j).) Dr. Brooks stated that he then calculated Claimant's impairment rating to be 19%, following the process dictated by the American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2007) (AMA Guides). (WCJ's Finding of Fact No. 1(g).) Dr. Brooks said that he based that determination on his own objective examination of Claimant and quantitative measurement of Claimant's physical capabilities as well as on medical records sent to him by PMA Insurance Company (PMA). (R.R. at 29a-41a; WCJ's Findings of Fact Nos. 1(c)-1(e).) When questioned about WCJ Harris' previous determination that Claimant had specific loss of use of her right hand, Dr. Brooks explained that, under AMA Guidelines, impairment and disability are not correlated equally. (WCJ's Finding of Fact No. 1(h).) On cross-examination, Dr. Brooks also testified that additional reports that he was supposedly not provided would not change his opinion. (WCJ's Finding of Fact No.
IREs are governed by section 306(a.2) of the Act, which states:
When an employe has received total disability compensation pursuant to clause (a), [77 P.S. §511], 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 impairment due to the compensable injury, if any.
IRE determinations not requested within sixty days of a claimant coming into possession of 104 weeks of total disability benefits are not self-executing; instead, an employer must resort to "traditional administrative process" to enforce them. Gardner v. Workers' Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 382, 888 A.2d 758, 768 (2005).
An IRE which shows a whole body impairment of less than 50% supports a change in an employee's status from total to partial disability. Section 306(a.2)(2) of the Act, 77 P.S. §511.2(2). The amount of weekly compensation is not affected, but the duration of benefits is reduced to 500 weeks. Section 306(a.2)(3) of the Act, 77 P.S. §511.2(3).
During her testimony, Claimant, now proceeding pro se, alleged that there were certain inconsistencies between medical reports provided to Dr. Brooks by PMA and reports provided to her by the doctors who created them, but she did not produce copies of these reports to support her claims. (WCJ's Finding of Fact No. 2(d).) Claimant also disputed Dr. Brooks' impairment rating of 19%, arguing that he did not have all of her medical records available to him on which to base his opinion. (WCJ's Finding of Fact No. 2(e).) Specifically, Claimant testified that Dr. Brooks was not given reports from either Moss Rehabilitation or a Dr. Gillis, who treated her for eye-related concerns in 2009. Following the close of the record, the parties were provided the opportunity to submit briefs, which Claimant declined.
Although Claimant was represented by counsel until June 30, 2009, an order issued on that date by WCJ Melcher permitted her counsel to withdraw, apparently at Claimant's request. (R.R. at 144a.)
After identifying these two providers' reports as missing from Dr. Brooks' IRE report, Claimant was asked if there was "anything in terms of reports of Dr. Brooks or the IRE that you would like to go over as far as your testimony on this?" Claimant answered "No." (R.R. at 132a.)
By order dated September 14, 2010, WCJ Melcher granted Employer's petition and modified Claimant's status to partial disability. In doing so, WCJ Melcher noted that Dr. Brooks' testimony was "credible and persuasive," based on his "clear explanations as to how he proceeded with the examination and with the impairment calculations." (WCJ's Finding of Fact No. 7.) WCJ Melcher also noted that Claimant provided no medical evidence to contradict Dr. Brooks' credible opinions concerning the MMI of Claimant and her 19% impairment rating. Id.
Claimant appealed to the Board, asserting that Dr. Brooks failed to consider all relevant information in performing the IRE, including medical records supposedly not provided to him and the October 30, 2003 decision of WCJ Harris. (R.R. at 151a-54a.) The Board affirmed WCJ Melcher's decision.
On appeal to this Court, Claimant, again represented by counsel, first argues that Dr. Brooks failed to properly consider Claimant's acknowledged specific loss of use of her right hand, making the IRE invalid. Claimant's argument is essentially as follows. A previous judicial determination under section 306(c) of the Act, 77 P.S. §513, established that Claimant sustained a compensable specific loss of use of her right hand. To establish entitlement to specific loss benefits under section 306(c) of the Act, Claimant had to prove that she suffered the permanent loss of use of her hand for all practical intents and purposes. Because "[p]ermanent loss of the use of a hand . . . shall be considered as the equivalent of the loss of such hand," section 306(c) of the Act (emphasis added), and because an IRE is supposed to measure "permanent impairment of the whole body resulting from the compensable injury," section 306(a.2) of the Act, 77 P.S. §511.2(8)(ii), Dr. Brooks' IRE determination should have reflected a 100% impairment of Claimant's right hand.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Claimant retained new counsel prior to the filing of her petition for review on May 16, 2012.
