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Commonwealth v. Workers' Compensation Appeal Board (Slessler)

Commonwealth Court of Pennsylvania

October 30, 2014

Commonwealth of Pennsylvania/DPW - Loysville Youth Center and Inservco Insurance Services, Inc., Petitioners
v.
Workers' Compensation Appeal Board (Slessler), Respondent

Submitted June 20, 2014

Page 398

Sheri B. Friedman, Scranton, for petitioners.

William A. Kovalcik, Frackville, for respondent.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. .

OPINION

Page 399

P. KEVIN BROBSON, Judge

Petitioners, Commonwealth of Pennsylvania, Department of Public Welfare, Loysville Youth Center and Inservco Insurance Services, Inc. (hereinafter referred to as Employer), petition for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed a Workers' Compensation Judge's (WCJ) decision denying Employer's modification petition, seeking to change the workers' compensation benefit status of Dallas Slessler (Claimant) from total to partial based upon the results of an impairment rating evaluation (IRE). The Board reversed the WCJ's determination that Claimant also suffers from major depression, panic disorder, and status post C5-6 fusion, arising from his work-related injuries. We vacate in part and remand the matter to the Board.

On September 14, 2003, Claimant sustained a work-related injury during the course of his employment. The WCJ described the injury as follows:

[T]he Claimant suffered a severe attack while in the course of his employment with the Employer, when a resident brought his legs down into the Claimant's side. He and four other individuals were trying to restrain the resident, when the Claimant fell and the resident and the other workers fell on the Claimant. The resident broke the Claimant's back and ribs, and he injured a disc in his neck for which he subsequently had a fusion.

( Finding of Fact (F.F.) no. 12.) On October 1, 2003, Employer issued a notice of compensation payable (NCP) that identified Claimant's work-related injuries as " neck and right Achilles tendon strain." (Reproduced Record (R.R.) at 340a.) In November 2006, the WCJ issued a decision, amending the NCP to include Post Traumatic Stress Disorder (PTSD) and chronic pain.

On July 6, 2009, Claimant filed a medical review petition and a penalty petition. Claimant based these petitions on his claim that Employer failed to pay for a medical expense (adjustable bed). On August 9, 2009, Employer filed its modification petition. Employer asserted that a November 18, 2008 IRE of Claimant by Michael Wolk, M.D., indicated an impairment rating of 8% and, thereby, supported a change in Claimant's benefits from total to partial. (R.R. at 22a.) On January 10, 2010, Claimant filed a utilization review (UR) petition. The UR petition sought to challenge a UR determination of Dennis W. Ivill, M.D., who determined that Claimant's treatment with Myra B. Tolan, M.D., a pain specialist, was unreasonable and unnecessary.

The WCJ held several hearings, during which Claimant testified before the WCJ for the purpose of his medical review petition. Claimant also submitted the deposition testimony of Dr. Tolan for the purpose of Claimant's challenge to the UR determination. Employer submitted the deposition testimony of Dr. Wolk in support of its modification petition.

Claimant testified that he sees Dr. Longo once a month. Dr. Longo provides counseling and therapy on how to deal with pain on a day-to-day basis. He sees Joyce Chivas, a medical social worker/licensed social worker, once a week. Claimant testified that he sees Dr. Tolan for his pain. Dr. Tolan gives Claimant Botox injections

Page 400

several times per year. Dr. Tolan prescribed a particular type of bed for the purpose of addressing Claimant's pain. Claimant testified generally regarding the nature of his pain and the medication he takes in response to his pain. He takes some pain medication for conditions other than his work injury. Claimant testified that, in addition to his pain medication, he attends physical therapy with John Foster two times per week. Mr. Foster provides " myofacial release" through deep massage and applies heat and sometimes electronic stimulus, which helps loosen the muscles.

With regard to his PTSD, Claimant testified that he has nightmares, anger outbursts, dryness of mouth, an " overwhelming" sense that triggers depression and anxiety, more frequent panic attacks than before he had PTSD, and pain triggered by PTSD. Claimant testified that Dr. Maue, a psychiatrist, prescribes Remerion for his PTSD. Claimant testified as follows:

I would not be able to sustain a job at a position in doing anything physical. With the P.T.S.D and the anger outburst that I get I'm not too sure a manager or somebody above me would have problems with that. Because of the other reactions I get with not being able to sleep, I wouldn't be able to stay awake. My anxiety I get panic attacks, serious panic attacks where I get overwhelmed and I freeze and I--there are times when I am just potentially frozen or frozen and I can't move. I have difficulty breathing and I have to do breathing exercises to come out of that. The--the effect that it has on me debilitates me to the point where I am frozen, I can't perform. I can't function. My mind doesn't work the way it is supposed to. It is hard to describe the effect . . . .

( R.R. at 304a-305a.)

Claimant offered, over Employer's objection, the deposition testimony of David J. Longo, Ph.D., a psychologist. For the purposes of expert qualification, Dr. Longo testified that he has a Bachelor's of Science degree in psychology, a Master's of Science degree in clinical psychology, and a Doctor of Philosophy degree in clinical psychology with a minor degree in behavioral medicine. Dr. Longo testified that he is a licensed psychologist and a certified neuropsychologist. Pertinently here, Dr. Longo testified that he is familiar with the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), which he uses in preparation for depositions. (R.R. at 90a.) On cross-examination relating to his qualifications, Dr. Longo testified that he is not licensed to practice medicine in the Commonwealth and is not certified by any American medical or osteopathic specialist board. Dr. Longo testified that he does not meet the certification and training requirements established by the Department of Labor and Industry (L& I) for performing IREs. Additionally, Dr. Longo testified that he was not trained or certified to use the Sixth Edition of the AMA Guides. Employer objected to Dr. Longo's testimony based upon its contention that he could not be qualified as an expert, because he did not satisfy L& I's qualification requirements for the performance of impairment rating evaluations.

Dr. Longo testified that he began treating Claimant in April 2005. He conducted a test known as a McGill Pain Inventory, which he described as the " gold standard to assess the patient['s] perception of pain." (R.R. at 95a.) Based upon his testing and examination of Claimant, Dr. Longo testified that he diagnosed Claimant with

Page 401

chronic pain associated with both psychological factors and general medical conditions, major depression, [PTSD], panic disorder, and then from the review of his records, medical records, he had been status post C5-C6 fusion. He was diagnosed with sympathetically-maintained pain, myofascial pain syndrome with numerous trigger points, mechanical low back syndrome, spinal stenosis, degenerative disc disease, degenerative joint disease.

( February 1, 2010 Deposition of Dr. Longo at p.17.)[1] Dr. Longo also testified that although Claimant had major depression and panic disorder before he sustained his work-related injury, the injury aggravated those conditions and made them more severe. (R.R. at 96a.) Dr. Longo testified that over the years that he has treated Claimant he conducted condition-specific tests aimed to assess, among other psychological conditions, anxiety, depression, and PTSD. Dr. Longo testified that Claimant's results were consistently above the clinically significant thresholds for those tests, meaning that Claimant had " severe disorder or dysfunction." (R.R. at 99a.) Claimant scored ten on the McGill Pain Inventory assessment. According to Dr. Longo, this result means that there is little likelihood that Claimant would recover from his pain condition. (R.R. at 102a.)

Dr. Longo also testified regarding his own IRE of Claimant and his review of the IRE performed by Dr. Wolk on behalf of Employer. Specifically, Dr. Longo testified as follows with regard to his methods for evaluating Claimant's impairment rating:

My impairment rating is based on chapter, I believe it's 14 of mental health and behavioral dysfunction and--mental and behavioral disordering in the impairment guide's sixth edition. And I used the measures, the GAF, the BPRS and the PIRS forms. And my impressions from those is from the long history of treatment and also the use of my normative-based questionnaires I've just reviewed. My normative-based questionnaires, the validity coefficients on those range from 8.8 to 9. The validity coefficients on the GAF is about ...

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