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Verizon Pa. Inc. v. Workers' Comp. Appeal Bd. (Ketterer)

Commonwealth Court of Pennsylvania

March 12, 2014

Verizon Pennsylvania Inc., Petitioner
v.
Workers' Compensation Appeal Board (Ketterer), Respondent

Argued: February 11, 2014.

Appealed from No. A11-1757. State Agency: Workers' Compensation Appeal Board.

Zachary M. Rubinich and Ross J. Ventre, II, Philadelphia, for petitioner.

Kenneth N. Brodsky, Bala Cynwyd, and Daniel J. Siegel, Havertown, for respondent Arthur Ketterer.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY SENIOR JUDGE COLINS.

OPINION

Page 943

JAMES GARDNER COLINS, Senior Judge

Verizon Pennsylvania Inc. (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the denial of its Modification Petition on the ground that the physician who performed the Impairment Rating Evaluation (IRE) on which the Modification Petition was based did not meet the requirement of Section

Page 944

306(a.2) of the Workers' Compensation Act (the Act)[1] that physicians performing IREs must be " active in clinical practice for at least twenty hours per week." We affirm.

Arthur Ketterer, Jr. (Claimant), a service technician for Employer whose duties included installations and repairs for telephone, television and computer service, suffered a neck and back strain on August 27, 2008, when his work vehicle was rear-ended. Claimant has been receiving total disability benefits since 2008 for that injury under a Notice of Compensation Payable issued by Employer. On March 23, 2009, Employer filed a petition for termination of compensation, which was denied by the Workers' Compensation Judge (WCJ) on June 30, 2010.

On November 17, 2010, Employer filed a request with the Bureau of Workers' Compensation (Bureau) for designation of a physician to perform an IRE. The Bureau designated Dr. Elena Antonelli to perform the IRE. Dr. Antonelli examined Claimant on January 5, 2011, and issued an Impairment Rating Determination and IRE report finding that Claimant had reached maximum medical improvement and had a whole person impairment rating of 16%. (Impairment Rating Determination Face Sheet, R.R. at 153-154; IRE Report, R.R. at 143-152.) On February 10, 2011, Employer filed a Modification Petition seeking to change Claimant's status from total disability to partial disability based on Dr. Antonelli's IRE.

Dr. Antonelli is licensed to practice medicine in Pennsylvania and is board-certified in Occupational Medicine. (Trial Deposition of Elena Antonelli, M.D. at 6, R.R. at 83.) She has taken training on the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) that physicians are to apply in performing IREs and has performed IREs under both the fifth edition AMA Guides and the current, sixth edition AMA Guides. ( Id. at 7, R.R. at 84.) At the time of her examination of Claimant, Dr. Antonelli was approved by the Bureau as a certified IRE physician. ( Id. at 55-56, R.R. at 132-133; Exhibit D-1, R.R. at 67-68.) The Bureau's approval of Dr. Antonelli as an IRE physician was based on her 2008 application that listed as clinical experience her treatment of patients at Capital Health System. (Application for Approval as IRE Physician, R.R. at 165-172.)

At the time of the IRE, however, Dr. Antonelli did not treat or manage the care of any patients. (Antonelli Dep. at 7, 10-11, 36, 38-39, R.R. at 84, 87-88, 113, 115-116.) Dr. Antonelli had worked 20 hours a week or more treating patients at Capital Health System until February 2010, ten months before she performed the IRE of Claimant. ( Id. at 37-39, R.R. at 114-116.) Since she left Capital Health System in February 2010, her practice consisted solely of workers' compensation independent medical examinations, workers' compensation IREs, physical examinations for pilots to determine whether they satisfy Federal Aviation Administration certification requirements, commercial driver's license examinations, utilization reviews and peer reviews. ( Id. at 7, 10-11, 36, R.R. at 84, 87-88, 113.)

At her trial deposition on the Modification Petition, Dr. Antonelli testified:

Q. What does your current clinical practice entail?
A. I don't have that much of a clinical practice any longer. ...

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