Yupa v. Prime Home Constr., et. al

Yupa v. Prime Home Constr., et. al., No. WC15-5886 (WCCA Aug. 15, 2016)

The employee in this matter appeals the compensation judge’s determination that he failed to prove he is not currently entitled to an additional 10% PPD for a permanent inner ear injury. The employee also appeals the judge’s determination that the employee was not permanently and totally disabled as of the date of hearing.

The employee was a roofer who sustained an admitted work injury on October 11, 2012 when he fell off a ladder and landed on his face and head. The employee suffered a traumatic brain injury and right temporal bone fracture/inner ear injury. Due to ongoing symptoms of dizziness the employee was diagnoses with Left posterior canal BPPV of canalithiasis nature.

On October 22, 2013 Dr. Haberman performed tympanoplasty surgery to repair the employee’s inner ear bones. The employee also attended physical therapy appointments in order to assist in treating the vertigo symptoms. He was evaluated by Dr. Randa on November 19, 2013. Dr. Randa assigned a 10% PPD rating based on residual memory impairment, however, deferred a permanency determination for the employee’s vestibulocochlear injury to ENT examiners. The employer and insurer accepted the Dr. Randa’s rating.

The employee was received an ENT evaluation by. Dr. Gapany on May 22, 2014 at the employer and insurer’s request. Dr. Gapany concluded the employee reached MMI for his inner ear injury and sustained permanent hearing loss in his right ear, and vertigo and balance issues to due to the work injury. Subsequently, Dr. Haberman recommended an additional surgery for the employee’s inner ear. On February 18, 2015, Dr. Lockman diagnoses the employee with a traumatic brain injury, providing work restrictions, and opined the employee was permanently and totally disables with an additional PPD rating of 10% for disequilibrium or vertigo.

The employee filed a Claim Petition seeking PTD benefits on July 3, 2014. The employer insurer denied the employee was permanently and totally disabled and alleged the employee did not meet the PPD threshold. The compensation judge found the employee failed to prove he presently sustained a 10% permanent partial disability, and that he was permanently and totally disabled from gainful employment.

The WCCA notes the standard of review on appeal is whether the compensation judge’s determination is supported by substantial evidence; findings of fact are to be upheld unless clearly erroneous. The compensation judge rejected Dr. Lockman’s PPD rating, noting he is not an ENT specialist and he provided no rationale for the rating. The WCCA emphasized that “the competency of a physician to provide an expert medical opinion depends upon the doctor’s scientific knowledge and practical experience with the issue which is the subject of the opinion offered.” Since Dr. Lockman managed the employee’s care since June 2013, he had records documenting the employee’s treatment through the ENT clinic and physical therapy and possessed an adequate foundation for an expert medical opinion. Additionally, he did not need to explain the underlying reasons for his opinion. However, due to the employee’s ongoing treatment and potential surgery, substantial evidence supports the compensation judge’s finding that the employee did not presently establish an additional 10% permanency rating for vertigo, but may do so in the future.

The WCCA affirmed the compensation judge’s denial of the employee’s claim for total disability benefits, since such claim is premature due to the employee failing to meet he 17% PPD minimum. However, the WCCA vacated the compensation judge’s finding that the employee failed to prove he is permanently and totally incapacitated from gainful employment and stated the employee may make a claim for PTD in the future if he does meet the PPD threshold.