PA Workers' Compensation - Impairment Rating Evaluation, Maximum Medical Improvement - Neff v. WCAB
Neff v. Workers' Compensation Appeal Board
Commonwealth Court of Pennsylvania Decision January 8, 2015
Overview
HOLDINGS: [1]-In a workers' compensation case, because a physician's credited medical opinions established that the claimant had reached maximum medical improvement in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, the employer's modification petition was not based on an invalid impairment rating evaluation under 77 Pa. Stat. Ann. § 511.2(1)
Opinion:
(Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board), dated January 9, 2014. The Board affirmed the decision of a Workers' Compensation Judge (WCJ), which granted the modification petition filed by the Pennsylvania Game Commission (Employer) pursuant to the Workers' Compensation Act (Act).1 For the reasons set forth below, we now affirm.
Claimant suffered an injury while in the course and scope of her employment with Employer on February 20, 2004. On April 30, 2004, Employer issued a Notice of Temporary Compensation Payable, which described the injury as "right
On January 7, 2011, Employer filed a modification petition against Claimant, maintaining the position that Claimant's temporary total disability status due to the right lateral epicondylitis injury had resolved into a permanent impairment of less than 50%, allowing for a modification of wage loss benefits from temporary total disability to partial disability. [**3] Employer based its modification petition on an impairment rating evaluation (IRE) performed by William R. Prebola, Jr., M.D.,2 on December 15, 2010, which resulted in a determination that Claimant had reached maximum medical improvement (MMI) and had suffered a whole person impairment rating of 1%. Claimant filed an answer to the modification petition, denying that the IRE established partial disability, and a WCJ held hearings on the matter. Following the hearings, the WCJ issued a decision granting Employer's modification petition based on the results of the IRE and modified Claimant's benefits accordingly. Claimant then appealed to the Board, which affirmed. Claimant now petitions this Court for review.
On appeal,Claimant essentially argues that the Board and WCJ erred in [*294] granting Employer's modification petition because the modification petition was based upon an invalid IRE. Claimant argues that an IRE is premature and invalid as a matter of law when there is a reasonable potential for the claimant to undergo future surgery [**4] that could cause a change in her condition, as a claimant cannot be at MMI in such a circumstance. Claimant argues that such is the case here, as it is undisputed that Claimant could undergo additional surgery in an attempt to improve her elbow condition, and, therefore, Claimant has not yet reached MMI. In support of her position, Claimant largely relies upon our decision in Combine v. Workers' Compensation Appeal Board (National Fuel Gas Distribution Corp.), 954 A.2d 776 (Pa. Cmwlth. 2008), appeal denied, 600 Pa. 765, 967 A.2d 961 (Pa. 2009), and further argues that Combine is factually indistinguishable from this case and thus controlling. Claimant also argues that the WCJ and Board capriciously disregarded or otherwise misconstrued the evidence contradicting Dr. Prebola's medical opinions.
We conclude that the decisions below are not in
When an
If the determination as to a claimant's degree of impairment results in an impairment rating of 50% or greater, the claimant is presumed to be totally disabled and will continue to receive total disability compensation benefits. 77 P.S. § 511.2(2). If, however, [**6] such a determination results in an impairment rating of less than 50%, the claimant shall receive partial disability benefits after proper notice of the modification is given.5Id.
In Combine, this Court held that an IRE physician must first determine that a claimant has reached MMI before calculating an impairment rating. Combine, 954 A.2d at 780. As quoted in Combine, the Guides provide the following information regarding MMI:
2.3c When are impairment ratings performed?
Only permanent impairment may be rated according to the Guides, and only after the status [**7] of "Maximum Medical Improvement" (MMI) is determined, as explained in Section 2.5e. Impairment should not be considered permanent until a reasonable time has passed for the healing or recovery to occur. This will depend on the nature of underlying pathology, as the optimal duration
. . . .
2.5e Maximum Medical Improvement
Maximum Medical Improvement refers to a status where patients are as good as they are going to be from the medical and surgical treatment available to them. It can also be conceptualized as a date from which further recovery or deterioration is not anticipated, although over time (beyond 12 months) there may be some expected change . . . [.]
Thus, MMI represents a point in time in the recovery process after an injury when further formal medical or surgical intervention cannot be expected to improve the underlying impairment. Therefore, MMI is not predicated on the elimination of symptoms and/or subjective complaints. Also, MMI can be determined if recovery has reached the stage where symptoms [**8] can be expected to remain stable with the passage of
Id. at 779. As stated in Combine, "[t]he 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. at 781.
