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Duffey v. Workers' Comp. Appeal Bd. (Trola-Dyne, Inc.)

Commonwealth Court of Pennsylvania

June 26, 2015

Michael C. Duffey, Petitioner
v.
Workers' Compensation Appeal Board (Trola-Dyne, Inc.), Respondent

Submitted March 27, 2015

Page 446

Appealed from No. A13-0229 and A13-1158. State Agency: Workers' Compensation Appeal Board.

Drew P. Gannon, York, for petitioner.

Thomas F. Miller, Mt. Laurel, NJ, for respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

OPINION

Page 447

RENÉE COHN JUBELIRER, JUDGE

Michael C. Duffey (Claimant) petitions for review of the Order of the Workers' Compensation Appeal Board (Board) reversing a Workers' Compensation Judge's (WCJ) Decision that the Impairment Rating Evaluation (IRE) submitted by Trola-Dyne, Inc. (Employer) was invalid because it did not address mental injuries which the WCJ newly added to Claimant's Notice of Compensation Payable (NCP). On appeal, Claimant argues that the Board erred in modifying his disability status from total to partial based on an IRE that did not consider all of Claimant's work-related injuries. We affirm.

I. Background

The facts in this matter are not in dispute. On March 6, 2009, Claimant sustained work-related injuries to both hands when " [h]e picked up hot wires that someone [had] reconnected by accident" while repairing a machine for Employer. (WCJ Decision, Findings of Fact (FOF) ¶ ¶ 1, 21.) Employer issued the NCP describing Claimant's injury as " bilateral hands, electrical burn, stripping some electric wire." (NCP, R.R. at 1a.)

On March 6, 2011, Claimant reached 104 weeks of receiving total disability compensation. Employer requested an IRE pursuant to Section 306(a.2)(1) of the Workers' Compensation Act[1] (Act) on March 17, 2011. (FOF ¶ 2; Request for Designation of a Physician to Perform an IRE (Request for Designation), R.R. at 2a-3a.) In its IRE request, Employer described Claimant's work injury as " bilateral hands-nerve and joint pain." (Request for Designation at 1, R.R. at 2a.) Claimant submitted to an IRE with Bruce E. Sicilia, M.D., on June 2, 2011. (FOF ¶ ¶ 3-4.) Dr. Sicilia issued an Impairment Rating Determination Face Sheet, with accompanying report, on June 25, 2011 indicating that Claimant had a six percent impairment rating. (FOF ¶ 4.) Based on Dr. Sicilia's rating, Employer issued a Notice of Change of Workers' Compensation Disability Status Form on June 28, 2011, informing Claimant of his impairment rating and changing Claimant's disability status from total to partial. (FOF ¶ 5.) This change in disability status from total to partial does not reduce Claimant's benefit amount, but limits the receipt of benefits to five hundred weeks. Diehl v. Workers' Compensation Appeal Board (IA Construction), 972 A.2d 100, 104-05 (Pa.

Page 448

Cmwlth. 2009), aff'd, 607 Pa. 254, 5 A.3d 230 (Pa. 2010).

Claimant filed a Petition to Review Compensation Benefit Offset (Review Petition) on or about July 14, 2011 asserting that the IRE was invalid, but the Review Petition did not describe how the IRE was invalid. (FOF ¶ 6; Review Petition, R.R. at 15a-16a.) Claimant later asserted that the IRE was invalid because the description of the injury was incomplete. (FOF ¶ 7.) The Review Petition was assigned to the WCJ on July 19, 2011. (FOF ¶ 6.) Claimant testified on December 16, 2011, and the parties submitted their respective physician depositions to the WCJ at various hearings throughout 2012. (FOF ¶ ¶ 7-18.)

Claimant presented the deposition testimony of his family physician, Debra A. Bell, M.D., who indicated that she " diagnosed the Claimant as suffering from adjustment disorder with depressed mood" on August 18, 2010, and Dr. Bell and Scott M. Cherry, M.D., who is board-certified in neurology and internal medicine, stated that Claimant had Post-Traumatic Stress Disorder (PTSD). (FOF ¶ ¶ 22-23.) Employer presented the deposition testimony of Dr. Sicilia and Timothy J. Michals, M.D. Dr. Sicilia testified regarding his findings from the IRE and his imposition of a six percent whole body impairment rating for Claimant, which addressed only those injuries described as work-related in the IRE designation sheet and did not review Claimant's mental conditions. (FOF ¶ 24; Request for Designation at 1, R.R. at 2a.) Dr. Michals, a board-certified psychiatrist, forensic psychiatrist, and ...


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