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Neff v. Workers' Compensation Appeal Board (Pennsylvania Game Comm'n)

Commonwealth Court of Pennsylvania

January 8, 2015

Nicole Neff, Petitioner
v.
Workers' Compensation Appeal Board (Pennsylvania Game Commission), Respondent

Argued: December 10, 2014.

Page 292

Appealed from No. A12-0838. State Agency Workers' Compensation Appeal Board.

Darryl R. Slimak, State College, for petitioner.

James A. Mazzotta, Pittsburgh, for respondent.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONOROABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION BY JUDGE BROBSON.

OPINION

Page 293

P. KEVIN BROBSON, Judge

Nicole Neff (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board), dated January 9, 2014. The Board affirmed the decision of a Workers' Compensation Judge (WCJ), which granted the modification petition filed by the Pennsylvania Game Commission (Employer) pursuant to the Workers' Compensation Act (Act).[1] For the reasons set forth below, we now affirm.

Claimant suffered an injury while in the course and scope of her employment with Employer on February 20, 2004. On April 30, 2004, Employer issued a Notice of Temporary Compensation Payable, which described the injury as " right wrist--carpal tunnel syndrome--screwing bluebird boxes together." On July 13, 2004, the Bureau of Workers' Compensation circulated a Notice of Conversion of Temporary Compensation Payable to Compensation Payable. Subsequently, Employer filed a termination petition and suspension petition on April 24, 2006, and June 21, 2006, respectively. Thereafter, Claimant filed a petition to review compensation and a petition to review medical treatment on July 30, 2006. By decision circulated on February 21, 2008, a WCJ (1) determined that Claimant had not fully recovered from the carpal tunnel injury, (2) expanded the description of the work injury to include chronic lateral epicondylitis of the right elbow, and (3) denied the termination and suspension petitions. On February 13, 2009, the parties entered into a compromise and release agreement, which settled all benefits payable to Claimant for the right carpal tunnel injury, but continued Employer's liability for the chronic lateral epicondylitis of the right elbow.

On January 7, 2011, Employer filed a modification petition against Claimant, maintaining the position that Claimant's temporary total disability status due to the right lateral epicondylitis injury had resolved into a permanent impairment of less than 50%, allowing for a modification of wage loss benefits from temporary total disability to partial disability. Employer based its modification petition on an impairment rating evaluation (IRE) performed by William R. Prebola, Jr., M.D.,[2] on December 15, 2010, which resulted in a determination that Claimant had reached maximum medical improvement (MMI) and had suffered a whole person impairment rating of 1%. Claimant filed an answer to the modification petition, denying that the IRE established partial disability, and a WCJ held hearings on the matter. Following the hearings, the WCJ issued a decision granting Employer's modification petition based on the results of the IRE and modified Claimant's benefits accordingly. Claimant then appealed to the Board, which affirmed. Claimant now petitions this Court for review.

On appeal,[3] Claimant essentially argues that the Board and WCJ erred in

Page 294

granting Employer's modification petition because the modification petition was based upon an invalid IRE. Claimant argues that an IRE is premature and invalid as a matter of law when there is a reasonable potential for the claimant to undergo future surgery that could cause a change in her condition, as a claimant cannot be at MMI[4] in such a circumstance. Claimant argues that such is the case here, as it is undisputed that Claimant could undergo additional surgery in an attempt to improve her elbow condition, and, therefore, Claimant has not yet reached MMI. In support of her position, Claimant largely relies upon our decision in Combine v. Workers' Compensation Appeal Board (National Fuel Gas Distribution Corp.), 954 A.2d 776 (Pa. Cmwlth. 2008), appeal denied, 600 Pa. 765, 967 A.2d 961 (Pa. 2009), and further argues that Combine is ...


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