Here, Dr. Prebola testified that based on his examination of Claimant, her history, and her records, Claimant had right lateral epicondylitis, which was the work-related medical condition from the February 20,
At this time frame, a surgery would still be a reasonable treatment option. I still believe she is going to have permanent damage. I do not believe that a surgery is going to cure her. And I believe you mentioned that she testified that someone told her that there could be a 25 percent improvement. So she may have some improvement of her symptoms, but she's still going to have
So putting all that together she would still be at [MMI] because MMI defines that the patient can still get additional treatment, and the patient would still have waxing and waning symptoms. And I believe that's what [Claimant] would have.
(R.R. at 116a-17a.) [**10] Dr. Prebola also opined that the surgery would not be significantly
Whether a claimant has reached MMI is a matter of
Moreover, such an approach to a determination of MMI is consistent with our well-settled precedent that determinations as to evidentiary weight and credibility are solely for the WCJ as fact-finder. See
Here, the WCJ found persuasive and credible Dr. Prebola's medical opinions that Claimant had reached MMI by the date of the IRE on December 15, 2010, and that the ongoing effects of the acknowledged work injury have resulted in a 1% whole person impairment. (WCJ Decision at 7.) The WCJ based his credibility determination on Dr. Prebola's demonstrated familiarity with Claimant's medical history, his clear and logical expression of opinion, the consistency of his explanations, the corroboration of his opinions, in part, by Vincent F. Morgan, M.D.,6 the [*297] lack of any significant qualification or retraction of his opinions despite a thorough cross-examination, and the absence of specific medical opinions disputing his opinions of MMI and the percentage of impairment. (Id.) Thus, because Dr. Prebola's credited medical opinions establish that Claimant had reached MMI in accordance with the Guides, Employer's modification petition was not based on an invalid IRE.
FOOTNOTE 6
Dr. Morgan performed an independent medical examination (IME) of Claimant on March 31, 2010. (R.R. at 123a.) In his report, Dr. Morgan explained that "[i]nsofar as lateral [**12] epicondylitis is concerned, [Claimant] has reached [MMI] from a conservative point of view." (R.R. at 126a.) Although Dr. Morgan further explained that "[i]f [Claimant] elects to proceed with surgery[,] . . . [MMI] will be achieved within three months of
END FOOTNOTE 6
Furthermore, we reject Claimant's argument that this matter is factually indistinguishable from Combine. In Combine, we determined that the IRE physician's testimony did not establish that Claimant was at MMI, reasoning:
[The IRE physician] indicated that Claimant had a partial knee replacement with a
We are troubled by the fact that when [the IRE physician] was specifically asked whether or not Claimant was at MMI, he explained that he did not (continued...) believe a finding of MMI was required under Pennsylvania law and therefore he did not address the issue. He added, "I usually don't take that question because that requires a different kind of evaluation."
This Court is mindful that medical experts need not use magic words so long as the expert's testimony taken as a whole fairly supports the proposition at issue. [The IRE physician] was asked point blank, however, whether Claimant had reached MMI and [**14] failed to give a response to the call of the question. Moreover, without qualifying what he would have done differently, [the IRE physician] indicated that if he were required to make a finding of MMI, he would have done a "different kind of evaluation." Such statement significantly impacts our ability to find that Claimant was at MMI at the time [the IRE physician] conducted his examination. Therefore, this Court is constrained to find that [the IRE physician] failed to establish Claimant was at MMI and that his determination that Claimant had a twenty percent impairment was not calculated in accordance with the most recent edition of the Guides.
Combine, 954 A.2d at 781-82 (citations omitted).
Here, when asked how he performs an IRE, Dr. Prebola testified as follows:
Well, you obviously follow the rules of the . . . Guides, . . . review any records that are available, review any diagnostic tests that are available, then I'll take a history. Then after putting all that information [*298] together, if I feel the patient is at [MMI], then I'll proceed with performing the impairment rating evaluation.
In [Claimant's] case, that's exactly what I did.
(R.R. at 93a.) Moreover, as discussed above, Dr. Prebola unequivocally and [**15] repeatedly opined that Claimant had reached MMI, regardless of whether she undergoes surgery in the future, and that Claimant had an impairment rating of 1%. Again, because Dr. Prebola's credited testimony establishes that Claimant was at MMI and that his impairment rating was calculated in accordance with the most recent edition of the Guides, Claimant is not entitled to a reversal based on Combine.7
Accordingly, we affirm the order of the Board.