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Wingrove v. Workers' Compensation Appeal Board (Allegheny Energy)

Commonwealth Court of Pennsylvania

January 3, 2014

Gregory S. Wingrove, Petitioner
Workers' Compensation Appeal Board (Allegheny Energy), Respondent

Submitted: October 18, 2013




Gregory S. Wingrove (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that amended the description of his work injury; affirmed the employer's change in his disability status from full to partial based on his impairment rating; and reinstated him to full disability status for a closed period of time. In so doing, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) on Claimant's three review petitions. Claimant argues that the Board erred because his employer did not prove the degree of his loss of earning power, which was required when he returned to full disability status for a closed period of time. Alternatively, Claimant argues that his change in disability status was unconstitutional because the employer's physician used standards adopted by the American Medical Association (AMA), not legislatively ordered standards, to determine the degree of his impairment. We affirm.

On November 25, 2002, Claimant sustained an injury while working as a laborer for Allegheny Energy (Employer). On December 6, 2002, Employer issued a notice of compensation payable (NCP) describing the injury as a low back strain. Claimant continued to work until May 5, 2003, when he underwent back surgery. The back surgery worsened his back pain and rendered him totally disabled. Employer paid Claimant total disability benefits for two years.

On July 5, 2005, Employer issued a Notice of Change of Workers' Compensation Disability Status to Claimant. The notice stated that Claimant's disability status had been changed from total to partial, as of May 1, 2005, based on an impairment rating evaluation (IRE) performed by Jon B. Tucker, M.D., who found Claimant to have a whole body impairment of 11%. The change was automatic and self-executing because the IRE was requested within 60 days of the claimant's receipt of 104 weeks of compensation. Gardner v. Workers' Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 888 A.2d 758 (2005).

Four years later, on May 18, 2009, Claimant challenged Dr. Tucker's IRE determination by filing two review petitions. The first review petition alleged that the description of injury in Employer's 2002 NCP should be amended to add mood disorder with depressive, psychotic and hypomanic symptomatology; a moderate to severe treatment-resistant pain disorder; and chronic, severe low back pain. The second review petition challenged Dr. Tucker's IRE because it did not take into account the above-listed psychiatric problems.

Then, in 2010, Claimant filed a third review petition in which he alleged that lumbar fusion surgery performed on March 24, 2010, rendered him "more than 50% disabled pursuant to the AMA Guidelines, " entitling him to total disability benefits. WCJ Decision, 1/10/2012, Finding of Fact No. 6. The third review petition requested another amendment to the NCP to include post laminectomy syndrome and chronic L5 radiculopathy.

On January 2, 2011, the parties entered into a Supplemental Agreement. The parties agreed that Claimant became totally disabled on March 24, 2010; was entitled to temporary total disability until November 29, 2010; and "was placed back on partial [disability] benefits" as of November 30, 2010. Reproduced Record at 205a (R.R. ___). The parties also agreed that "[t]he execution of the [Supplemental Agreement] does not have any effect on any pending petitions or on subsequently filed petitions." Id.

At the hearing on Claimant's three review petitions, Claimant testified about his condition. He stated that the pain in his legs is such that he is only comfortable lying down. In 2004, he began psychiatric treatment because of his feelings of rage and worthlessness. His psychiatrist prescribed Cymbalta and Depakote, which helped "somewhat" but did not eliminate these feelings. R.R. 373a.

Claimant presented the testimony of Lawson Bernstein, Jr., M.D., who is board certified in psychiatry and neurology. He diagnosed Claimant with a major depressive mood disorder associated with Claimant's chronic low back pain, with moderate to severe psychiatric symptomatology. He based his diagnosis on Claimant's report of auditory and visual hallucinations at night. Claimant experienced modest improvement with treatment but remained symptomatic.

Employer presented the testimony of Christine Martone, M.D., who is board certified in psychiatry. She evaluated Claimant on June 8, 2010, and found him to suffer from low level depression, which could have an unknown origin or be secondary to his back pain. She did not find Claimant to have psychotic symptomatology because he denied experiencing any auditory hallucinations. Claimant reported visual hallucinations of fog, lights and flashes while lying in bed at night, but Dr. Martone concluded they were not consistent with a psychotic process.

Employer also presented the testimony of James L. Cosgrove, M.D., who is board certified in physical medicine and rehabilitation. Dr. Cosgrove examined Claimant in 2007, 2008 and 2010. He agreed that Claimant suffered from post-laminectomy syndrome and chronic radiculopathy. He also concluded that Claimant had reached maximum medical improvement and was capable of doing light-duty work on a full-time basis.

The WCJ granted, in part, Claimant's review petition to expand the description of his work injury in the NCP. The WCJ found that Claimant suffered from chronic radiculopathy and post-laminectomy syndrome; chronic low back pain; and depression. These conditions were added to the NCP. Because the WCJ did not ...

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