IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael Besozzi, : Petitioner : : v. : No. 610 C.D : Submitted: July 26, 2013 Workers Compensation Appeal : Board (Consol PA Coal Company), : Respondent : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: August 20, 2013 Michael Besozzi (Claimant) petitions for review of the order of the Workers Compensation Appeal Board (Board) affirming the decision of a Workers Compensation Judge (WCJ) dismissing Claimant s Petition for Review of Compensation Benefits (Review Petition) under the Pennsylvania Workers Compensation Act (Act). 1 We affirm. On June 30, 1997, Claimant sustained an injury to his right arm and upper extremity while working for Consol PA Coal Company (Employer). After Claimant had received the requisite 104 weeks of total disability benefits, on January 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S ,

2 12, 2000, pursuant to Section 306(a.2) of the Act, 2 Employer asked the Bureau of Workers Compensation to select a physician to conduct an impairment rating pertinent part: 2 Added by the Act of June 24, 1996, P.L. 350, 77 P.S Section 306(a.2) states, in 77 P.S (1), (2), (7). (1) When an employe has received total disability compensation pursuant to clause (a) for a period of one hundred four weeks, unless otherwise agreed to, the employe shall be required to submit to a medical examination which shall be requested by the insurer within sixty days upon the expiration of the one hundred four weeks to determine the degree of impairment due to the compensable injury, if any. The degree of impairment shall be determined based upon an evaluation by a physician who is licensed in this Commonwealth, chosen by agreement of the parties, or as designated by the department, pursuant to the most recent edition of the American Medical Association Guides to the Evaluation of Permanent Impairment [(AMA Guides)]. (2) If such determination results in an impairment rating that meets a threshold impairment rating that is equal to or greater than fifty per centum impairment under the most recent edition of the [AMA Guides], the employe shall be presumed to be totally disabled and shall continue to receive total disability compensation benefits under clause (a). If such determination results in an impairment rating less than fifty per centum impairment under the most recent edition of the [AMA Guides], the employe shall then receive partial disability benefits under clause (b). * * * (7) In no event shall the total number of weeks of partial disability exceed five hundred weeks for any injury or recurrence thereof, regardless of the changes in status in disability that may occur. In no event shall the total number of weeks of total disability exceed one hundred four weeks for any employe who does not meet a threshold impairment rating that is equal to or greater than fifty per centum impairment under the most recent edition of the [AMA Guides] for any injury or recurrence thereof. 2

3 evaluation (IRE) of Claimant. On May 2, 2000, Vydialinga G. Raghavan, M.D. (Dr. Raghavan) performed an IRE which indicated that Claimant had an impairment rating of 22% of the whole person. On June 2, 2000, a Notice of Change of Workers Compensation Disability Status form was issued indicating that Claimant s status was changed from total disability to partial disability effective May 2, Neither party appealed the notice and the 500-week period for Claimant s receipt of partial disability was set to expire on November 30, However, under Section 306(a.2)(4) of the Act, 4 a claimant can file a petition within those 500 weeks to continue to receive benefits where his impairment rating has increased to 50% or more. On September 11, 2009, within the 500 weeks, Claimant filed a Review Petition alleging an incorrect description of his work-related injury and that he had a worsening of his condition resulting in total disability. On November 30, 2009, Claimant was examined by Nicholas Varrati, M.D. (Dr. Varrati), who found an impairment rating of 53% of the whole person. However, at a hearing on January 12, 3 On September 21, 2000, William H. Mitchell, M.D., performed a second IRE on Claimant which indicated that Claimant had an impairment rating of 28% of the whole person. 4 Section 306(a.2)(4) of the Act states: 77 P.S (4). (4) An employe may appeal the change to partial disability at any time during the five hundred-week period of partial disability; Provided, That there is a determination that the employe meets the threshold impairment rating that is equal to or greater than fifty per centum impairment under the most recent edition of the [AMA Guides]. 3

4 2010, Employer objected to Dr. Varrati s IRE because he is not licensed to practice in Pennsylvania as required by Section 306(a.2) of the Act. Because Dr. Varrati was unlicensed in Pennsylvania, Employer also sought to dismiss the Review Petition because Claimant failed to produce evidence of the threshold impairment rating above 50% prior to the expiration of his 500 weeks of disability benefits as required by Section 306(a.2)(4) of the Act. On March 11, 2010, by interlocutory order, the WCJ denied Employer s motion to dismiss the Review Petition as untimely. In support of his Review Petition, Claimant offered the deposition testimony and report of Anil C. Nalluri, M.D. (Dr. Nalluri), a board certified psychiatrist that is licensed to practice in Pennsylvania, who performed an IRE on January 18, 2000, and found that Claimant had a 54% permanent partial impairment of the whole person and that this impairment rating applied prior to November 30, He testified that he diagnosed Claimant with right shoulder adhesive capsulitis; right elbow arthritis; right carpal tunnel syndrome; avulsive triceps tendon on the right; development of ectopic bore or heterotopic ossification in the right elbow; and right elbow ulnar neuropathy, all of which are related to Claimant s work injury. He noted extreme tenderness of Claimant s right upper extremity on light touching and reduced muscle mass of the right arm due to non-use and decreased range of motion in Claimant s right shoulder, right elbow and right wrist. Dr. Nalluri stated that, in determining Claimant s impairment level, there was not one particular table in the most recent AMA Guides that could be used because of the complexity of this case and that he used multiple tables, multiple references and his clinical judgment in assigning the impairment ratings. He testified that he found a 25% impairment of Claimant s right wrist from the AMA Guides; a 35% impairment for the right elbow; a 49% impairment for the right shoulder; and deficits in the 4

5 peripheral sensory and motor nerves which resulted in a total 90% impairment of the whole right upper extremity. He stated that the loss of the whole right upper extremity is a 60% loss of the whole human so that Claimant s 90% loss of the whole right upper extremity constitutes a 54% impairment of the whole person when one uses the AMA Guides combined value chart. Dr. Nalluri acknowledged that the AMA Guides are just a guide and do not list every diagnosis, and that doctors must use their judgment, common sense and clinical wisdom to arrive at an impairment rating. Employer offered the deposition testimony and report of Anthony Ricci, M.D. (Dr. Ricci), a board certified physician in physical medicine and rehabilitation licensed to practice in Pennsylvania, who performed an IRE and found that Claimant had an impairment rating of 38% of the whole person. He testified that Claimant s accepted work-related injuries are right elbow ectopic bone/heterotopic ossification; right ulnar neuropathy; adhesive capsulitis of the right shoulder; right elbow arthritis; right carpal tunnel syndrome; and right triceps tendon avulsion. He stated that his examination showed that Claimant had painful and limited range of motion of the right shoulder and elbow, and normal reflexes with reduced strength and sensation to light touch in the right hand. He opined that Claimant has reached maximum medical improvement from the work-related injuries, a threshold before performing a rating under the AMA Guides. Dr. Ricci determined that using the AMA Guides, Claimant had a 63% impairment of the right upper extremity resulting in a 38% whole body impairment. (Reproduced Record (R.R.) at 375a-376a.) He explained that in arriving at these percentages, he used the range of motion impairment method that was also used by Dr. Raghavan in the 2000 IRE because the majority, if not all, of Claimant s impairment at the shoulder, elbow and wrist resulted from limited range of motion. 5

6 He stated that the AMA Guides encourage the use of the range-of-motion method where the relevant diagnoses are not listed therein and there is a significant range of motion deficit. Dr. Ricci noted that Dr. Nalluri used the diagnosis-based impairment method in determining Claimant s impairment rating, but that the use of this method was not appropriate in this case because none of the diagnoses related to Claimant s shoulder, elbow and wrist that were accepted and confirmed by examination are listed in the AMA Guides. Claimant objected to Dr. Ricci s testimony regarding the methodology that he used in determining Claimant s impairment rating and the propriety of Dr. Nalluri s methodology because it was outside the scope of Dr. Ricci s expert report and he was not offered as an expert on the proper methodology of using the AMA Guides. In his decision, the WCJ initially found that Claimant s Review Petition was timely filed based on Dr. Nalluri s credible testimony that, even though his examination occurred after the 500 weeks of partial disability, any impairment would have been in effect during the 500-week period of partial disability. However, accepting Dr. Ricci s medical opinion as credible and rejecting Dr. Nalluri s conflicting medical opinion as not credible, the WCJ dismissed the Review Petition because Claimant failed to sustain his burden of establishing a whole body impairment rating of 50% or greater in order to change his partial disability status to total disability. 5 5 The WCJ explained: [F]or a physician to perform an IRE that physician must initially determine whether or not the claimant s impairment rating evaluation should be performed on a range of motion method or a diagnostic based method. The problem with utilizing a diagnosis based method to arrive at an impairment rating in this case is that none of (Footnote continued on next page ) 6

7 Claimant appealed to the Board, arguing that the WCJ erred in finding Dr. Ricci s medical opinion more credible based on Dr. Ricci s critique of Dr. Nalluri s methodology because it was outside the scope of Dr. Ricci s report and his expertise. Claimant also argued that the WCJ erred in finding Dr. Ricci s medical opinion more credible because Dr. Nalluri testified as to why he chose his (continued ) (WCJ Decision at 9-10.) the claimant s work related diagnoses appear in the tables in Chapter 15 of the AMA Guidelines. Dr. Nalluri clearly indicated during his deposition that Dr. Ricci was correct in this assessment in that each of Dr. Nalluri s diagnosis based evaluations were for conditions not set forth in the AMA Guidelines. It must be noted that Dr. Ricci was not alone in not applying the diagnosis based method in the claimant s case. Neither Dr. Mitchell nor Dr. Raghavan applied the diagnosis based method in [E]ven though Dr. Nalluri took detailed range of motion and strength testing of each of the affected parts of the right upper extremity, Dr. Nalluri never indicated what the claimant s impairment rating would have been had he utilized the range of motion method. Also, Dr. Nalluri never testified as to why he selected the diagnostic based method in this case when none of the diagnosed conditions were listed in the Table. Dr. Nalluri did explain that he used his clinical judgment in choosing the diagnosed condition set forth in the Table that most approximated the claimant s diagnosed condition in rating each of the claimant s diagnosed conditions. Dr. Nalluri utilized the AMA Guideline diagnosis of wrist fusion for the claimant s diagnosed condition of carpal tunnel syndrome. He utilized the AMA Guideline diagnosis of elbow fusion/arthroplasty for the claimant s diagnosis of elbow arthritis/heterotopic ossification and he utilized the AMA Guideline diagnosis of total shoulder arthroplasty for the claimant s diagnosis of adhesive capsulitis. Given the fact that none of the claimant s diagnosed conditions were in the Table, Dr. Ricci s opinion that the claimant s diagnosed conditions could not be made to fit the listed diagnoses in this case and the other physicians use of the range of motion method, I cannot accept Dr. Nalluri s opinion on this point. 7

8 methodology and it is specifically endorsed by the AMA Guides. Employer crossappealed, arguing that the WCJ erred in determining that Claimant s Review Petition was timely under Section 306(a.2)(4) of the Act. The Board rejected Claimant s arguments as [n]othing more than attacks on the WCJ s credibility determinations and the weight to be afforded the evidence, which are beyond our scope of review. (Board Opinion at 6.) The Board also determined that, contrary to Claimant s arguments, the WCJ s findings regarding the testimonies of Dr. Nalluri and Dr. Ricci was supported by the record and supports the finding that Claimant s impairment rating was not greater than 50%, and that the WCJ did not err in admitting Dr. Ricci s testimony that was purportedly outside the scope of his expert report. Finally, the Board also rejected Employer s argument regarding the timeliness of the Review Petition under Section 306(a.2)(4), stating that [t]echnically, [Employer] is not aggrieved by the WCJ s Decision and Order because the WCJ dismissed Claimant s Review Petition. Therefore, [Employer] does not have standing to Appeal, and we must dismiss its Appeal. (Id. at 7) (citation omitted). 6 Accordingly, the Board affirmed the WCJ s Decision and 6 However, in a footnote, the Board noted: We note that [Employer] is correct that Claimant did not have an IRE with an impairment rating equal to or greater than 50% at the time he filed his Petition or at the first hearing in this matter. It was not until November 30, 2009, the day that his 500 weeks of partial disability expired, that Claimant obtained an IRE with an impairment rating of 53% from Dr. Varrati. Thus, we agree with [Employer] that a dismissal of Claimant s Review Petition on this basis would have been appropriate. (Id. at 7 n.3) (citation omitted). 8

9 dismissed Employer s cross-appeal, and Claimant filed the instant appeal to this Court. 7 Claimant first argues 8 that the WCJ erred in admitting Dr. Ricci s deposition testimony criticizing Dr. Nalluri s methodology because Dr. Ricci s report does not mention the proper methodology to be used and does not contain any criticism of Dr. Nalluri s methodology. Claimant asserts that Dr. Ricci s testimony in this regard was beyond the scope of his report and his expertise in violation of Pa. R.C.P. No (c) 9 and the WCJ erred in its admission into evidence. However, Claimant s reliance on the Rules of Civil Procedure is misplaced because those rules do not govern workers compensation proceedings. Ace Tire Company v. Workmen s Compensation Appeal Board (Hand), 515 A.2d 7 Our scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, errors of law were committed, or violations of constitutional rights or Board procedures occurred. Johnson v. Workers Compensation Appeal Board (Sealy Components Group), 982 A.2d 1253, 1256 n.5 (Pa. Cmwlth. 2009), appeal denied, 606 Pa. 674, 996 A.2d 493 (2010). 8 In the interest of clarity, we reorder the claims raised by Claimant in this appeal. 9 Pa. R.C.P. No (c) states: To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, the direct testimony of the expert at the trial may not be inconsistent with or go beyond the fair scope of his or her testimony in the discovery proceedings as set forth in the deposition, answer to an interrogatory, separate report, or supplement thereto. However, the expert shall not be prevented from testifying as to facts or opinions on matters on which the expert has not been interrogated in the discovery proceedings. 9

10 1020, 1023 (Pa. Cmwlth. 1986), appeal denied, 515 Pa. 610, 529 A.2d 1083 (1987); Yellow Freight System, Inc. v. Workmen s Compensation Appeal Board, 423 A.2d 1125, 1127 (Pa. Cmwlth. 1981). Rather, workers compensation proceedings are governed by the Special Rules of Administrative Practice and Procedure Before Workers Compensation Judges (Special Rules), 34 Pa. Code , and the Special Rules do not contain a provision analogous to Pa. R.C.P. No (c). There is no requirement in those rules that a medical expert in workers compensation cases must confine himself exactly to the content of his expert report. See Stech v. Workmen s Compensation Appeal Board (MJS Equipment Company), 678 A.2d 1243, (Pa. Cmwlth. 1996), appeal denied, 548 Pa. 663, 698 A.2d 69 (1997) (holding that a WCJ did not err by allowing a medical expert to testify in his deposition regarding causation issues when his report was limited to the issue of the claimant s employability.) Likewise, here, the WCJ did not err by allowing Dr. Ricci to testify regarding the methodology underlying his determination of Claimant s impairment rating and to criticize the methodology used by Dr. Nalluri. Claimant next argues that the Board erred in determining that he did not comply with the requirements of Section 306(a.2)(4) of the Act because he did not have an impairment rating of 50% or greater at the time he filed his Review Petition or at the time of the first hearing. As noted above, Employer cross-appealed the WCJ s decision arguing that the WCJ erred in determining that Claimant s petition met Section 306(a.2)(4) s requirements. However, the Board dismissed the crossappeal because Employer lacked standing and not due to the merits of this claim. (See Board Opinion at 7.) While the Board indicated in a footnote that dismissal of the Review Petition would have been appropriate on this basis, (see id. at n.3), its statements in this regard are dicta because they are not essential to the Board s 10

11 judgment or material to its adjudication dismissing the cross-appeal based on Employer s lack of standing. Phoenixville Hospital v. Workers Compensation Appeal Board (Shoap), 2 A.3d 689, 695 n.10 (Pa. Cmwlth. 2010), appeal granted, 610 Pa. 203, 18 A.3d 1093 (2011); Wright v. Workmen s Compensation Appeal Board (Adams Mark Hotel), 639 A.2d 1347, 1350 n.5 (Pa. Cmwlth. 1994). Even if it is assumed that Claimant is correct in this regard, any purported Board error is harmless because it did not affect the outcome of the case. See, e.g., Universal AM- CAN Ltd. and AIG Claim Services, Inc. v. Workers Compensation Appeal Board (Minteer), 870 A.2d 961, 966 n.6 (Pa. Cmwlth.), appeal denied, 584 Pa. 689, 881 A.2d 821 (2005) (holding that the Board s application of the doctrine of quasijudicial immunity in a supersedeas fund reimbursement proceeding was harmless error because it did not affect the outcome of the case). 10 Finally, Claimant also argues that the Board erred in affirming the WCJ s conclusion that in determining his impairment, Dr. Ricci s use of the range of motion estimates methodology was proper and that Dr. Nalluri s use of the diagnosis methodology was improper. However, Claimant did not raise this claim of error in the petition for review that he filed in this Court. (See Petition for Review at 1-2.) Accordingly, this claim will not be addressed in this appeal. Pa. R.A.P. 1513(d); Werner v. Zazyczny, 545 Pa. 570, 575 n.1, 681 A.2d 1331, 1333 n.1 (1996); United Transportation Union, Pennsylvania State Legislative Board v. Pennsylvania Public Utility Commission, A.3d, (Pa. Cmwlth., No C.D. 2012, 10 See, e.g., White v. Workmen s Compensation Appeal Board (Good Shepherd Rehab Hospital), 666 A.2d 1128, 1131 n. 6 (Pa. Cmwlth. 1995) ( This court may affirm the judgment of an administrative agency where the result is correct, even though the reason given is erroneous, when the correct basis for the decision is clear on the record. ) (citation omitted). 11

12 filed May 20, 2013), slip op. at 26-27; Newcomer Products v. Workers Compensation Appeal Board (Irvin), 826 A.2d 69, 76 n. 17 (Pa. Cmwlth. 2003). 11 Accordingly, the Board s order is affirmed. DAN PELLEGRINI, President Judge 11 Moreover, in making this argument, Claimant is essentially challenging the weight that was assigned to Dr. Ricci s testimony, a matter [that is] entrusted solely to the WCJ as the factfinder. Barrett v. Workers Compensation Appeal Board (Sunoco, Inc.), 987 A.2d 1280, 1287 (Pa. Cmwlth.), appeal denied, 608 Pa. 670, 13 A.3d 480 (2010) (refusing to disturb a WCJ s reliance on a valid IRE, despite the claimant s challenges to the IRE doctor s methodology in conducting it). As the fact finder, the WCJ must weigh the evidence and resolve conflicting testimony, and in doing so, has the prerogative to accept or reject, in whole or in part, the testimony of any witness, including medical witnesses. Alpo Petfoods, Inc. v. Workers Compensation Appeal Board (Neff), 663 A.2d 293, 295 (Pa. Cmwlth. 1995). If supported by substantial evidence, a WCJ s findings are conclusive on appeal, despite the existence of contrary evidence. Watson v. Workers Compensation Appeal Board (Special People in Northeast), 949 A.2d 949, 953 (Pa. Cmwlth. 2008). In this case, Dr. Ricci s testimony constitutes competent evidence to support the WCJ s findings and, therefore, they will not be disturbed on appeal. Id. 12

13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael Besozzi, : Petitioner : : v. : No. 610 C.D : Workers Compensation Appeal : Board (Consol PA Coal Company), : Respondent : O R D E R AND NOW, this 20 th day of August, 2013, the order of the Workers Compensation Appeal Board, dated March 13, 2013, at No. A , is affirmed. DAN PELLEGRINI, President Judge