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Barrett v. Workers' Compensation Appeal Board

February 2, 2010

BYRON BARRETT, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (SUNOCO, INC.), RESPONDENT
SUNOCO, INC. (R&M) AND ESIS WILMINGTON WC, PETITIONERS
v.
WORKERS' COMPENSATION APPEAL BOARD (BARRETT), RESPONDENT



The opinion of the court was delivered by: Judge Leavitt

Submitted: September 25, 2009

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Byron Barrett (Claimant) and his employer, Sunoco, Inc. (Employer), have filed cross-petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board).*fn1 The Board affirmed the Workers' Compensation Judge's (WCJ) denial of Employer's petition to terminate benefits and his denial of Claimant's challenge to an impairment rating evaluation (IRE) that resulted in a whole person impairment rating of seven percent. The Board also ordered Employer to reimburse Claimant for his cost to depose the doctor who did the IRE. In this appeal, Claimant challenges the results of the IRE, and Employer challenges the imposition of costs for Claimant's deposition of the IRE doctor.

Claimant has worked as an "operator"*fn2 at Employer's refinery since the 1970s. On June 17, 2001, Claimant stepped on a hatch cover which gave way. Claimant fell through the hatch, injuring his left shoulder. Employer issued a Notice of Compensation Payable (NCP) describing the injury as a left shoulder strain or sprain and providing for payment of total disability benefits. Claimant underwent shoulder surgery and returned to work with Employer at a light-duty position with no wage loss. Accordingly, Employer suspended Claimant's benefits as of December 30, 2002.*fn3

On August 26, 2004, Claimant was involved in an automobile accident while being driven to an independent medical examination (IME), causing injuries to Claimant's neck and back. In November 2004, Employer issued a second NCP in which it "revised" the description of Claimant's work injury to include a "cerv[ical] and lumbar strain sprain" and provided for payment of total disability benefits. Reproduced Record at 2 (R.R. ___). Claimant underwent low back surgery after the accident and has not returned to work.

Pursuant to Section 306(a.2) of the Workers' Compensation Act*fn4 (Act), Employer requested the Bureau of Workers' Compensation to designate a physician to perform an IRE in order to determine Claimant's degree of impairment.*fn5 James F. Bonner, M.D., performed the IRE on July 27, 2005, and concluded that Claimant had a seven percent impairment. As a result, on October 26, 2005, Employer gave Claimant a Notice of Change of Workers' Compensation Disability Status Form (Notice) stating that his workers' compensation status would be changed from total disability to partial disability in accordance with Section 306(a.2)(2) of the Act.*fn6

Claimant filed a review petition challenging the validity of the IRE. Then, after receiving the Notice, Claimant filed a second review petition challenging the change of his disability status. Believing that Claimant had fully recovered from his work-related injuries, Employer filed a termination petition. Claimant's review petitions and Employer's termination petition were heard in one proceeding before the WCJ. After the hearing began, Claimant orally amended his review petitions to expand the description of his 2004 injuries in the NCP to include more than a strain or sprain of the neck and lower back.*fn7

Claimant testified live before the WCJ and by deposition. He explained that as a result of his 2001 injury, he continues to experience pain in his shoulder and has lost strength, which limits his shoulder function. He stated that he has experienced neck and low back pain since the August 2004 automobile accident and continues to experience significant pain, even after undergoing back surgery in January 2005. Claimant stated that he cannot return to his pre-injury operator job because it requires too much physical labor.

Claimant presented the testimony of Scott Rushton, M.D., a board certified orthopedic surgeon, who specializes in the spine. Dr. Rushton began treating Claimant on October 12, 2004, after his motor vehicle accident.*fn8 Dr. Rushton diagnosed Claimant with advanced lumbar disc degeneration in the base of the spine at L5-S1 that included a spondylolisthesis, meaning that the L5 bone had slipped forward onto the S1 bone. Dr. Rushton also diagnosed cervical spondylosis, which is cervical disc degeneration or arthritis. Dr. Rushton opined that these pre-existing degenerative conditions were exacerbated by the automobile accident, thereby necessitating Claimant's lumbar fusion surgery. The surgery improved Claimant's low back pain, but Claimant continues to report pain in his back and neck and has not recovered from the effects of the automobile accident.

Claimant also presented the testimony of Anthony Mela, Sr., D.O., a general practitioner who began treating Claimant on June 3, 2005, for pain in his left shoulder, neck and low back. In spite of pain medication and physical therapy, Claimant's symptoms have not improved. Dr. Mela opined that Claimant has not fully recovered from his shoulder, neck and back injuries and cannot return to his pre-injury job with Employer. He has prohibited Claimant from working at a job that involves lifting, bending, squatting, crawling, kneeling or climbing.

Claimant deposed James Bonner, M.D., the doctor who performed the IRE on July 27, 2005. Dr. Bonner is board certified in pain management, physical medicine and rehabilitation, and he is certified by the Bureau of Workers' Compensation to perform IREs. In connection with this certification, Dr. Bonner completed a course based on the fifth edition of the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides).

Dr. Bonner explained that there are two different models for determining impairment: the diagnosis-related estimate (DRE) model and the range of motion model. Dr. Bonner used the range of motion model for Claimant's left shoulder because the DRE model does not apply to shoulders. Because there was nothing objectively wrong in that area, a zero percent impairment for the shoulder was appropriate. However, because Claimant continued to complain of pain and had undergone shoulder surgery, Dr. Bonner set an impairment rating of three percent for the shoulder. Using the DRE model for Claimant's spine, Dr. Bonner found a twenty percent impairment of his lower back.*fn9 Five percent was attributable to the work-related exacerbation of his pre-existing condition, and the remaining fifteen percent was attributable to his pre-existing spondylolisthesis. Dr. Bonner found no objective abnormality in Claimant's cervical spine because his range of motion and deep tendon reflexes were normal. Therefore, Dr. Bonner was unable to assign an impairment rating to Claimant's neck condition. Based on Claimant's history, the physical examination and a review of numerous medical records, Dr. Bonner reached a whole person impairment rating of seven percent for Claimant.

Employer presented the testimony of Richard J. Mandel, M.D., a board certified orthopedic surgeon who performed IMEs of Claimant on October 19, 2004, and July 21, 2005. After the first IME, Dr. Mandel believed that Claimant had fully recovered from his 2001 shoulder injury. On the other hand, Dr. Mandel found that Claimant had not yet fully recovered from the mild sprain and strain of the neck and back he sustained in the 2004 automobile accident. After the second IME, Dr. Mandel opined that Claimant had also recovered from his neck and back sprain and strain; needed no further medical treatment for his work injuries; and was capable of returning to his pre-injury job without restrictions. Dr. Mandel did not believe that Claimant's automobile accident exacerbated his pre-existing cervical and lumbar degenerative conditions.

After reviewing the evidence, the WCJ credited the testimony of Claimant, Dr. Rushton and Dr. Mela. The WCJ also credited the testimony of Dr. Bonner. The WCJ rejected Dr. Mandel's testimony. Based on these credibility findings, the WCJ granted the review petition to add exacerbation of pre-existing degenerative neck and low back conditions to the NCP. However, the WCJ denied Claimant's other review petitions, concluding that Claimant failed to establish that the IRE completed by Dr. Bonner was invalid. The WCJ denied Employer's termination petition because Employer failed to prove Claimant fully recovered from his ...


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