Faulkner Cadillac v. Workers' Compensation Appeal Board (Tinari), 831 A.2d 1248, 1254 (Pa. Cmwlth. 2003). --------
However, our courts have previously explained that "[i]mpairment and disability are not interchangeable terms." Diehl v. Workers' Compensation Appeal Board (I.A. Const.), 607 Pa. 254, 277, 5 A.3d 230, 244 (2010) (holding that the language of section 306(a.2) of the Act clearly shows that the Legislature contemplated different determinations for earning power and impairment). "[T]he inquiry made in an IRE is the degree of a claimant's impairment, and this is not the same as the inquiry into whether the claimant is disabled under the Act, i.e., whether the claimant is capable of performing some work." Sign Innovation v. Workers' Compensation Appeal Board (Ayers), 937 A.2d 623, 628 (Pa. Cmwlth. 2007) (holding that a subsequent IRE determination does not affect an employer's ability to seek modification of an employee's disability benefits based on earning capacity). In Pennsylvania, eligibility for specific loss benefits under the Act is based upon the opinion of a medical expert, whereas impairment determinations are made by using the impairment rating system of the AMA Guides. Westmoreland Regional Hospital v. Workers' Compensation Appeal Board (Pickford), 29 A.3d 120, 127 (Pa. Cmwlth. 2011) (holding that an IRE determination of 0% impairment for a given condition is not invalidated by medical opinions that objective signs of that condition existed before and after the IRE). Further, the loss of use of a body part for all practical intents and purposes does not necessarily equate to 0% functionality. Gindy Manufacturing Co. v. Workmen's Compensation Appeal Board, 378 A.2d 492, 495 (Pa. Cmwlth. 1977) (affirming a determination of specific loss where medical testimony indicated only a 55% loss of use). Accordingly, we reject Claimant's contention that the IRE is invalid due to the prior determination of specific loss under section 306(c).
Claimant also argues that the IRE is invalid because Dr. Brooks' impairment calculation ignores previously accepted compensable injuries diagnosed by Dr. Lam and fails to consider Claimant's pain which resulted from her work-related injuries. However, both the Act and the AMA Guides require an impairment rating to be based on the claimant's condition on the date of the IRE physician's evaluation. Westmoreland Regional Hospital, 29 A.3d at 128. "The IRE produces a snapshot of the claimant's condition at the time of the IRE, not a survey of the claimant's work-related injuries over a period of time." Id. Furthermore, Claimant's assertions are belied by the record, which includes Dr. Brooks' testimony that he considered pain and disability questionnaires completed by Claimant when conducting his impairment evaluation. (WCJ's Finding of Fact No. 1(f).) Moreover, in making this argument, Claimant is essentially challenging the weight assigned to Dr. Brooks' testimony, "a matter entrusted solely to the WCJ as the factfinder." Barrett v. Workers' Compensation Appeal Board (Sunoco, Inc.), 987 A.2d 1280, 1287 (Pa. Cmwlth. 2010) (refusing to disturb a WCJ's determination of a valid IRE, despite Claimant's challenges to the IRE doctor's methodology in conducting it). As factfinder, the WCJ must weigh the evidence and resolve conflicting testimony, and in doing so, "has the prerogative to accept or reject, in whole or in part, the testimony of any witness, including medical witnesses." Alpo Petfoods, Inc. v. Workers' Compensation Appeal Board (Neff), 663 A.2d 293, 295 (Pa. Cmwlth. 1995). "If supported by substantial evidence, a WCJ's findings are conclusive on appeal, despite the existence of contrary evidence." Watson v. Workers' Compensation Appeal Board (Special People in Northeast), 949 A.2d 949, 953 (Pa. Cmwlth. 2008). In this case, Dr. Brooks' testimony constitutes competent evidence to support the WCJ's findings and, therefore, they will not be disturbed on appeal. Id.
