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Beasley v. Workers' Compensation Appeal Board (Peco Energy Company)

Commonwealth Court of Pennsylvania

December 22, 2016

Vincent Beasley, Petitioner
v.
Workers' Compensation Appeal Board (Peco Energy Company), Respondent

          Submitted: November 10, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE DAN PELLEGRINI, Senior Judge

          OPINION

          DAN PELLEGRINI, Senior Judge

         Vincent Beasley (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) reversing the Workers' Compensation Judge's (WCJ) denial of Peco Energy Company's (Employer) petition to change Claimant's disability status from total to partial pursuant to Section 306(a.2)(1) of the Pennsylvania Workers' Compensation Act (Act).[1]

         I.

         A.

         On April 3, 2009, Claimant sustained an injury while working for Employer as an energy technician. On April 23, 2009, Employer issued a Notice of Compensation Payable (NCP) accepting as compensable an injury described as a cervical "strain/sprain"[2] later amended to also include chronic neck pain syndrome due to aggravation of multi-level injuries at C5, C6 and C7 and radiculopathy at C5-6 and C6-7. The NCP states that Claimant began receiving total disability benefits on April 15, 2009, but that the first benefits check was not mailed until April 23, 2009, the notice date of the NCP.

         On April 15, 2011, Employer filed a Request for Designation of a Physician to Perform an Impairment Rating Evaluation (IRE Request) with the Bureau of Workers' Compensation's (Bureau) Department of Labor and Industry (Department). Claimant objected to this designation contending that under Section 306(a.2) of the Act, 77 P.S. § 511.2, the parties must try to reach an agreement on the IRE physician before an employer may file an IRE request with the Department. Claimant did not, however, make any objection that the IRE Request was untimely. The WCJ ordered Claimant to submit to a physical examination finding that Employer "met its burden of proving that it properly requested an [IRE] pursuant to Section 306(a.2)(1) by requesting the Bureau to designate an IRE physician." (R.R. at 14a.)

         Claimant then underwent an IRE by the designated physician who determined that Claimant had reached maximum medical improvement (MMI)[3]with an impairment rating of two percent under the Sixth Edition of the American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment (Guides). However, because the designated physician passed away before a hearing could be held, the parties were informed that they needed to contact the Department for "redesignation." They then entered into a Stipulation of Facts providing, in pertinent part:

[1.] In order to preserve the "status quo" of the claim, counsel for claimant agreed that employer could request a new Impairment Rating Evaluation.
[2.] Both claimant and employer reserve all rights, duties, remedies and arguments available, as they may have pertained to the original IRE performed by [the original IRE physician.]

(R.R. at 35a, 36a.)

         Employer then filed for the redesignation of an IRE physician (Redesignation Request) and Claimant reasserted his previous objections to the Department's designation of the original physician. Again, Claimant did not challenge the timeliness of the underlying IRE Request.

         The Department then designated Dr. Daisy Rodriguez (Dr. Rodriguez) who performed Claimant's IRE on October 23, 2012, and concluded that Claimant had reached MMI with an impairment rating of 28 percent under the AMA Guides. On December 3, 2012, Employer filed a Notice of Change of Workers' Compensation Disability Status (Notice of Change), informing Claimant of his impairment rating and his change of disability status from total to partial in accordance with Section 306(a.2)(1) of the Act, 77 P.S. § 511.2(1). Claimant then filed a Petition to Review Compensation Benefits (review petition) with the WCJ claiming that the IRE and Notice of Change was defective. Claimant's review petition again did not challenge the timeliness of the underlying IRE Request.

         On Claimant's challenge to the IRE, Dr. Rodriguez testified that she is licensed to practice medicine in the Commonwealth of Pennsylvania, Board Certified in Internal Medicine and maintains at least 20 hours per week in clinical practice. Dr. Rodriguez testified that she attended a training course given by the American Board of Independent Medical Examiners, an approved agency for certification, on February 3, 2008, and January 13, 2013. The February 3, 2008 training course was in Tampa, Florida, and took place before the AMA Guides was revised in August 2008. Despite the training course's location and timing, Dr. Rodriguez believes the training course satisfied the Department requirements because they were included on her CV and provided to the Department when it designated her as Claimant's IRE physician. Dr. Rodriguez explained that she used the most recent AMA Guides to evaluate Claimant, which she was trained to use at the February 2008 course.

The course in February of 2008, [was] given by . . . the [AMA Guides'] editors, as well as . . . another editor, [and] they brought to our attention the errors in the original division during that course. I was trained in the corrections and clarifications, not trained in the errors.

(R.R. at 132a.)

         Dr. Rodriguez testified that Claimant had reached MMI with an impairment rating of 28 percent. She understood that Claimant's applicable diagnoses were expanded by a subsequent decision by the WCJ, describing the work-related injuries as chronic neck pain syndrome due to aggravation of multilevel disc injuries at C5, C6 and C7 and radiculopathy at C5-6 and C6-7, as well as sprain and strain of the cervical spine. She used the Sixth Edition of the AMA Guides when conducting the IRE and explained both the definition of MMI and "reasonably presumed permanent" injuries. She stated that to reach MMI, an individual must not have experienced any improvement or deterioration in the 12 months preceding the examination and/or be expected to do the same in the 12 months following it.

         Regarding Claimant reaching MMI, Dr. Rodriguez explained that she arrived at her determination by comparing Claimant's medical records with her clinical findings during a personal examination and history of Claimant and Claimant's responses on two different in-take evaluation forms that she administered, and that her most recent medical records for Claimant dated back 12 months prior to her examination of Claimant. She explained that she relied on Claimant's answers and explanations at the examination and in the two evaluation forms to determine whether Claimant's condition improved or deteriorated over the previous 12 months and whether Claimant underwent or scheduled any procedures for his injuries.

         No other testimony was provided by either party in this matter and Claimant did not present any expert testimony of his own. Claimant also did not present any evidence or testimony indicating further deterioration or improvement of his injury. Claimant has not indicated that he underwent any medical procedures in the year leading up to the IRE or in the year after it was performed.

         B.

         On August 25, 2014, the WCJ denied Employer's Petition for Modification of Benefits because she found that Employer's IRE Request was premature because "Employer has presented neither evidence[] nor any agreement to establish the date [C]laimant received 104 weeks of total temporary disability benefits. It is therefore impossible to ...


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