J.T. Tedesco v. Kane Freight Lines, Inc. (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jay T. Tedesco, :
Petitioner :
:
v. :
:
Kane Freight Lines, Inc. (Workers’ :
Compensation Appeal Board), : No. 1270 C.D. 2021
Respondent : Submitted: January 27, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: May 19, 2023
Jay T. Tedesco (Claimant) petitions for review of the October 21, 2021,
decision and order of the Workers’ Compensation Appeal Board (Board), which
affirmed with modification a November 4, 2020, decision and order of the Workers’
Compensation Judge (WCJ). The WCJ granted a modification petition filed by Kane
Freight Lines, Inc. (Employer), based on a July 11, 2019, Impairment Rating
Evaluation (IRE). Upon review, we affirm.
I. Factual & Procedural Background
On March 31, 2015, Claimant sustained a disabling work-related injury
while operating a broken pallet jack. Reproduced Record (R.R.) at 40a & 52a.
Employer accepted the injury as a “lower back strain” and began paying temporary
total disability (TTD) benefits of $951.00 per week. Id. The parties later stipulated
to expand the description of injury to “bilateral pulmonary embolism and bilateral
[deep venous thrombosis] as a result of the immobility of the work injury.” Id. After
litigation of a review petition, the WCJ issued a January 4, 2018, decision further
adding “L4-5 disc herniation, resolved to a disc disruption with chronic right L4
radiculopathy” to the description of injury. Id. at 46a.
On September 27, 2019, Employer filed a modification petition seeking
to modify Claimant’s benefits to temporary partial disability (TPD) status based on
a July 11, 2019, IRE based on the 6th edition of the American Medical Association
Guides to the Evaluation of Permanent Impairment (AMA Guides); the IRE returned
a 32% impairment rating. R.R. at 8a. This was below the 35% threshold for
retention of TTD status as dictated in Section 306(a.3)(2) of the Workers’
Compensation Act (Act),1 which became effective roughly 10 months before the July
2019 IRE. Id.
Employer presented the deposition of Dr. Kenneth Gentilezza, M.D.,
who conducted the July 2019 IRE. R.R. at 47a. At the IRE, Claimant reported 8/10
pain in his lumbar area radiating with radicular symptoms down his right leg and
more recently in his left leg. Id. at 53a. Claimant reported ongoing difficulty with
all activities of daily living and completed a pain disability questionnaire (PDQ).2
Id. A January 2017 electromyography (EMG) test showed right-side radiculopathy
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. Section
306(a.3)(2) was added to the Act by the Act of October 24, 2018, P.L. 714, No. 111 (Act 111), 77
P.S. § 511.3(2).
2
The PDQ was described by Claimant’s medical witness, Dr. Jacob, as a paper evaluation
where the patient fills out 15 questions concerning their condition on a 1/10 scale; the doctor then
adds up the total and includes it in the impairment rating pursuant to the Guides’ formula.
Reproduced Record (R.R.) at 110a.
2
at L4 and magnetic resonance imaging (MRI) studies showed abnormalities with
stenosis at L3-4 and L4-5. Id. at 54a.
Dr. Gentilezza noted that according to records, Claimant reported left
leg issues in April 2017, but these were not diagnostically documented and were not
included in the WCJ’s description of injury. R.R. at 55a-56a. Dr. Gentilezza omitted
left leg symptoms in his IRE calculations because he did not find them to be
consistent with or causally related to Claimant’s 2015 injury. Id. at 57a. He
explained that in the IRE context, symptoms in another body part can be valid but
not necessarily contribute to or enhance impairment. Id. at 61a. Using a combined
values chart to determine a final figure based on his raw evaluation scores, Dr.
Gentilezza arrived at an overall impairment rating of 32%, which he believed was
accurate. Id. at 60a.
Dr. Gentilezza explained his methodology for Claimant’s lumbar
conditions. R.R. at 58a-59a. Pursuant to the AMA Guides and based on Claimant’s
diagnosis, his lumbar issues were within the “Class 3” range of 15-23% impairment;
the evaluation begins in the middle at a default of 19% and then is adjusted using
modifying factors based on the PDQ, the clinical exam, and medical records
including available clinical studies. Id. at 58a. Claimant’s PDQ score was 119,
which Dr. Gentilezza described as a Grade 3 modifier indicating pain and symptoms
with less than normal activity. Id. His clinical examination, which resulted in
findings of diminished light touch sensation and 3/5 strength, resulted in a Grade 2
modifier. Id. Evaluation of Claimant’s medical records, including his diagnostic
tests, led to a Grade 3 modifier. Id. Using these results, Dr. Gentilezza calculated
that Claimant’s lumbar impairment rating was two negative units off of the 19%
default, resulting in a 15% rating (the numbers are “odd,” meaning that his
3
calculations took the rating from 19% to 17% to 15%). Id. at 58a-59a. Relevant to
this appeal, Dr. Gentilezza stated that he did not use Table 17-5 from the AMA
Guides in Claimant’s IRE; he described it as an “overview” and an “overall guide”
to IREs that is part of the AMA Guides, but is “not part of the formula” used to
actually calculate ratings. Id. at 63a.
Dr. Gentilezza acknowledged the differences between his lumbar
calculations and those of Dr. Jacob, who conducted a rebuttal IRE at Claimant’s
request and in which Dr. Jacob calculated 21% lumbar impairment based on one
positive unit that raised his default from 19% to 21%. R.R. at 59a-60a & 64a. Dr.
Gentilezza noted that Dr. Jacob’s figures were generally higher and that he did not
see objective evidence in Dr. Jacob’s notes to support some of his results. Id. at 64a.