Claimant further argues that Dr. Brooks' conclusions and opinions were improperly based on an incomplete and inaccurate medical record. Claimant does not elaborate or cite any evidence to support this argument but cites Chik-Fil-A v. Workers' Compensation Appeal Board (Mollick), 792 A.2d 678 (Pa. Cmwlth. 2002), for the proposition that an expert's reliance on an incomplete and inaccurate medical history renders that expert's opinions incompetent. In Chik-Fil-A, we held that a treating physician's opinion as to causation was incompetent as a matter of law because it was based solely on an incomplete and inaccurate medical history provided to him by the claimant. Id. at 689. We noted that the doctor's testimony on causation had no competent basis, because "he had no knowledge of [c]laimant's prior relevant medical records and treatment, or any previous diagnostic test results." Id. (emphasis added).
Here, Dr. Brooks' opinion was limited to determining Claimant's condition on the date of his examination. (WCJ's Finding of Fact No. 1(e).) Dr. Brooks testified that his impairment rating was based upon not only his knowledge, skill, and expertise as an impairment rating physician but also upon the records that were sent to him in advance of the IRE. (WCJ's Finding of Fact No. 1(c).) WCJ Melcher found Dr. Brooks' explanations of how he proceeded with the examination and the impairment calculations to be persuasive. (WCJ's Finding of Fact No. 7.) Furthermore, "the fact that a medical expert does not have all of a claimant's medical records goes to the weight given the expert's testimony, not its competency." Huddy v. Workers' Compensation Appeal Board (U.S. Air), 905 A.2d 589, 593 (Pa. Cmwlth. 2006) (citing Marriott Corp. v. Workers' Compensation Appeal Board (Knechtel), 837 A.2d 623, 631 n.10 (Pa. Cmwlth. 2003)). Therefore, this question of evidentiary weight is also "within the exclusive province of the WCJ and [is] not subject to appellate review, absent a lack of substantial evidence to underpin those determinations." Chik-Fil-A, 792 A.2d at 687-88.
Finally, Claimant argues there was no valid determination that she reached MMI prior to Dr. Brooks completing the IRE. MMI of the claimant must be established before a physician can determine her impairment rating. Combine v. Workers' Compensation Appeal Board (Nat'l Fuel Gas Distribution Corp.), 954 A.2d 776, 781 (Pa. Cmwlth. 2008). "The [AMA] Guides instruct that an individual is at MMI when his condition has become static or stable and that while further deterioration or recovery may occur at some point in the future, one would not expect a change in condition at any time in the immediate future." Id. Claimant cites only Combine for support of her argument that Employer had to separately establish MMI before it was entitled to request the IRE with Dr. Brooks. However, Combine actually reflects otherwise: "the physician conducting the IRE must first determine that the claimant has reached MMI." Id. Therefore, Dr. Brooks' opinion that Claimant had reached MMI prior to performing the impairment evaluation, which was heard by WCJ Melcher at the July 14, 2010 hearing, (WCJ's Findings of Fact Nos. 1(f), 1(j)), is all that is required to support the finding that the IRE properly followed a valid determination of MMI.
Alternatively, Claimant argues that the MMI determination by Dr. Brooks was equivocal and erroneous. The assertion of equivocation is made without elaboration and, in fact, is not supported by the record. Further, Claimant's contention that there was a lack of medical evidence to support Dr. Brooks' determination of MMI involves another determination of evidentiary weight within the sole discretion of the WCJ. Universal Cyclops Steel Corp. v. Workers' Compensation Appeal Board, 305 A.2d 757, 761 (Pa. Cmwlth. 1973). Before WCJ Melcher, "Dr. Brooks opined that in spite of the surgical procedures Claimant underwent for her injuries and the treatment and rehabilitation that was provided, her condition reached a plateau and she had reached maximum medical improvement." (WCJ's Finding of Fact No. 1(f).) Therefore, we reject Claimant's assertion that this factual finding by WCJ Melcher lacked support.
For the foregoing reasons, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 18th day of April, 2013, the order of the Workers' Compensation Appeal Board dated March 27, 2012, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge