A. Pinder v. WCAB (Lucent Technologies)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Pinder, :
: No. 23 C.D. 2014
Petitioner : Submitted: July 18, 2014
:
v. :
:
Workers’ Compensation :
Appeal Board (Lucent Technologies), :
:
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: August 28, 2014
Anthony Pinder (Claimant) petitions for review of the December 13,
2013, order of the Workers’ Compensation Appeal Board (WCAB) that affirmed the
decision of a workers’ compensation judge (WCJ) to grant the modification petition
filed by Lucent Technologies (Employer). We affirm.
On September 29, 1998, Claimant suffered a work-related injury to his
left foot and ankle. Employer issued a notice of compensation payable listing
Claimant’s injury as “a left foot sprain.” (WCJ’s Findings of Fact, No. 2.)
In April 2008, Employer filed a termination petition alleging that
Claimant had fully recovered from his work-related injury. Thereafter, Claimant
filed a review petition to expand his work-related injury. The petitions were
consolidated before a WCJ.
During the pendency of the consolidated petitions, Employer requested
an impairment rating evaluation (IRE). William F. Bonner, M.D., examined
Claimant on February 11, 2009, and concluded that Claimant had a 12-percent left
lower extremity impairment and a 5-percent whole-body impairment. Based on the
IRE, Employer filed the modification petition at issue on July 17, 2009. (WCJ’s
Findings of Fact, Nos. 4, 9.)
On December 17, 2009, the WCJ issued a decision on the consolidated
petitions. The WCJ denied the termination petition, granted the review petition, and
expanded Claimant’s work injury to include a posterior tibial tendon tear and a
ligament tear, which required surgery in 1999. (Id., No. 5.)
Thereafter, a different WCJ held a hearing on Employer’s modification
petition. Employer presented the IRE and Dr. Bonner’s deposition testimony. Dr.
Bonner testified that Claimant had a 12-percent left foot and ankle impairment and a
5- percent whole-body impairment under the American Medical Association’s Guides
to the Evaluation of Permanent Impairment, Sixth Edition (Guides). Dr. Bonner
stated that on February 11, 2009, he took a history from Claimant, reviewed treatment
records, and examined Claimant. Specifically, Dr. Bonner reviewed the January 27,
1999, surgical report of Keith I. Wapner, M.D., who operated to correct Claimant’s
2
torn posterior tibial tendon. Dr. Bonner observed that there had not been any
significant change to Claimant’s condition over a long period of time and concluded
that Claimant had reached maximum medical improvement. (Id., Nos. 8-10.)
The WCJ credited Dr. Bonner’s testimony that Claimant had reached
maximum medical improvement as of the date of the IRE, and that Claimant’s
impairment rating was far below the 50-percent threshold. (Id., Nos. 9, 12.) The
WCJ found it significant that in the previously litigated consolidated petitions, the
first WCJ found that Claimant had reached maximum medical improvement based on
the medical testimony of Claimant’s expert, Dr. Wapner. (Id., No. 11.) The WCJ
determined that Employer met its burden and granted the modification petition. On
appeal, the WCAB affirmed1 and this appeal followed.2
On appeal, Claimant argues that the WCJ erred in relying on the IRE in
granting the modification petition because Dr. Bonner did not consider all of
Claimant’s compensable injuries. Specifically, because Dr. Bonner’s IRE occurred
on February 11, 2009, before the WCJ’s December 17, 2009, decision that expanded
Claimant’s work injuries to include a posterior tibial tendon tear and a ligament tear
resulting in surgical intervention, Claimant argues that Dr. Bonner could not have
considered those additional injuries when he performed his IRE.
1
The WCAB issued an opinion and order on December 9, 2013, affirming the WCJ’s
decision. On December 13, 2013, the WCAB issued a modified opinion and order that corrected
the pagination and headings in its December 9, 2013, opinion and order.
2
Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law, and whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
3
We initially observe that where, as here, an employer seeks to modify a
claimant’s disability benefits from total to partial based on an IRE requested more
than 60 days after the payment of 104 weeks of total disability, the employer must
prove that the claimant’s impairment rating is less than 50 percent. Diehl v. Workers’
Compensation Appeal Board (I.A. Construction), 5 A.3d 230, 245 (Pa. 2010).
