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Westmoreland Regional Hospital v. Workers' Compensation Appeal Board (Pickford

September 23, 2011

WESTMORELAND REGIONAL HOSPITAL, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (PICKFORD), : RESPONDENT :



The opinion of the court was delivered by: BY Judge Leavitt

Argued: November 10, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION

Westmoreland Regional Hospital (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (Judge) denial of Employer's modification petition. Employer sought to modify the disability status of Linda Pickford (Claimant) after an impairment rating evaluation (IRE) yielded a total body impairment of less than 50 percent. The Board denied Employer's petition after finding the impairment rating to be invalid because it assigned a zero impairment rating to a work-related condition that was asymptomatic when the IRE was performed, but exhibited symptoms several months later. Concluding that it is the claimant's physical condition at the time of the IRE that governs the validity of the IRE, we reverse.

Claimant worked for Employer as a registered nurse. On July 4, 1997, a patient's bed collapsed, hitting Claimant. Employer issued a Notice of Compensation Payable (NCP) describing the injury as cervical and lumbar sprains. Thereafter, Employer sought a termination or suspension of benefits. In April 1999, the WCJ denied Employer's petition for the stated reason that Claimant was not fully recovered and could not resume her pre-injury job. In doing so, the WCJ credited the opinion of Claimant's treating physician, Gerald P. Durkan, M.D., that Claimant's work injury included cervical disc injuries, brachial plexus stretch, a lumbar strain and reflex sympathetic dystrophy (RSD).*fn1 Thus, the WCJ's decision expanded the list of Claimant's work injuries.

Employer then requested the Department of Labor and Industry to appoint a physician to perform an IRE of Claimant to determine the degree of her total body impairment. Under Section 306(a.2) of the Workers' Compensation Act (Act), *fn2 IREs are governed by using the American Medical Association Guides to the Evaluation of Permanent Impairment.*fn3 This means that the IRE physician must perform the examination and calculate the impairment rating according to the mandates of the AMA Guides. Barrett v. Workers' Compensation Appeal Board (Sunoco, Inc.), 987 A.2d 1280, 1287 (Pa. Cmwlth.), appeal denied, ___ Pa. ___, 13 A.3d 480 (2010). On September 27, 2006, Milton J. Klein, D.O., performed the requested IRE, and concluded that Claimant had a total body impairment of 22 percent. As a result, Employer filed a modification petition seeking to have Claimant's disability status changed from total to partial based on the IRE results.*fn4 Claimant filed an answer opposing the modification.

In support of its petition, Employer submitted the deposition testimony of Dr. Klein who is board certified in, inter alia, physical medicine and rehabilitation. Dr. Klein performed a complete physical examination of Claimant's neck, arms and back, and found her to manifest four conditions capable of being rated under the most recent edition of the AMA Guides at the time of the IRE: chronic discogenic cervical pain, chronic discogenic lower back pain, and bilateral shoulder pain with impingement. Dr. Klein assigned an impairment rating of five percent to the cervical region and five percent to the lumbar region caused by Claimant's disc problems. Because he found limitations in the range of motion for both shoulders, Dr. Klein assigned an impairment of seven percent for the right arm and six percent for the left arm. These ratings resulted in a 22 percent whole body impairment.

Dr. Klein acknowledged Claimant's work-related conditions of RSD and a brachial plexus injury, but he found no objective evidence of either condition in his physical examination. The AMA Guides require objective evidence of a condition in order to rate it.*fn5 Dr. Klein then explained that the AMA Guides also require the exhibited condition to impair the person in some way. For RSD to be rated, it must cause a sensory or motor impairment. Because Claimant did not exhibit either objective evidence of RSD or any sensory or motor impairment in her arms, Dr. Klein assigned Claimant's RSD a zero impairment rating. Dr. Klein clarified that he was not opining that Claimant did not have RSD, stating:

All I'm saying is when I examined [Claimant] on September 27, '06, I did not find any objective findings of reflex sympathetic dystrophy [RSD].... The purpose [of the examination] was for impairment rating. So, I basically took her as she was when I saw her.... I generated the impairment rating evaluation based on the AMA guidelines.

