Verizon Pennsylvania Inc. v. Workers' Compensation Appeal Board
87 A.3d 942
Pa. Commw. Ct.2014Background
- Claimant (service technician) suffered neck/back strain in 2008 and received total disability benefits.
- Employer requested an Impairment Rating Evaluation (IRE); Bureau designated Dr. Elena Antonelli, who performed the IRE in January 2011 and assigned a 16% whole person impairment.
- Employer filed a Modification Petition to reduce Claimant’s status from total to partial disability based on Dr. Antonelli’s IRE.
- Dr. Antonelli was licensed and board-certified in Occupational Medicine and previously treated patients full-time, but at the time of the IRE she performed only IMEs/IREs, FAA pilot physicals, utilization reviews and peer reviews and testified she did not treat or manage patients on an ongoing basis.
- WCJ denied the Modification Petition and the Workers’ Compensation Appeal Board affirmed, holding Dr. Antonelli did not meet Section 306(a.2)(1)’s requirement that IRE physicians be “active in clinical practice for at least twenty hours per week.” The court affirmed.
Issues
| Issue | Employer's Argument | Claimant's Argument | Held |
|---|---|---|---|
| Whether "active in clinical practice" requires patient care/treatment | Term should not require patient-treatment connection; aims only to ensure currency of medical knowledge | "Clinical practice" requires involvement in patient care/treatment | Court held "clinical practice" requires provision of care/treatment of patients (per Bureau reg. and medical definitions) |
| Whether periodic occupational/administrative work (IMEs, IREs, FAA physicals, utilization reviews) qualifies as "clinical practice" | Such evaluations and certifications should satisfy requirement | These activities are not treatment/management and thus are non-clinical | Court held such activities alone do not satisfy the statutory "clinical practice" requirement |
| Whether past clinical practice (ceased 10 months earlier) satisfies the 20-hour-per-week active requirement | Prior clinical practice suffices even if ceased recently | Must be active at time of IRE (20 hrs/week) | Court held past practice does not meet the statutory requirement; practice must be active at time of IRE |
| Whether the Bureau’s selection of Dr. Antonelli excuses invalid IRE | Bureau selection absolves Employer of consequences | Invalid IRE cannot support modification regardless who the Bureau designated | Court noted Employer may seek a new IRE nunc pro tunc but affirmed denial of modification; invalid IRE cannot change status |
Key Cases Cited
- Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 888 A.2d 758 (Pa.) (IRE requirements are mandatory and an IRE reducing status is automatic if timely and valid)
- Diehl v. Workers’ Compensation Appeal Board (I.A. Construction), 5 A.3d 230 (Pa.) (statutory IRE requirements apply to IREs requested under other subsections)
- Stanish v. Workers’ Compensation Appeal Board (James J. Anderson Construction Co.), 11 A.3d 569 (Pa.Cmwlth.) (invalid IRE cannot support modification)
- Combine v. Workers’ Compensation Appeal Board (National Fuel Gas Distribution Corp.), 954 A.2d 776 (Pa.Cmwlth.) (IRE not meeting statutory requirements cannot support change in disability status)
- Bayada Nurses, Inc. v. Department of Labor and Industry, 8 A.3d 866 (Pa.) (agency regulation entitled to deference if reasonable and consistent with statute)