Moreover, when conducting an IRE the examiner must first determine that the
claimant has reached maximum medical improvement before an impairment rating
can be determined. Combine v. Workers’ Compensation Appeal Board (National
Fuel Gas Distribution Corporation), 954 A.2d 776, 780 (Pa. Cmwlth. 2008). The
claimant’s condition at the time of the IRE, not the condition before or after, governs
the IRE’s validity. Westmoreland Regional Hospital v. Workers’ Compensation
Appeal Board (Pickford), 29 A.3d 120, 122 (Pa. Cmwlth. 2011) (en banc). “The IRE
produces a snapshot of the claimant’s condition at the time of the IRE, not a survey of
the claimant’s work-related injuries over a period of time.” Id. at 128.
Here, Dr. Bonner testified that he obtained a history from Claimant and
examined his lower left extremity. The examination revealed a restricted range of
motion, atrophy, loss of longitudinal arch, and a slow gait. (Bonner Dep., 2/27/10, at
16.) Dr. Bonner also reviewed x-ray reports, magnetic resonance imaging reports,
and the medical reports of Claimant’s surgeon and treating physician, Dr. Wapner.
(Id. at 17.) Dr. Bonner adopted the diagnosis given to Claimant by Dr. Wapner of
status postoperative rupture of the tibial tendon with tibial tendon transfer. (Id. at 18-
19.) Utilizing the Guides, Dr. Bonner opined that Claimant had reached maximum
medical improvement and that he had a 12-percent impairment of the left foot and
ankle and a 5-percent whole-body impairment. (Id. at 24.)
4
Contrary to Claimant’s assertion, Dr. Bonner considered Claimant’s
expanded work-related injury based on his adoption of Dr. Wapner’s diagnosis,
which included a rupture of the tibial tendon with tibial tendon transfer. Dr. Bonner
testified as to the degree of Claimant’s impairment as of the date of the IRE, and the
WCJ, as the fact finder and determiner of credibility, was free to accept Dr. Bonner’s
uncontested opinion. See Rissi v. Workers’ Compensation Appeal Board (Tony
DePaul & Son), 808 A.2d 274, 278-79 (Pa. Cmwlth. 2002) (stating that this court will
not re-weigh the evidence or substitute its judgment for that of the WCJ).
Claimant also argues that Dr. Bonner provided conflicting testimony
regarding Claimant’s impairment rating because the IRE report stated that Claimant
had a 12-percent whole-body impairment, whereas Dr. Bonner testified that Claimant
had a 5-percent whole-body impairment.
We initially observe that in a hearing on an employer’s modification
petition that seeks to change a claimant’s disability status from total to partial, the
IRE is merely one piece of evidence. Diehl, 5 A.3d at 41.
[The IRE] is entitled to no more or less weight than the
results of any other examination. The physician who
performed the IRE is subject to cross-examination, and the
WCJ must make appropriate credibility findings related to
the IRE and the performing physician. The claimant,
obviously, may introduce his own evidence regarding his
degree of impairment to rebut the IRE findings.
Id. at 42.
5
Dr. Bonner testified that in performing the IRE, he examined Claimant
and confirmed Claimant’s diagnosis. Utilizing the Guides, Dr. Bonner placed
Claimant in a class and positioned Claimant within that class after considering
Claimant’s functional history, the physical examination findings, and the clinical
reports. (Bonner Dep., 2/17/10, at 18.) Dr. Bonner then calculated an impairment
rating for the left lower extremity. According to Dr. Bonner, Claimant had a “12
percent [impairment] for the foot and ankle,” and a 5-percent whole-body
impairment. (Id. at 25.)
Dr. Bonner also stated that the IRE report contained a typographical
error. (Id. at 23.) Dr. Bonner explained that using the correct calculation and taking
into account adjustments, Claimant “moves from a C to a D. Then we look down and
D now is 12 percent for -- and this where I made an error in that that’s 12 percent for
the lower extremity impairment.” (Id. at 24.)
Although Claimant argues that the IRE was not properly performed, we
reiterate that the WCJ determines the weight and credibility of the evidence.
Lombardo v. Workers’ Compensation Appeal Board (Topps Company, Inc.), 698
A.2d 1378, 1381 (Pa. Cmwlth. 1997). Here, Dr. Bonner explained how he performed
the IRE and the typographical error, and confirmed that the 12-percent impairment is
for the left lower extremity and that the impairment rating was used to determine the
5-percent whole-body impairment. We conclude that the WCJ did not err in crediting
Dr. Bonner’s testimony and accepting his explanation.
6
Accordingly, we affirm.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Pinder, :
: No. 23 C.D. 2014
Petitioner :
:
v. :
:
Workers’ Compensation :
Appeal Board (Lucent Technologies), :
:
Respondent :
ORDER
AND NOW, this 28th day of August, 2014, we hereby affirm the
December 13, 2013, order of the Workers’ Compensation Appeal Board.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge