What the panel treated as outcome-determinative, and which side it favoured.
Dr. Holmes provided a credible rationale for reducing WPI from 13% to 11% based on examination at MMI.
Favours Defendant prevailed
This supported the WCJ's finding that Dr. Holmes's report constituted substantial medical evidence.
From the decision · page 2I relied on the opinion of the Qualified Medical Examiner, Dr. Jeffrey
Holmes, who reduced his assessment of Whole Person Impairment (WPI)
from 13% in a pre-Maximum Medical Improvement (MMI) report down to
11% when applicant was ultimately declared at MMI.
Applicant failed to cross-examine Dr. Holmes on range of motion testing at deposition.
Favours Defendant prevailed
This undermined applicant's argument about inadequate evaluation and supported the credibility of Dr. Holmes's report.
From the decision · page 3On re-direct examination, applicant testified that he had an epidural spinal
injection in 2019. He was asked to do bending by Dr. Holmes, but not in
May of 2024. (Minutes of Hearing and Summary of Evidence (MOH/SOE),
January 9, 2025 at pp. 5-7.)...
With respect to the allegation that Dr. Holmes arbitrarily reduced the level
of permanent impairment from 13% WPI (report of July 3, 2023) to
11%WPI (report of June 2, 2024), applicant leaves a crucial fact out of his
Petition, which is that Dr. Holmes stated in his intervening report of October
14, 2023 that applicant had not yet reached MMI status. At p. 5 of my
Opinion, I noted that Dr. Holmes provided a credible rationale for his
reduction of the WPI by 2%, based upon his examination of applicant at the
time of his last report....
Regarding the argument over the range of motion measurements, applicant
had the opportunity to cross-examine Dr. Holmes at his deposition on
August 20, 2024, but curiously chose not to do so, instead asking the doctor
only a few general questions about the reduction from 13% WPI to 11%
WPI with no mention of range of motion measurements. Moreover, the WPI
classification utilized by Dr. Holmes is pursuant to the DRE method of
impairment assessment, which is used to be used to measure permanent
impairment in the spine in the vast majority of cases. By contrast, the range
The record shows no denial of notice or opportunity to be heard regarding evidence and rebuttal at trial.
Favours Defendant prevailed
This supported the denial of applicant's claim that post-trial briefs should have been considered.
From the decision · page 7Here, the record does not show that applicant was not denied notice and an opportunity to
be heard with regard to the evidence defendant presented at trial or denied an opportunity to present
rebuttal evidence. In particular, as stated in the Report, the WCJ considered one trial brief for each
party and only permitted defendant to submit its brief after trial because it had not been served
with applicant's brief. Accordingly, we are unable to discern error in the WCJ's failure to consider
applicant's post-trial briefs.
The record fails to disclose grounds for misconduct by defendant's attorney.
Favours Defendant prevailed
This supported the rejection of applicant's claim of attorney misconduct affecting the F&A.
From the decision · page 7Lastly, we address applicant's contention that defendant's attorney engaged in misconduct.
Here, as stated in the Report, the record fails to disclose grounds to conclude that
defendant's attorney engaged in any misconduct. Accordingly, we are unable to discern merit to
the argument that the F&A resulted from defendant's attorney's misconduct.
Accordingly, we will deny the Petition for Reconsideration.