Dr. Gentilezza’s physical examination resulted in a Grade 2 modifier, less severe
than Dr. Jacob’s Grade 3 modifier, because he detected less decreased sensation than
Dr. Jacob. Id. at 59a. Dr. Gentilezza explained that in terms of evaluating medical
records for the third modifier category, he had not used Claimant’s EMG because it
had already been used in confirming Claimant’s diagnosis, but he used Claimant’s
MRI because he felt it was relevant. Id. Dr. Gentilezza noted that if he had used the
PDQ Claimant completed for Dr. Jacobs, which resulted in a score of 132
(Claimant’s PDQ for Dr. Gentilezza was 119), it would only have increased his
overall result from 32% to 33%, still under the 35% threshold for retention of TTD
status. R.R. at 59a-60a.
Claimant presented the deposition of Dr. Emmanuel E. Jacob, M.D.
R.R. at 100a. At Claimant’s request, Dr. Jacob conducted an IRE of Claimant on
November 19, 2019, about four months after Employer’s IRE. Id. Like Dr.
Gentilezza, Dr. Jacob placed Claimant in Class 3 with a range of 15% to 23%
4
impairment. Id. at 112a & 115a-17a. Claimant presented with 8/10 pain levels and
his PDQ resulted in a score of 132, which is within the Grade 4 modifier, more severe
than Dr. Gentilezza’s Grade 3 modifier based on Claimant’s PDQ score of 119 at
the previous IRE. R.R. at 107a & 138a. Dr. Jacob’s lumbar exam resulted in a
Grade 3 modifier compared with Dr. Gentilezza’s Grade 2 modifier. Id. at 107a-08a
& 179a.
Dr. Jacob also reviewed Claimant’s medical records, including a
September 2015 MRI and EMGs from October 2015 and July 2017, both of which
indicated right L4 lumbar radiculopathy. Id. at 111a. However, Dr. Jacob believed
the Grade 2 modifier Dr. Gentilezza used for this category, which reduced
Claimant’s impairment rating from the default of 19% to 15%, was incorrect because
it utilized studies that had already been used in determining Claimant’s diagnosis.
Id. at 121a-22a. Dr. Jacob stated that evaluators are not supposed to “double-dip”
and count contributory factors twice in an evaluation. Id. at 149a-56a. Dr. Jacob
therefore used no modifier at all for the records category. Id. at 179a. At his
deposition, however, Dr. Jacob was unable to pinpoint that directive in the AMA
Guides. Id. at 156a-57a. He acknowledged he had not seen a pre-injury MRI from
2006 showing findings at both L3-4 and L4-5. R.R. at 129a-30a.3
Dr. Jacob noted that, in contrast to Dr. Gentilezza’s use of a “negative”
Grade 2 modifier for the exam category, he used a Grade 3 modifier, which indicated
more severe impairment and resulted in a “plus 1 adjustment” that raised the default
19% lumbar impairment rating to 21%. Id. at 123a & 144a-45a. Dr. Jacob opined,
however, that the AMA Guides are not “perfect science” and that some interpretation
3
The 2006 MRI is discussed in the previous WCJ decision from 2018 that adjudicated
Claimant’s description of injury and, as will be discussed, arose in the WCJ’s credibility
determination of Dr. Jacob. See R.R. at 43a.
5
by the IRE doctor is needed. Id. at 145a & 157a. Relevant to this appeal, Dr. Jacob
explained that Table 17-5 is just a summary and is not used in calculations, which
measure the results of the doctor’s functional history evaluation, physical exam, and
clinical exam. R.R. at 140a.
Dr. Jacob included Claimant’s left leg issues in his exam category
calculations even though the formal description of injury does not include any left
leg conditions and they were not detected in Claimant’s EMG. Id. at 132a-35a. Dr.
Jacob explained that Claimant reported left leg issues in 2017 and at the IRE, that he
detected them on exam, and that he attributed them to the work injury, unlike Dr.
Gentilezza. Id. at 132a-35a. Using the combined value charts, Dr. Jacob’s IRE
would return an overall rating of 36%, just above the threshold to avoid modification
to TPD status, whereas Dr. Gentilezza’s rating of 32% would result in modification.
R.R. at 124a.
Claimant testified at a March 10, 2020, hearing. R.R. at 194a. He has
not been able to return to any kind of work since the injury, he uses a cane, and his
condition has worsened. Id. at 202a. It interferes with his ability to walk, sleep, and
think, and his sex life, and he has been suffering depression. Id. at 203a. He
reviewed the PDQ he completed when he saw Dr. Jacob, on which he indicated that
on a 1/10 scale, his pain interferes with his work on a 10/10 basis; interferes with his
personal care ability on an 8-9/10 basis; interferes with his ability to travel on a 9-
10/10 basis; interferes with his ability to sit and stand on a 9/10 basis; interferes with
his ability to reach and grasp overhead on a 9-10/10 basis; interferes with his ability
to bend, stoop, and squat on a 9-10/10 basis; requires daily pain medication
(OxyContin) on a 10/10 basis; and requires him to see a doctor more than before his
injury on a 10/10 basis. Id. at 204a-06a & 209a.
6
On November 4, 2020, the WCJ issued a decision and order granting
Employer’s modification petition and changing Claimant’s benefit status from TTD
to TPD. R.R. at 225a-31a. The WCJ credited Dr. Gentilezza’s testimony over that
of Dr. Jacob; the WCJ found Dr. Gentilezza’s explanation of his methodology clear
and well-reasoned, whereas Dr. Jacob’s evaluation was hindered by his failure or
inability to consider the 2006 MRI, which comparatively lessened the severity of
Claimant’s impairment due solely to his work-related injury. Id. at 229a. The WCJ
also noted Dr. Jacob’s inclusion of left leg conditions although these had not been
accepted as compensable. Id. The WCJ therefore accepted as fact Dr. Gentilezza’s
impairment rating of 32%, which warranted modification to TPD. Id. The WCJ
credited Claimant’s testimony as to his condition, but noted that it did not address
application of the AMA Guides through the IREs and did not impact the testimony
of the expert doctors. Id.
Relevant to this appeal, when the WCJ set out the case background in
the November 2020 decision, he made an apparent clerical error. It is undisputed
that Claimant was injured on March 31, 2015, and began receiving weekly benefits
of $951.00 on an uninterrupted basis. R.R. at 227a. Also, in the prior January 2018
decision, the WCJ described Claimant’s injury as “L4-5 disc herniation, resolved to
a disc disruption with chronic right L4 radiculopathy.” Id. at 46a. However, in the
November 2020 decision at Finding of Fact #6, the WCJ wrote the following
sentence:
Thereafter, on July 7, 2016, the parties agreed to a
reinstatement of Claimant’s indemnity benefits at the rate
of $932.00 per week from January 29, 2015 and ongoing.
The parties further agreed to expand the description of
injury to include aggravation of pre-existing cervical disc
pathology at C3-4 and status post cervical discectomy and
fusion at C3-4.
7
Id. at 228a. This included an incorrect reference to reinstatement, an incorrect
benefits rate, a date prior to Claimant’s actual date of injury, and attribution of
cervical issues, which are not part of Claimant’s condition.
The Board affirmed, concluding that Claimant’s July 2019 IRE was
constitutionally legitimate and that the WCJ did not err in modifying Claimant’s
benefit status to TPD based on Dr. Gentilezza’s IRE. R.R. at 250a-67a. The Board
also modified the WCJ’s decision to correct the clerical error by striking the above-
quoted sentence and replacing it with the following sentence: “Claimant’s work
injury was expanded in a January 4, 2018, Decision and Order to include ‘an L4-5
disc herniation, resolved to a disc disruption with chronic right L4 radiculopathy.’”
Id. at 256a-58a & 267a. Claimant appealed to this Court.
II. Discussion
Claimant raises three issues on appeal. He challenges Act 111, which
governed his July 2019 IRE, as constitutionally infirm. He argues that the Board
should have remanded the case to the WCJ to correct the apparent clerical error
rather than doing so itself. Finally, he argues that the WCJ erred in accepting Dr.
Gentilezza’s 32% impairment rating, asserting that determination was not supported
by substantial evidence.
A. Constitutionality of Act 111
Beginning in 1996, former Section 306(a.2) of the Act4 provided for
impairment ratings based on the “most recent edition” of the AMA Guides.
Formerly 77 P.S. § 511.2. Subsequently, in Protz v. Workers’ Compensation Appeal
4
Added by the Act of June 24, 1996, P.L. 350, formerly 77 P.S. § 511.2, repealed by the
Act of October 24, 2018, P.L. 714.
8
Board (Derry Area School District), 124 A.3d 406, 416-17 (Pa. Cmwlth. 2015)
(Protz I), this Court concluded that former Section 306(a.2) constituted an
unconstitutional delegation of legislative authority to a private entity (the AMA).
On further appeal, our Supreme Court struck former Section 306(a.2) in its entirety
in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 161
A.3d 827, 835-36 (Pa. 2017) (Protz II).
Thereafter, the General Assembly enacted Act 111, which replaced
former Section 306(a.2) with Section 306(a.3), 77 P.S. § 511.3. Section 306(a.3)
retains uncontroverted aspects of former Section 306(a.2) but has several key
differences. Unlike the previous provision’s reference to the “most recent edition”
of the AMA Guides, Section 306(a.3) limits its application to the 6th edition of the
AMA Guides. 77 P.S. § 511.3(1). Act 111 also reduces the threshold impairment
rating for modification from 50% in former Section 306(a.2) to 35%, making it more
difficult for employers to modify a claimant’s benefit status from TTD to TPD. 77
P.S. § 511.3(2); Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada), 238 A.3d 551,
562 (Pa. Cmwlth. 2020). Finally, Act 111 specifically grants employers credit for
weeks of TTD or TPD benefits paid to a claimant prior to its effective date of
October 24, 2018:
(1) For the purposes of determining whether an employee
shall submit to a medical examination to determine the
degree of impairment and whether an employee has
received total disability compensation for the period of
104 weeks under section 306(a.3)(1) of the act, an insurer
shall be given credit for weeks of total disability
compensation paid prior to the effective date of this
paragraph. This section shall not be construed to alter the
requirements of section 306(a.3) of the act.
(2) For the purposes of determining the total number of
weeks of partial disability compensation payable under
9
section 306(a.3)(7) of the act, an insurer shall be given
credit for weeks of partial disability compensation paid
prior to the effective date of this paragraph.
Act 111, § 3(1), (2) (emphasis added).
i. Delegation of Legislative Authority in Act 111
Claimant first argues that Section 306(a.3) of Act 111 failed to cure the
delegation defect of former Section 306(a.2) because IREs are still conducted
pursuant to the AMA Guides, which are the product of the AMA, a private entity.
Claimant’s Br. at 13-17. Employer responds that Act 111 cured the defect due to its
requirement that IREs must be conducted under the 6 th edition of the AMA Guides
as a stand-alone standard. Employer’s Br. at 26-27. The WCJ did not address this
issue and the Board noted that it lacks jurisdiction to rule on the constitutionality of
the Act, which is its enabling legislation. R.R. at 254a-55a. However, Employer is
correct as a matter of law.
In Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306 (Pa.
Cmwlth. 2019) (AFL-CIO), we determined that Section 306(a.3) was not an
unconstitutional delegation of legislative authority because its limitation to the 6th
edition of the AMA Guides constituted adoption by the General Assembly of a
particular set of standards already in existence at the time of adoption, compared
with the delegation in former Section 306(a.2) to the “most recent edition” of the
AMA Guides. Id. at 315-17. We concluded that the General Assembly properly
exercised its legislative and policymaking authority in so doing and did not
improperly delegate that authority on an unfettered, sight-unseen, or open-ended
basis. Id. Since its issuance, AFL-CIO has been cited consistently for this holding.