Reproduced Record at 268a, 269a (emphasis added).

Likewise, Dr. Klein assigned the brachial plexus injury a zero impairment rating because Claimant exhibited no objective signs of this injury nor any sensory or motor impairment on the day of his examination. Dr. Klein explained that a brachial plexus injury could cause the type of painful shoulder motion Claimant displayed. However, he attributed the painful motion to the shoulder impingement for which he had already provided an impairment rating. Notably, the shoulder impingement, responsible for 13 percent of Claimant's total body impairment rating of 22 percent, was not one of her accepted work injuries.

In opposition, Claimant submitted the deposition testimony of Emilio R. Navarro, M.D., who is board certified in pain management and has been treating Claimant for pain management since 1998. Dr. Navarro testified that as a result of her neck injury, Claimant developed RSD affecting both arms. These RSD symptoms include burning pain; increased skin sensitivity; changes in skin temperature, color and texture; sparse hair growth; joint swelling and stiffness; and difficulty moving her arms. Dr. Navarro acknowledged that some of Claimant's symptoms are subjective and that the objective symptoms, such as skin temperature and sensitivity, can wax and wane. Dr. Navarro opined that over time, however, Claimant's RSD has progressed and that she needs continued pain management. He opined that Claimant is not capable of working because of the RSD. Dr. Navarro did not testify about any of Claimant's other work injuries, including brachial plexus stretch.

Dr. Navarro testified that he believed that he was on the Department's list of approved physicians that can be appointed to perform an IRE for the Department. However, he did not do an IRE of Claimant. Dr. Navarro was critical of Dr. Klein's IRE examination, noting that Dr. Klein saw her on one occasion. Dr. Navarro also stated that he did not consider Dr. Klein truly "independent" because Employer had hired him to perform the examination.

Claimant treated with Dr. Navarro from March 2000 to September 2007, and those medical records were admitted into evidence. In these records, Dr. Navarro documented objective evidence of RSD in Claimant on some visits but not on others. Critically, the records showed that Dr. Navarro saw Claimant on September 26, 2006, the day before the IRE, but he did not document any objective findings of RSD. R.R. 203a-204a.

The WCJ rejected Dr. Klein's impairment rating of 22 percent because it did not include a rating for two of Claimant's work injuries, i.e., the RSD and brachial plexus stretch. The WCJ acknowledged Dr. Klein's testimony that he did not rate Claimant for RSD because she did not exhibit the clinical signs required by the AMA Guides during his examination of her. The WCJ did not find Dr. Klein incredible or reject his assertion that objective evidence is needed before an impairment rating can be assigned to a condition, such as RSD. However, the WCJ rejected the IRE for the stated reason that Dr. Navarro found Claimant to exhibit objective evidence of RSD five months after the IRE. The WCJ explained her reasons for relying on Dr. Navarro as follows:

Dr. Navarro's observations are credible since he, unlike Dr. Klein, who only evaluated [Claimant] on one occasion, had the opportunity to evaluate [Claimant's] condition over time and become aware of the fluctuations in her condition. Although Dr. Navarro's notes do not document physical examination findings consistent with reflex sympathetic dystrophy near the time of Dr. Klein's evaluation, they do show the presence of these findings before and after Dr. Klein's evaluation. Dr. Klein admitted that it was possible for [Claimant] to be better or worse if he saw her on a different date.

WCJ decision, March 28, 2008, at 3; Finding of Fact 8d (emphasis added). Rejecting the IRE, the WCJ held that Employer failed to meet its burden of proof and denied Employer's modification petition.

