Arvilla Oilfield Services, Inc. and State Workers' Insurance Fund, Petitioners
Workers' Compensation Appeal Board (Carlson), Respondent
Appealed from No. A11-1625. State Agency: Workers' Compensation Appeal Board.
Joseph P. Vendetti, Erie, for petitioners.
Matthew J. Parini, Erie, for respondent.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY JUDGE LEAVITT. DISSENTING OPINION BY PRESIDENT JUDGE PELLEGRINI.
MARY HANNAH LEAVITT, Judge
Arvilla Oilfield Services, Inc. (Employer) and the State Workers' Insurance Fund petition for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying Employer's modification petition. Employer sought to modify the disability status of Paul Carlson (Claimant) from total to partial because Claimant had a total body impairment rating of less than 50 percent. The Board set aside the impairment rating evaluation (IRE) because the Workers' Compensation Judge (WCJ) found that Claimant had not yet reached maximum medical improvement when the IRE was done. Concluding that the WCJ's finding is not supported by substantial and competent evidence, we vacate and remand for further findings.
Claimant worked for Employer as an oil field operator. On July 20, 2004, Claimant was injured when he was struck by heavy tubing. Employer issued a Notice of Compensation Payable (NCP) accepting the work injury as a " labral tear" of the right hip as well as strains and contusions to the low back and right shoulder. The NCP also accepted liability for payment of total disability benefits. Reproduced Record at 2a (R.R. ).
In December 2004, Claimant underwent arthroscopic surgery on his right hip. This was followed by a total hip replacement in October 2005. Claimant filed a claim petition seeking payment of medical bills associated with these surgeries, which the WCJ granted in March 2007. The WCJ concluded that although Claimant had pre-existing degenerative disease in his right hip, the surgeries were necessitated by Claimant's work injury.
In December 2009, Employer filed a modification petition, alleging that Claimant had fully recovered from the work injuries to his low back and right shoulder. However, Employer stipulated that Claimant had not fully recovered from his hip injury. Presumably, this is why Employer filed a modification rather than a termination petition. The petition was assigned to a WCJ.
At the hearing, Claimant testified that his hip surgeries did not resolve all of his symptoms. Claimant's hip pain requires that he walk with a cane. Muscle tightness between Claimant's hip and back also causes pain, although the pain has been relieved somewhat by an electrical stimulator implanted in his back. He explained that Dominic M. Sciamanda, D.O., treats Claimant's muscle tightness by manipulation and prescribes pain medications.
Dr. Sciamanda, who is board certified, inter alia, in neuromusculoskeletal medicine and osteopathic manipulative medicine, testified by deposition. Dr. Sciamanda began treating Claimant on July 14, 2008, for pain in his right hip and low back. Dr. Sciamanda diagnosed Claimant with lumbar degenerative disc disease also known as lumbosacral spondylosis; chronic pain; low back spasm; and multiple nonallopathic lesions from the head to the pelvis. Dr. Sciamanda opined that Claimant's abnormal gait after the work injury caused his pre-existing degenerative back condition to become symptomatic. Because Dr. Sciamanda had not seen Claimant before his work injury and, thus, did not know whether he suffered back pain before his injury, he could " only assume that" Claimant's work injury caused his ongoing pain.
R.R. 45a. Dr. Sciamanda attributed some of Claimant's back pain to his hip problems. Noting that Claimant had been diagnosed with lumbar radiculopathy, Dr. Sciamanda also attributed that condition to the work injury.
Dr. Sciamanda explained that the goal of his treatment is to reduce Claimant's pain and to increase his mobility, range of motion and functionality. When asked whether he believes Claimant is making progress toward this goal, Dr. Sciamanda responded as follows:
It would appear so. He certainly has setbacks at times where we have to kind of backtrack and move forward. Again, however, overall he seems to be making progress.
R.R. 46a-47a. Dr. Sciamanda testified that he had not released Claimant to perform any type of work, even sedentary.
Based on Dr. Sciamanda's deposition, Claimant filed a petition to review compensation benefits to add lumbar radiculopathy and lumbar spondylosis to the NCP. The petition also alleged that Claimant's condition has worsened since the WCJ rendered his decision in 2007.
Employer offered the deposition testimony of Jon Alexander Levy, M.D., a board certified orthopedic surgeon who performed an independent medical examination (IME) of Claimant on October 14, 2009. Dr. Levy took a history from Claimant, reviewed his medical records and performed a physical examination. Dr. Levy noted that Claimant had a history of pre-existing lumbar degenerative disc disease with significant pain complaints that had led Claimant to seek medical treatment two months before his work injury. Lumbar spine MRIs performed in July 2004 and August 2006, both post-injury, showed no acute injury, only the pre-existing degenerative changes that were not affected by the work injury. Dr. Levy opined that Claimant was fully recovered from his work-related right shoulder strain and low back strain. He opined that any ongoing back complaints were due to Claimant's pre-existing disc degeneration. In his IME report, Dr. Levy opined that Claimant's hip injury had reached maximum medical improvement. 
Before Employer's modification petition was decided, it requested that Claimant undergo an IRE in accordance with Section 306(a.2) of the Workers' Compensation Act (Act). The Department of Labor and Industry assigned Jeffrey M. Moldovan, D.O., to perform the IRE, which took place on June 3, 2010. Dr. Moldovan opined that Claimant had a ten percent impairment rating caused by the work injury. On the basis of this opinion, Employer filed a second modification petition to modify Claimant's disability status from total to partial. This petition was consolidated with the pending petitions.
In support of its IRE modification petition, Employer submitted Dr. Moldovan's IRE report and his deposition testimony. Dr. Moldovan is board certified in family medicine and emergency medicine and is on the Department's list of approved physicians certified to perform IREs. When Dr. Moldovan saw Claimant on June 3, 2010, Claimant walked with an altered gait and used a cane. A physical examination revealed discomfort and some limitations
with the right hip. Using the sixth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, which was the most recent edition, Dr. Moldovan assigned a 25 percent impairment to Claimant's hip and lower extremity. Claimant told Dr. Moldovan that he was not experiencing any symptoms in his right shoulder or low back, and the physical examination of those areas was normal. Dr. Moldovan assigned a zero percent impairment to Claimant's right shoulder and low back. Together, the 25 percent impairment rating for Claimant's hip and lower extremity and the zero percent impairment rating for his right shoulder and low back resulted in a ten percent whole person permanent impairment attributable to the work injury. Dr. Moldovan testified that at the time he performed the IRE, Claimant had reached maximum medical improvement, also known as MMI. Dr. Moldovan explained:
The MMI basically is this, sir, that he's as good as he's going to get based upon the current surgical and medical treatment available to him. However, what MMI does allow for is ongoing progression due to either aging process or passage of time, so [Claimant] may have ongoing symptoms. And, in fact, he may at some point deteriorate and require different intervention, but at the time I saw him he was truly at maximum medical improvement.
Claimant cross-examined Dr. Moldovan at his deposition. However, Claimant presented no evidence in opposition to Dr. Moldovan's IRE report or deposition.
Crediting Dr. Levy's opinion, the WCJ found that Employer proved that Claimant had fully recovered from his right shoulder injury and granted Employer's modification petition with respect to that injury. However, the WCJ rejected Dr. Levy's opinion that Claimant had fully recovered from his low back strain, noting that Dr. Levy did not address the effect Claimant's hip injury and altered gait would have on his work-related back strain. Because the WCJ found that ...