See, e.g., Hutchinson v. Annville Twp. (Workers’ Comp. Appeal Bd.), 260 A.3d 360,
10
366 (Pa. Cmwlth. 2021); Pierson v. Workers’ Comp. Appeal Bd. (Consol Pa. Coal
Co. LLC), 252 A.3d 1169, 1179 (Pa. Cmwlth. 2021).
Claimant’s brief develops an argument based on the reasons our
Supreme Court found former Section 306(a.2) to be an unconstitutional delegation
of legislative authority in Protz II. However, Claimant fails to address the key
difference between that provision and Section 306(a.3), specifically the limitation in
the current provision to the 6th edition of the AMA Guides. Claimant also fails to
address AFL-CIO and its progeny at all, much less present any legal argument or
other basis why these cases were incorrectly decided or should not apply here.
Because these cases are dispositive on this issue, Claimant’s argument is meritless.
ii. Act 111’s Credit Provisions
Claimant next argues that Act 111’s provisions granting credit to
employers for benefits paid to claimants prior to Act 111’s effective date violate
claimants’ constitutionally protected vested rights in the continuation of their
benefits. Id. at 17-20. Employer responds that successful claimants gain a vested
right to receive benefits, but that does not ensure a claimant’s TTD status in
perpetuity; therefore, Act 111’s credit provisions are constitutionally sound.
Employer’s Br. at 28-32. The WCJ did not address this issue and the Board noted
that it lacks jurisdiction to rule on the constitutionality of the Act, which is its
enabling legislation. R.R. at 254a-55a. However, Employer is correct as a matter
of law.
We have consistently held that applying Act 111’s credit provisions to
claimants whose injuries occurred prior to its effective date in October 2018 does
not abrogate or substantially impair a claimant’s vested rights in workers’
compensation benefits because there is no vested right to ongoing TTD status. See,
11
e.g., Hutchinson, 260 A.3d at 367; Pierson, 252 A.3d at 1179-80. In the recent case
of DiPaolo v. UPMC Magee Women’s Hospital (Workers’ Compensation Appeal
Board), 278 A.3d 430 (Pa. Cmwlth. 2022), we explained the basis for this
conclusion:
[E]ven during the time when the previous IRE provisions
had been invalidated by the Protz cases but before Act 111
became effective, employers were not devoid of a means
to modify a claimant’s benefit status. Section 413(a) of
the Act, which has been part of our workers’ compensation
legislation since its beginning over 100 years ago, has
always provided employers (as well as claimants) with the
general ability to seek a change in benefits at any time
based on “proof that the disability of an injured employe
has increased, decreased, recurred, or has temporarily or
finally ceased.” 77 P.S. § 772. Section 306(b) of the Act,
which also has roots in the early decades of workers’
compensation law, specifically enables employers to
modify a claimant’s disability status from total to partial
by showing that the claimant has regained some earning
power. 77 P.S. § 512(2). Since the 1996 onset of more
cost-efficient IREs, employers were less likely to
challenge a claimant’s status via litigation, but the option
was always available. Thus, while it is true that “a
claimant retains a certain right to benefits until such time
as he is found to be ineligible for them,” claimants do not
acquire a vested right in total disability status at any given
time because that status has always been subject to
potential litigation by employers.
Id. at 435-36.
Claimant relies on cases pertaining to vested rights that have been
presented to this Court in multiple challenges to our post-Protz II and Act 111
decisions. See, e.g., Konidaris v. Portnoff Law Assocs., Ltd., 953 A.2d 1231 (Pa.
2008) (change in statutory law cannot retroactively extinguish a plaintiff’s vested
right in their cause of action); Giant Eagle, Inc./OK Grocery Co. v. Workers’ Comp.
12
Appeal Bd. (Weigand), 764 A.2d 663 (Pa. Cmwlth. 2000) (change in calculation of
rate of compensation impacts a vested right and cannot be applied retroactively).
However, Claimant fails to acknowledge the distinction between clearly protected
rights in a cause of action or the rate of benefits and the mutability of benefit status.
Claimant also fails to address Hutchinson, Pierson, and DiPaolo at all, much less
present any legal argument or other basis why these cases (and multiple unpublished
cases with the same analysis and disposition) were incorrectly decided or should not
apply here. Because these cases are dispositive and binding authorities on this issue,
Claimant’s argument is meritless.
B. Board’s Amendment of WCJ Decision
Section 413 of the Act provides that a notice of compensation payable
or an agreement for compensation may be modified to correct a material
typographical, clerical, or factual error. 77 P.S. § 771. This has been judicially
extended to allow correction of WCJ decisions, which may be done on a party’s
petition or sua sponte by either the WCJ or the Board. Johnson v. Workers’ Comp.
Appeal Bd. (Budd Co.), 693 A.2d 1015, 1017-18 (Pa. Cmwlth. 1997) (holding that
“an administrative agency may, on its own motion, correct typographical, clerical
and mechanical errors, as well as undisputed factual errors and factual
misconceptions, provided proper notice and explanation is given”); see also Bentley
v. Workers’ Comp. Appeal Bd. (Pittsburgh Bd. of Educ.), 987 A.2d 1223, 1230 (Pa.
Cmwlth. 2009) (holding that the Board may correct a “technical error” in WCJ
decision); Pritchett v. Workers’ Comp. Appeal Bd. (Stout), 713 A.2d 1214, 1217 &
n.3 (Pa. Cmwlth. 1998) (same).
13
In contrast, Section 413 does not apply where the alleged error involves
a change in the WCJ’s factual or legal analysis or requires additional factual findings
or conclusions of law. Varkey v. Workers’ Comp. Appeal Bd. (Cardone Indus. &
Fireman Fund), 827 A.2d 1267, 1273 (Pa. Cmwlth. 2003); Butcher v. Workmen’s
Comp. Appeal Bd. (Treadway Resort Inn), 517 A.2d 1023, 1026 (Pa. Cmwlth. 1986).
Claimant acknowledges that the WCJ’s sentence that stated Claimant
sustained a cervical injury was an error, given that the accepted description of injury
is lumbar in nature and nothing in the record supports a cervical issue. Claimant’s
Br. at 21. However, Claimant argues that the Board should have remanded the
matter to the WCJ rather than fixing the error itself. Id. at 21-22. Employer responds
that because the error was apparent, easily fixed, and there is no contention that the
error was substantive or germane to the WCJ’s ultimate decision to modify
Claimant’s status based on the IRE, remand was unnecessary. Employer’s Br. at 32-
35. The Board noted the error and its probable basis, determined the error was not
material, and clearly explained its correction by striking the aberrant sentence and
replacing it with the correct description of injury as agreed upon by the parties. R.R.
at 257a-58a. We agree with Employer’s position.
Here, the error in the WCJ’s decision was obvious, apparently due to
retention of a sentence from another decision (involving a cervical injury) that was
used as a template for the decision in this case. The WCJ’s listing of the description
of injury was part of the case history; it was not the subject of dispute, not part of
the ultimate disposition by the WCJ, and did not require additional fact-finding or
analysis to correct. Pursuant to Johnson, Bentley, and Pritchett, the Board did not
err in making the necessary correction rather than remanding to the WCJ. Therefore,
Claimant’s argument is meritless.
14
C. Substantial Evidence in Support of Modification Based on IRE.
“Substantial evidence” is such relevant evidence as a reasonable person
might accept as adequate to support a conclusion. Waldameer Park, Inc. v. Workers’
Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003). In
performing a substantial evidence analysis, we view the evidence in a light most
favorable to the party that prevailed before the WCJ. Id. In a substantial evidence
analysis where both parties present evidence, it is immaterial that there is evidence
in the record supporting a factual finding contrary to that made by the WCJ; rather,
the pertinent inquiry is whether there is any evidence that supports the WCJ’s factual
finding. Id. Mere speculation or conjecture is insufficient to support a factual
finding, but where there exists the ability to draw reasonable and logical inferences
from evidence that is presented, including testimony, a conclusion so derived will
be sufficient, even if it may not be the only possible conclusion. W. Penn Allegheny
Health Sys., Inc. v. Workers’ Comp. Appeal Bd. (Cochenour), 251 A.3d 467, 475
(Pa. Cmwlth. 2021).
The WCJ is the factfinder, and it is solely for the WCJ to assess
credibility and to resolve conflicts in the evidence. Hawbaker v. Workers’ Comp.
Appeal Bd. (Kriner’s Quality Roofing Servs. & Uninsured Emp. Guar. Fund), 159
A.3d 61, 69 (Pa. Cmwlth. 2017). Neither the Board nor this Court may reweigh the
evidence or the WCJ’s credibility determinations. Id. In addition, it is solely for the
WCJ, as the factfinder, to determine what weight to give to any evidence. Id. As
such, the WCJ may reject the testimony of any witness in whole or in part. Id. In
this regard, “[d]etermining the credibility of the witnesses is . . . not an exact science,
and the ultimate conclusion comprises far more than a tally sheet of its various
components.” Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893
15
A.2d 191, 195-96 (Pa. Cmwlth. 2006) (declining to “dissect and analyze each of the
WCJ’s reasons for his credibility determination”). For purposes of appellate review,
it is irrelevant whether there is evidence to support contrary findings; if substantial
evidence supports the WCJ’s necessary findings, those findings will not be disturbed
on appeal. Verizon Pa. Inc. v. Workers’ Comp. Appeal Bd. (Mills), 116 A.3d 1157,
1162 (Pa. Cmwlth. 2015).
i. Inclusion in Record of PDQ from Dr. Gentilezza’s IRE
Claimant argues that the PDQ Claimant completed at Dr. Gentilezza’s
IRE was improperly left out of the record and that the WCJ should have invalidated
his IRE because the PDQ is mandatory and must be utilized. Claimant’s Br. at 22.
Employer responds that Dr. Gentilezza clearly had Claimant complete the PDQ and
utilized it in his impairment calculations. Employer’s Br. at 41-42. Employer adds
that not only did Dr. Gentilezza testify about the PDQ from his IRE, but Dr. Jacob
testified about it as well, and the Act does not require that the PDQ be formally
entered into the record to be part of the overall IRE calculation. Id.The WCJ noted but did not specifically address the discrepancy
between the PDQs; however, the WCJ generally credited Dr. Gentilezza over Dr.
Jacob, stating that Dr. Gentilezza “clearly identified the basis for his opinion while
providing a well-reasoned explanation for how he arrived at that determination.”
R.R. at 229a. The Board agreed with Employer that it was not necessary to formally
include the PDQ in the record because Dr. Gentilezza clearly used it and testified
about it, and his testimony was generally credited by the WCJ. Id. at 265a-66a.
Therefore, the Board concluded that Dr. Gentilezza’s IRE constituted substantial
evidence to support the WCJ’s modification of Claimant’s status to TPD. Id. We
agree.
16
Claimant provides no authority to support his position that because the
PDQ he completed for Dr. Gentilezza was not formally entered into the record, the
IRE is invalid. There is no question that the PDQ existed and was part of Dr.
Gentilezza’s calculations. He discussed it in his IRE report, which was appended to
his deposition transcript that was made an exhibit in this matter. R.R. at 89a.
Moreover, he testified about it when he discussed Claimant’s verbal report of pain:
“he completed a [PDQ], which formalizes those findings with respect to pain and
activities of daily living and he had a 119 as a score of the PDQ.” Id. at 53a. Dr.
Gentilezza explained that when he did the calculations for Claimant’s IRE, the PDQ
amounted to a Grade 3 modifier for that portion of the evaluation. Id. at 53a & 58a.
Dr. Gentilezza also testified that if he had used Dr. Jacob’s PDQ figure of 132, which
would amount to a Grade 4 modifier, his overall impairment rating would rise only
to 33%. Id. at 59a-60a & 62a. Moreover, Dr. Jacob testified about the Gentilezza
PDQ in comparison to the one Claimant completed for him. Id. at 138a.
As noted, the WCJ is the factfinder, and it is solely for the WCJ to
assess credibility and to resolve conflicts in the evidence, which the WCJ did here
by explaining that Dr. Gentilezza was more credible overall than Dr. Jacob.
Hawbaker, 159 A.3d at 69. Nor was the WCJ bound to specifically address the
PDQs because “[d]etermining the credibility of the witnesses . . . is not an exact
science, and the ultimate conclusion comprises far more than a tally sheet of its
various components.” Dorsey, 893 A.2d at 195-96 (declining to “dissect and analyze
each of the WCJ’s reasons for his credibility determination”). Therefore, the WCJ
did not err in crediting Dr. Gentilezza and accepting his IRE even though the PDQ
was not formally included in the record, and the Board did not err in affirming.
17
ii. Claimant’s Lumbar Evaluation and Use of Table 17-5 in the AMA Guides
Before and since Protz II and Act 111, claimants may contest the
substantive results of an employer’s IRE by presenting an IRE of their own. See
Brian Temme Tree Serv. v. Ecott (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No.
601 C.D. 2021, filed May 10, 2022), slip op. at 6-7, 2022 WL 1468351, at *3
(unreported) (addressing competing IREs in post-Protz II context).5 In this context,
each IRE is treated as medical evidence no different from any other medical
evaluation. Verizon Pa., 116 A.3d at 1163. The doctors who perform the IREs are
subject to cross-examination and credibility determinations by the WCJ, including
as to their methodology, application of the AMA Guides, and calculations. Id.In Commonwealth of Pennsylvania/DPW-Loysville Youth Center v.
Workers’ Compensation Appeal Board (Slessler), 103 A.3d 397 (Pa. Cmwlth. 2014)
(Slessler), the claimant’s treating doctor’s impairment rating was 54%, which was
sufficient to avoid modification under the previous IRE provisions in the Act, and
the employer’s doctor’s impairment rating was 49%, which was sufficient for
modification. Id. at 402. The employer’s doctor critiqued the claimant’s doctor’s
IRE methodology and calculations as inaccurate and based on a misunderstanding
of how modifiers should be used. Id. The WCJ considered both experts’ testimonies
and found in the claimant’s favor, which the Board affirmed. Id. at 403-04. We
remanded for fact specific reasons not at issue here but noted that “any failure of a
medical expert to apply pertinent guidelines would affect the credibility of such a
witness rather than his competency.” Id. at 405.
In Verizon Pennsylvania, also under the previous IRE provisions, the
employer’s IRE returned an impairment rating of 44%, while the claimant’s IRE
5
This Court’s unreported memorandum opinions issued after January 15, 2008, may be
cited for their persuasive value. 210 Pa. Code § 69.414(a).
18
returned a rating of 56%. 116 A.3d at 1160. The WCJ credited the claimant’s doctor
and denied the employer’s modification petition, which the Board affirmed. Id. at
1161. We likewise affirmed, relying in part on Slessler and noting that when there
are competing IREs, so long as the authoring doctors’ testimony is competent, the
WCJ is to evaluate the weight and credibility of the evidence and articulate objective
reasons for accepting the testimony and IRE of one doctor over the other. Id. at
1163-64.
Here, Claimant argues that Dr. Gentilezza’s IRE was defective and his
testimony lacked competence because he applied grade modifiers to Claimant’s
evaluation in contravention of Table 17-5 of the AMA Guides, which Claimant
characterizes as stating that “where there is a positive EMG study and an MRI
showing disc injuries then the clinical studies and the grade modifiers do not apply.”
Claimant’s Br. at 22-23. Employer denies any flaws in Dr. Gentilezza’s
methodology, notes that Dr. Jacob did not use Table 17-5 either, and asserts that
there is a certain degree of subjectivity and judgment in IREs. Employer’s Br. at 42-
45. Employer adds that even if Dr. Gentilezza erred in his application of the AMA
Guides, that went to the weight and not the competency of his testimony. Id.As noted, the WCJ credited Dr. Gentilezza over Dr. Jacob. R.R. at
229a. In affirming, the Board noted that IREs entail judgment on the part of doctors
and are therefore subject to variations and discrepancies in methodology and
application. Id. at 263a. As the Board explained, the issue here was not Dr.
Gentilezza’s competence or the validity of his IRE, but disagreements between Dr.
Gentilezza and Dr. Jacob on matters of medical judgment, which went to the weight
and credibility of their testimonies. Id. at 263a-64a. The Board therefore concluded
19
that the WCJ’s determination that Dr. Gentilezza’s testimony warranted greater
weight was not subject to disturbance on appeal. Id. We agree.
First, Claimant’s assertion that Dr. Gentilezza’s IRE is fatally flawed
because he did not use Table 17-5 lacks merit. Claimant has presented no legal
authority for this argument, nor is it supported by the record here. Dr. Gentilezza
stated that Table 17-5 is an “overview” that is not used in the actual calculations as
it is not “part of the formula to figure it out.” R.R. at 63a. Dr. Jacob specifically
stated that he had not used Table 17-5 either, characterizing it as “just a summary”
that cannot be used. Id. at 140a. Table 17-5 is in the record as an exhibit to Dr.
Jacob’s deposition, titled “Adjustment Grid: Summary,” and refers to more specific
tables for the three components of a lumbar evaluation: functional history (PDQ),
physical examination, and clinical studies. Id. at 183a. It also includes general
characteristics of each grade modifier within those categories. Grade 0 indicates
that, for example, based on the doctor’s physical examination, the claimant has “no
problem” and Grade 4 indicates that the claimant has a “very severe problem.” Id.Table 17-5 does not say, as Claimant argues, that “where there is a positive EMG
study and an MRI showing disc injuries[,] then the clinical studies and the grade
modifiers do not apply.” See id.; Claimant’s Br. at 22-23. Given Table 17-5’s title
designation as a summary, its generality, both doctors’ characterization of it as such,
and their testimony that they had not specifically used it, Claimant’s argument that
Dr. Gentilezza’s non-use of it invalidated his IRE is meritless.
However, setting aside Table 17-5, Claimant’s argument may also be
read as seeking to disqualify Dr. Gentilezza’s IRE and testimony because he used
grade modifiers based on Claimant’s diagnostic tests in his calculations when
20
according to Claimant, those tests should have been limited in their application to
the diagnosis portion of the IRE. See Claimant’s Br. at 22-23. We disagree.
Dr. Gentilezza recounted his methodology in detail, with references to
specific aspects of the AMA Guides’ chapter on lumbar evaluations. R.R. at 58a-
63a. He explained why he had assigned certain grade modifiers differently from Dr.
Jacob. Id. at 58a. Relevant to Claimant’s argument, Dr. Gentilezza explained that
he did not include Claimant’s EMG in determining his grade modifier evaluation in
the medical records category because he had already used it in the diagnosis phase
of the IRE, but included the MRI because it was relevant in its category and
consistent with his exam results. Id. at 58a-59a.
Dr. Jacob, by contrast, was adamant that the IRE evaluator can never
“double-dip” and use diagnostic tests for both diagnosis and calculation. Id. at 149a-
56a. However, as set forth above, Dr. Gentilezza stated that he had used the EMG
for diagnostic purposes and the MRI as part of his determination of which grade
modifier to apply in the medical records category. This did not amount to “double-
dipping.” Moreover, Dr. Jacob could not point to this directive in the AMA Guides
and also acknowledged that the AMA Guides are not “perfect science” in terms of
creating a qualitative figure and that some interpretation by the IRE doctor is needed.
Id. at 145a & 156a-57a.
Considering the foregoing, this case is analogous to Slessler and
Verizon Pennsylvania, in that the differences of opinions between the two IRE
doctors, both in their conclusions and in their methodologies, are questions of
medical judgment. These went to the weight and credibility of their testimonies, the
evaluation of which was reserved to the WCJ and cannot be disturbed on appeal.
The WCJ’s acceptance of Dr. Gentilezza’s testimony over that of Dr. Jacob was
21
supported by substantial evidence, particularly Dr. Gentilezza’s detailed explanation
of his approach, reasoning, and conclusions. Claimant has not shown that the WCJ’s
crediting of Dr. Gentilezza was unsupported or amounted to arbitrary or capricious
disregard of evidence. Therefore, the Board did not err in affirming the WCJ, and
Claimant’s argument in this regard is meritless.
iii. Claimant’s Lumbar Evaluation and Inclusion of Left Leg Symptoms
In Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.),
152 A.3d 984 (Pa. 2017) (Duffey II), our Supreme Court noted that, pursuant to the
Act, the IRE physician-evaluator bears the “obligation to determine the degree of
impairment due to the compensable injury.” Id. at 989. (citing 77 P.S. § 511.2(1)).
The required evaluation is of “the percentage of permanent impairment of the whole
body resulting from the compensable injury.” Id. (citing 77 P.S. § 511.2(8)(ii)). In
doing so, “a physician-evaluator simply may not entirely disavow any and all
responsibility to consider causality relative to a given condition.” Id. The Court
stated:
We have no difference with the Commonwealth Court’s
reasonable holding that a notice of compensation payable
should define “compensable injury” for purposes of this
inquiry. Such recognition, however, simply does not
determine the range of impairments which may be “due
to” such injury. Under [the Act] and the applicable
impairment guidelines, the physician-evaluator must
exercise professional judgment to render appropriate
decisions concerning both causality and apportionment.
[Accord AMA Guides] (“Physicians must use their clinical
knowledge, skills, and abilities to arrive at a specific
diagnosis; define the pathology; and rate impairments
based on the AMA Guides’ criteria.”).
Id. The Court later reiterated this point: “In all events, the evaluative judgment is
the touchstone on these subjects, as well as on the topic of causality.” Id. at 991.
22
The examiner’s “discernment cannot be withheld on the basis that the physician-
examiner believes the undertaking is a more limited one,” such as the non-inclusion
in a notice of compensation payable of a condition that is present at the IRE and may
be causally related to the work injury. Id. at 996.
In Sicilia v. API Roofers Advantage Program (Workers’ Compensation
Appeal Board), 277 A.3d 1213 (Pa. Cmwlth. 2022), this Court clarified that even if
a description of injury has been formally adjudicated in previous WCJ decisions,
those decisions do not have preclusive effect on the IRE evaluator, noting that our
IRE scheme “places a great deal of discretion in the physician-evaluator to determine
what diagnoses are ‘due to’ a work-related injury,” at least in part because a
description of injury can be modified at any time. Id. at 1218 & n.6.6
Claimant asserts that because Dr. Gentilezza detected left leg issues
during the IRE, he was bound to include those in his impairment rating even though
left leg conditions were not part of Claimant’s accepted and adjudicated description
of injury. Claimant’s Br. at 23-24. Employer responds that left leg conditions were
not part of the recognized work injury; therefore, Dr. Gentilezza did not err in
omitting them from his IRE calculations. Employer’s Br. at 45-46. The WCJ’s
explanation for why he discredited Dr. Jacob’s testimony included his inclusion of
left leg issues, which the WCJ noted had not been “accepted as compensable.” R.R.
at 229a. The Board concluded that the WCJ had not erred in this aspect of his
credibility determinations, which cannot be second-guessed. R.R. at 264 n.13.