Employer appealed, and the Board affirmed. The Board concluded that Dr. Klein's impairment rating was invalid because it did not include a rating for Claimant's RSD and brachial plexus stretch. The Board acknowledged that Dr. Klein's examination covered each of Claimant's work injuries. However, it concluded that Dr. Klein's assignment of a zero impairment rating for Claimant's RSD and brachial plexus stretch was the equivalent of rejecting these established work injuries. The Board further determined that Dr. Navarro's testimony that Claimant exhibited symptoms of RSD several months after the IRE was fatal to Dr. Klein's IRE. Employer now petitions for this Court's review.*fn6

On appeal, Employer argues that the Board erred in denying its petition to modify Claimant's benefit status on the basis of Dr. Klein's IRE, which was conducted in accordance with the Act. First, Employer rejects the Board's observation that Dr. Klein's opinion did not accept Claimant's work injury. Second, Employer argues that the WCJ and the Board both erred in concluding that Dr. Klein's impairment rating was invalid simply because he did not assign a rating to two of Claimant's work injuries, which were asymptomatic when the IRE was done. Third, Employer argues that the WCJ erred in relying on Dr. Navarro's testimony, rather than on Dr. Klein's own physical examination, which was performed in accordance with the AMA Guides. We address these issues seriatim. Employer first argues, correctly, that the Board erred in asserting that Dr. Klein did not accept Claimant's work injury. The sole purpose of an IRE is to assess the claimant's degree of impairment. Sign Innovation v. Workers' Compensation Appeal Board (Ayers), 937 A.2d 623, 628 (Pa. Cmwlth. 2007). This is precisely what Dr. Klein did. Dr. Klein acknowledged that the work injury included brachial plexus stretch and RSD, and he specifically searched for evidence of both conditions in his physical examination. Dr. Klein did not opine that Claimant had not sustained those injuries, and he did not opine that Claimant was completely recovered from these conditions. He simply explained that he did not find objective evidence of those conditions, or that they impaired Claimant, on the day of the IRE.

Employer next argues that the Board erred in holding that an IRE physician must assign an impairment rating greater than zero to each work injury in order for the impairment rating to be valid. In fact, this error of the Board has been established. Barrett, 987 A.2d 1280, appeal denied, ___ Pa. ___, 13 A.3d 480 (2010), which was decided after the Board decided this appeal, held that an IRE that assigns a zero impairment rating to a work injury does not render the IRE invalid.*fn7 This is because the AMA Guides require objective evidence before a condition can be rated. Here, Dr. Klein found no objective evidence of either RSD or brachial plexus stretch and neither did Dr. Navarro one day before the IRE. In the absence of objective evidence, Dr. Klein could not assign more than a zero percent impairment to either condition without violating the AMA Guides.*fn8 Barrett, 987 A.2d at 1288. Employer prevails on its second issue.

We turn, then, to Employer's final issue. Employer contends that because an IRE takes place on one specific day, the only relevant consideration is the claimant's condition on that day. Employer notes that Dr. Navarro's testimony credited by the WCJ, actually supports Dr. Klein's impairment rating. This is because Dr. Navarro also did not document any objective signs of RSD one day before Dr. Klein examined Claimant.

Claimant concedes that Dr. Klein performed the IRE in accordance with the AMA Guides. Claimant also admits, as she must, that Dr. Navarro did not document objective findings of RSD in his examination of Claimant one day before Dr. Klein's IRE. However, Claimant rejects the notion that the impairment rating must be based on the Claimant's condition at the time of the IRE. Instead, Claimant contends that an IRE will be rendered invalid by medical records showing objective signs of a claimant's work injuries before and after the IRE.*fn9

The employer who requests an IRE beyond 60 days following 104 weeks of total disability, as is the case here, must file a petition to have the claimant's status changed from total to partial. Diehl v. Workers' Compensation Appeal Board (I.A. Construction), 607 Pa. 254, 279, 5 A.3d 230, 245 (2010). Our Supreme Court has explained that when an employer files such a petition, 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.... The physician who performed the IRE is subject to cross-examination, and the WCJ must make appropriate credibility findings ...


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