Tuesday, September 17, 2013

Impaiment Rating Evaluation limits the duration of Benefits ... but Employee can Challenge 490 weeks later!

Challenge to the Impairment Rating Evaluation.
When an injured employee has received 104 weeks of total disability benefits (TTD), the Employer may file a request for the scheduling of an Impairment Rating Evaluation (IRE) in an effort to limit the duration of  benefit status, to a period of 500 weeks. Section 306(a.2), 77 P.S. 511.2.

If the IRE determines that employee is less than 50% impaired under the AMA Guidelines to Impairment, the employee status is changed from total disability, of an unlimited duration, to a partial disability status, of a limited duration of 500 weeks.

An employee may appeal the change to partial disability status, at any time  during  the 500 week period of partial disability. Employee must establish an impairment rating of 50% or greater. Section 306(a.2)(4).

Besozzi v. WCAB (Consol PA Coal Company), No. 610 C.D. 2013, an unreported Memorandum Opinion of a panel of the Commonwealth Court of Pennsylvania, authored by President Judge Pellegrini on August 20, 2013, addressed these issues surrounding the IRE and Employee benefit status.

Factual and Procedural Background

In June of 1997 Employee injured his right arm and upper extremity. Work Comp benefits commenced.
After payment of 104 weeks of TTD benefits, Employer filed a Request for Designation of a Physician to Perform an IRE. (LIBC-766).

Employer IRE
IRE by Dr. V.G. Raghavan on May 2, 2000 determined Employee had a 22% impairment rating, in accord with the AMA Guidelines.

A Notice of Change of Workers' Compensation Disability Status (LIBC-764) was filed June 2, 2000.
Employee's status changed from total to partial effective May 2, 2000.
The 500 week period of partial disability status was set to expire on November 30, 2009.

Employee Medical Attempt #1
Employee filed a Petition to Review his status on September 11, 2009.
[ At this time employee did not have any medical evidence].

On November 30, 2009, Employee was examined by Dr. N. Varrati and he assessed a 53% Impairment Rating. HOWEVER, Dr. Varrati was not licensed to practice medicine in Pennsylvania, as required by Section 306(a.2).
Employer objected to the IRE report of Dr. Varrati and made a motion for dismissal of Employee's review petition. WCJ denied employer's motion to dismiss as "untimely" (what?).

Employee Medical Attempt #2
In support of the Review Petition, Employee offered the January 18, 2000 ***report of Dr. A.C. Nalluri, a Board Certified Psychiatrist licensed to practice in Pennsylvania.
***[the opinion identified this date of exam as 2000, but in the chronology of events, it would seem that this exam was in 2010].

Dr. Nalluri testified via deposition. He diagnosed employee's work-related condition as:
(i) right shoulder capsulitis;
(ii) right elbow arthritis;
(iii) right carpal tunnel syndrome;
(iv) avulsive triceps tendon on the right
(v) ectopic bore or heterotopic ossification in the right elbow;
(vi) right elbow ulnar neuropathy.
[ now that's a lot of orthopedic diagnoses for a Psychiatrist!].
[ Where's the Employee Petition to Review the description of injury?]

Dr. Nalluri testified that Employee had a 54% Impairment ... and this rating applied to November 30, 2009.

Dr. Nalluri stated he used multiple tables, multiple references and his clinical judgment, in assigning this impairment rating. He used a diagnosis-based impairment method, not a range of motion method.

Dr. Nalluri justified using a diagnosis-based impairment method because of the complexity of the case ... and because employee's diagnoses were not conditions set forth in the AMA Guidelines!

As noted by the WCJ (in rejecting Dr. Nalluri's opinions) Dr. Nalluri never explained why he selected the diagnostic-based method when none of the diagnosed conditions were in the AMA Guidelines Tables.

Dr. Nalluri never stated the Impairment Rating according to the range of motion method, even though he took detailed range-of-motion and strength testing of each of the affected areas of the right upper extremity.

In rejecting Dr. Nalluri, the WCJ noted employees' diagnosed conditions were not in the AMA Tables, so Dr. Nalluri chose conditions in the Tables that most approximated employee's condition.
"wrist fusion" was substituted for carpal tunnel syndrome!
"elbow fusion" was substituted for elbow arthritis!
"total shoulder arthroplasty" was substituted for adhesive capsulitis!

