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IA Constr. Corp. v. Workers' Comp. Appeal Bd. (Rhodes)

Commonwealth Court of Pennsylvania

February 19, 2015

IA Construction Corporation and Liberty Mutual Insurance Co., Petitioners
v.
Workers' Compensation Appeal Board (Rhodes), Respondent

Argued November 10, 2014

Appealed from No. A11-1631. State Agency: Workers' Compensation Appeal Board.

Terry Lee M. Bashline, Pittsburgh, for petitioners.

Thomas C. Baumann, Pittsburgh, for respondent.

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

OPINION

Page 1097

 BROBSON, JUDGE

Petitioners IA Construction Corporation and Liberty Mutual Insurance Co. (collectively, Employer) petition for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed the decision of a Workers' Compensation Judge (WCJ), which denied Employer's modification petition pursuant to the Workers' Compensation Act (Act).[1] For the reasons set forth below, we reverse the Board's order.

On January 9, 2007, WCJ David Torrey (WCJ Torrey) issued a decision granting Jeffrey Rhodes' (Claimant) claim petition, finding that Claimant sustained the following injuries during his employment with Employer: a traumatic brain injury with organic affective changes and persistent cognitive problems, particularly memory impairment, posttraumatic headaches, posttraumatic vertigo or impaired balance, and musculoskeletal or myofascial neck and back injuries. On July 29, 2010, Employer filed a modification petition, alleging that as of June 24, 2010, it was seeking modification of Claimant's benefits based on an impairment rating evaluation (IRE) performed by M. Bud Lateef, M.D.,[2] which resulted in a 34% impairment rating of Claimant. Claimant filed an answer denying the allegations of the modification petition, and the matter was assigned to WCJ Cheryl A. Ignasiak (WCJ Ignasiak), who held hearings on the matter.

Page 1098

Following the hearings, WCJ Ignasiak issued a decision denying Employer's modification petition. In so doing, WCJ Ignasiak made the following relevant findings with regard to Dr. Lateef's medical report and deposition testimony, which Employer submitted in support of its modification petition. Based on his review of Claimant's medical records and his physical examination of Claimant, Dr. Lateef diagnosed Claimant with traumatic brain injury, " cervical HNP status post surgery," [3] and gait dysfunction. (Reproduced Record (R.R.) at 50a.) Dr. Lateef assigned Claimant a 34% whole person impairment rating, which Dr. Lateef based on the individual impairment ratings he assigned to Claimant for each of Claimant's three diagnoses.[4] ( Id.) Dr. Lateef further opined that Claimant had reached maximum medical improvement. ( Id.)

Dr. Lateef explained that Claimant's three diagnoses were the conditions that were permanently limiting Claimant's ability to function at that point in time and noted that the impairment ratings were not based on Claimant's initial injuries, but rather on what was currently causing his disability. ( Id.) With regard to any other problems or injuries, such as persistent cognitive problems, memory impairment, posttraumatic headaches, posttraumatic vertigo, and impaired balance, Dr. Lateef indicated that these injuries were lumped into Claimant's traumatic brain injury diagnosis. ( Id. at 51a.) Dr. Lateef also indicated that any musculoskeletal or myofascial neck and back injuries were included in the same category with the cervical HNP diagnosis. ( Id.)

In conducting her analysis, WCJ Ignasiak rejected Dr. Lateef's opinion that Claimant had a 34% impairment rating. ( Id.) First, WCJ Ignasiak noted that Dr. Lateef only rated three of Claimant's recognized injuries and lumped several of Claimant's other injuries into the three categories Dr. Lateef rated. ( Id.) WCJ Ignasiak explained that she did not find Dr. Lateef's testimony persuasive that all of Claimant's accepted injuries as identified by WCJ Torrey should be placed in the categories chosen by Dr. Lateef. ( Id.) As a consequence, WCJ Ignasiak concluded that Dr. Lateef did not address all of the diagnoses that should have been considered part of the work injury when calculating Claimant's impairment rating. ( Id. at 52a.)

Second, WCJ Ignasiak noted that a significant portion of Claimant's impairment rating was due to the cognitive impairments that Claimant exhibited due to his traumatic brain injury. ( Id. at 51a.) WCJ Ignasiak reasoned that based on Dr. Lateef's report and testimony, it appeared that his impairment rating of Claimant's traumatic brain injury was primarily based on records he had reviewed, rather than on any examination that he performed. ( Id.) WCJ Ignasiak observed that Dr. Lateef had reviewed numerous records regarding Claimant's treatment, but that there was only one ...


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