Verizon Pennsylvania Inc. v. Workers' Compensation Appeal Board
116 A.3d 1157
| Pa. Commw. Ct. | 2015Background
- Claimant (Richard Mills) injured his lumbar spine at work on November 27, 2006; parties executed a 2007 Agreement listing lumbar HNP L5-S1 and degenerative disc disease.
- A 2011 WCJ decision amended the Agreement to add post-laminectomy syndrome, left foot drop, radiculopathy, chronic pain, right knee/hip pain, and major depression; WCJ previously denied Employer’s first modification petition for lack of MMI evidence.
- Employer sought modification based on an IRE by Dr. Francis Carlin (Oct. 20, 2011) finding MMI and a 44% whole-body impairment under the AMA Guides (6th ed.).
- Claimant rebutted with Dr. Lance Yarus, who performed an IRE and assigned a 56% whole-body impairment, separately rating the adjudicated left foot drop (15%) and a higher knee rating.
- WCJ credited Dr. Yarus over Dr. Carlin (citing Yarus’s greater IRE experience, superior qualifications, and his separate rating for the adjudicated foot drop) and found Claimant’s whole-body impairment 56% as of Oct. 20, 2011.
- Because the impairment exceeded 50%, WCJ denied Employer’s modification petition to reduce total disability; the Board affirmed and this Court affirmed the Board.
Issues
| Issue | Plaintiff's Argument (Claimant) | Defendant's Argument (Employer) | Held |
|---|---|---|---|
| Whether the WCJ erred in crediting claimant’s IRE over employer’s IRE | Yarus’s IRE properly applied AMA Guides; separately rated adjudicated foot drop; more persuasive and qualified | Carlin considered foot drop and properly subsumed it into the lumbar rating under AMA Guides; WCJ misread Carlin and failed to explain crediting Yarus | WCJ permissibly credited Yarus based on experience, qualifications, and competent explanation; finding supported by substantial evidence |
| Whether Dr. Carlin failed to address the adjudicated left foot drop | N/A (Claimant attacked Carlin’s methodology via Yarus) | WCJ wrongly concluded Carlin ignored foot drop; Carlin did consider it and chose not to rate it separately | WCJ did not say Carlin was unaware of the foot drop—he found Carlin’s decision not to separately rate it unpersuasive; appellate court upheld that distinction |
| Whether the WCJ’s decision satisfied §422(a) (reasoned decision requirement) | WCJ provided objective bases (experience, qualifications, consideration of adjudicated diagnoses) | WCJ failed to explain why Yarus’s separate foot-drop rating was appropriate under the AMA Guides | Court held WCJ articulated objective bases (experience, credentials, Yarus’s detailed methodology) sufficient for §422(a) and meaningful appellate review |
| Whether the IRE can be rebutted by a later IRE or evidence showing >50% impairment | IRE is evidence that may be rebutted by claimant’s expert showing errors or alternative application of AMA Guides | Employer argued later evaluation timing undermined Yarus’s knee rating | Court held rebuttal IRE and expert testimony may challenge IRE; Employer waived argument about timing and both experts agreed on knee diagnosis, so WCJ’s reliance on Yarus was proper |
Key Cases Cited
- Williams v. Workers’ Compensation Appeal Board (USX Corp.-Fairless Works), 862 A.2d 137 (discusses WCJ’s authority over witness credibility)
- Diehl v. Workers’ Compensation Appeal Board (I.A. Construction), 5 A.3d 230 (IRE is evidence; weight determined by WCJ; claimant may rebut IRE)
- Westmoreland Regional Hospital v. Workers’ Compensation Appeal Board (Pickford), 29 A.3d 120 (claimant’s expert may pinpoint IRE errors in application of AMA Guides)
- Department of Public Welfare v. Workers’ Compensation Appeal Board (Slessler), 103 A.3d 397 (WCJ must cite competent evidence when finding an IRE unreliable)
- Daniels v. Workers’ Compensation Appeal Board (Tristate Transport), 828 A.2d 1043 (WCJ may base credibility on expert qualifications; satisfies §422(a) if reasons articulated)