WCJ decision relied on Employer Medical Evidence
Anthony Ricci M.D., a Board -Certified expert in Physical Medicine and Rehabilitation performed an IRE on employee. He determined employee demonstrated a 38% Impairment Rating.
He explained he used the Range-of-motion method of evaluation, as the majority, if not all, of employee's impairment at the shoulder, elbow and wrist resulted from limited range of motion.

[In 2000 Dr. Raghavan used the range-of-motion impairment method.]
[Employee was also evaluated by William H. Mitchell M.D. in September 2000 and he used a range-of-motion method to assess an Impairment Rating of 28%.]

WCJ found employee Review petition was timely filed (?).
WCJ found employee failed to sustain his burden in the Review.

Employee appealed to WCAB.
1. It was error for the WCJ to consider Dr. Ricci's critique of Dr. Nalluri's method.
2. This critique was beyond the scope of the report of Dr. Ricci.
3. The WCAB erred in concluding that employee did not comply with the statute.
4. The WCJ erred to consider Dr. Ricci more credible as Dr. Nalluri explained why he chose his method.

Commonwealth Court Decision
1 & 2. It was not an error of law for the WCJ to admit Dr. Ricci's testimony, which critiqued Dr. Nalluri's methodology in calculating the IRE impairment figure, even though that opinion was beyond the scope of his written report. Employee relied upon Rule 4003.5 of the PA Rules of Civil Procedure. However, those rules do not govern workers compensation proceedings.

In the rules that do govern, there is no rule, in the "Special Rules of Administrative Practice and Procedure before Workers' Compensation Judges", which states that a medical expert must confine his opinions exactly to the content of his report. Citing: Stech v. WCAB (MJS Equipment Co.) 678 A.2d 1243 (Pa. Cmwlth. 1996).

3. The subject of Employer's cross-appeal was the employee failure to comply with Section 306(a.2)(4) and have medical evidence of an Impairment Rating in excess of 50% at the time of filing the Review petition or at the time of the initial WCJ hearing.

WCAB "dismissed" Employer appeal ... although in a footnote, they stated dismissal of the Review petition would have been appropriate based upon Employer argument.
Employee appealed this point.
As Employer had prevailed before the WCJ, the WCAB stated Employer did not have "standing" to appeal.
The Court notes, this language regarding dismissal was dicta, as this was not essential to the WCAB decision. Any error would be "harmless error".

4. Employee argued that the WCAB erred in affirming the WCJ conclusion that Dr. Ricci's use of the "range-of-motion estimates" methodology was proper and the use of the "diagnosis methodology" by Dr. Nalluri was improper. However, Employee did not raise this claim of error in his petition for review to the Commonwealth Court, accordingly that argument is waived. Citing: PA Rule of Appellate Procedure 1513(d). and Newcomer Products v. WCAB (Irvin) 826 A.2d 69 (Pa. Cmwlth. 2003).

The Court notes that Employee's 4th argument was essentially a challenge to the weight that the WCJ assigned to the medical opinions.  The Court cited the well established rules of law:
i. The WCJ must weigh the evidence and resolve conflicting testimony;
ii. The WCJ may accept the testimony of any witness, in whole or in part, including medical witnesses.
iii. If supported by substantial evidence, the WCJ findings are conclusive on appeal, despite the existence of contrary evidence.

Practice Pointers:

1. IMO Employer was correct.
The Employee Petition to Review the IRE Impairment Rating should properly be dismissed. Employee did not have medical evidence within the time frame specified by the statute. This language is clear and unambiguous. The WCJ and WCAB should not allow the litigation of this petition.

2. The Employee medical opinion that the January 18, 2000(sic) (was it 2010?) Impairment Rating Exam of Dr. Nalluri "applies" to the deadline of November 30, 2009, is nonsense and a superficial attempt to defeat the clear meaning of the statutory language. Medical evidence is required, within the 500 week period.

3. This decision demonstrates that the IRE determination of partial disability status is not final ... until the 500 weeks of partial disability status expires. Employee has the right to challenge the IRE determination for a period of 9.2 years!

4. ...and, even if the 500 weeks of Partial Disability status expires... employee is still eligible to submit reasonable and necessary medical expenses ,which are causally related to the work injury for review, repricing and reimbursement.

5. Finality? ...How can you close this case?
The only methods to obtain "finality" in a work comp case, is to obtain an order of termination or reach an agreement and/or settlement of this liability with employee.

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