6
Sicilia remains precedential as of this decision, but has been accepted for review by our
Supreme Court to determine whether this Court “impermissibly expand[ed] the holdings in [Duffey
II] . . . as to usurp the authority of the [WCJ] to determine the nature and extent of the compensable
injury?” Sicilia v. API Roofers Advantage Program (Workers. Comp. Appeal Bd.) (Pa., No. 287
MAL 2022, filed Feb. 15, 2023), 2023 WL 2008352.
23
Although the WCJ’s credibility determinations are generally shielded
from appellate disturbance, pursuant to Duffey II and confirmed in Sicilia, the doctor
conducting an IRE must consider all conditions he or she detects that may be
causally related to the work injury. Here, Dr. Gentilezza properly considered
Claimant’s left leg issues as they pertained to the work injury. In his recitation of
Claimant’s history, Dr. Gentilezza noted that Claimant had reported left leg pain to
one of his treating doctors in April 2017. R.R. at 52a & 56a. Claimant also reported
left leg numbness and tingling to Dr. Gentilezza at the IRE and Dr. Gentilezza
recorded left leg symptoms and weakness on his general clinical examination. Id. at
53a-54a & 61a.
However, Dr. Gentilezza concluded that Claimant’s left leg symptoms
were not consistent with or causally related to his work injury. R.R. at 57a & 63a.
This was in part because Claimant’s 2017 EMG showed only right-sided
radiculopathy; Dr. Gentilezza described that EMG as clear, obvious, not equivocal,
and objective as compared with Claimant’s reported left leg symptoms to him and
as noted in Claimant’s records. Id. at 56a, 87a & 93a. Dr. Gentilezza acknowledged
that if Claimant had been limping to favor his right leg due to the injury, left leg
issues could develop due to the compensatory pressure on that limb. Id. at 61a.
However, that condition would not necessarily warrant inclusion in the IRE calculus
as a separate “impairment” or condition requiring additional points. Id.Dr. Jacob noted the 2017 EMG showing only right-sided radiculopathy7
and acknowledged that none of the previous WCJ decisions or medical records
attributed any left leg issues to the work injury. R.R. at 111a & 130a-32a. Like Dr.
Gentilezza, Dr. Jacob detected left leg issues when examining Claimant. Id. at 120a-
7
Dr. Jacob stated that the test was from July 2017, but his report confirms that it was the
same January 2017 EMG study that Dr. Gentilezza considered. R.R. at 176a.
24
21a, 129a & 134a. Unlike Dr. Gentilezza, however, Dr. Jacob attributed these
conditions to the impairment Claimant sustained from the work injury. Id. at 121a.
Whereas Dr. Gentilezza relied on the lack of EMG evidence to exclude left leg issues
from his IRE conclusions, Dr. Jacob believed that an EMG is “only part of the
diagnosis.” Id. at 133a-37a. Nonetheless, Dr. Jacob subsequently acknowledged
that his ultimate impairment rating would not have changed whether or not Claimant
presented with left leg issues:
Q: [L]et’s just assume for purposes of my question that
[Claimant] doesn’t have left lower extremity symptoms,
would that change the rating of his whole body
impairment?
A: No.
Q: The impairment is the same, is that true?
A: That’s correct.
Id. at 151a. This indicates that Claimant’s left leg issues were not definitive in Dr.
Jacob’s calculations. Moreover, it reinforces that although IREs aim to quantify a
claimant’s impairment, the resulting rating depends in large part on the medical
judgment of the doctor conducting the evaluation. See Duffey II, 152 A.3d at 989-
91. Dr. Gentilezza declined to include left leg issues in his clinical examination
calculations, resulting in a Grade 2 modifier, because they were not confirmed by an
EMG and he did not view them as a distinct component of Claimant’s impairment.
R.R. at 56a-57a. Thus, although Dr. Gentilezza ultimately did not include
Claimant’s left leg issues, he clearly fulfilled his obligation to consider them in his
report and in his deposition. Dr. Jacob included them in that part of his clinical exam
calculations, resulting in a Grade 3 modifier, because he gave Claimant’s EMG
25
results less emphasis than his own examination findings; he admitted, however, that
their inclusion did not affect his final rating.
It follows that Claimant’s left leg issues were not relevant to the
doctors’ respective ultimate ratings, which at any rate embodied their individual
exercises of medical judgment. Although the WCJ may have erred in relying on the
non-compensability of Claimant’s left leg issues as a basis for finding Dr. Jacob’s
testimony less credible, that was not the only basis for his credibility determination.
Any error was therefore harmless and the Board did not err in affirming.
III. Conclusion
Claimant has not established that his IRE was unconstitutional or that
the Board should not have corrected the WCJ’s error in describing Claimant’s
diagnosis. Claimant also has not established that Dr. Gentilezza’s IRE was defective
or that his testimony concerning his IRE was incompetent. As such, it was for the
WCJ to evaluate and weigh the evidence and credit Dr. Gentilezza over Dr. Jacob,
which the WCJ specified was based on Dr. Gentilezza’s detailed explanation of his
approach, reasoning, and conclusions. Claimant has not shown that the WCJ’s
crediting of Dr. Gentilezza was unsupported by substantial evidence or amounted to
arbitrary or capricious disregard of evidence, therefore the Board did not err in
affirming the WCJ in granting Employer’s modification petition. We affirm.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jay T. Tedesco, :
Petitioner :
:
v. :
:
Kane Freight Lines, Inc. (Workers’ :
Compensation Appeal Board), : No. 1270 C.D. 2021
Respondent :
ORDER
AND NOW, this 19th day of May, 2023, the October 21, 2021, order
of the Board, which affirmed the Workers’ Compensation Judge’s November 4,
2020, order to modify Jay T. Tedesco’s benefits status from total temporary
disability to total partial disability, is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge