IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kelly Gooden, :

Petitioner :

 :

v. : No. 851 C.D. 2021

 : Submitted: January 28, 2022

School District of Philadelphia :

(Workers’ Compensation Appeal :

Board), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: April 29, 2022

Kelly Gooden (Claimant) petitions for review of the July 14, 2021 Order of 

the Workers’ Compensation Appeal Board (Board), affirming a Workers’ 

Compensation Judge’s (WCJ) Decision that granted a Modification Petition filed by 

School District of Philadelphia (Employer). The WCJ and Board found Claimant’s 

benefits should be modified from temporary total disability to temporary partial 

disability based upon an impairment rating evaluation (IRE) performed by Brian 

Walsh, D.O., using the 6th edition of the American Medical Association’s Guides to 

the Evaluation of Permanent Impairment (Guides). The issue before this Court is 

whether it was an error of law to grant the Modification Petition when Section 
2

306(a.3) of the Workers’ Compensation Act (Act)1requires that IREs be performed

pursuant to the “6th edition (second printing April 2009)” of the Guides and there 

was no evidence as to which 6th edition was utilized. 77 P.S. § 511.3 (emphasis 

added).2 Because the plain language of the Act specifies the “6th edition (second 

printing April 2009)” of the Guides be utilized, we are constrained to vacate the 

Board’s Order and remand with instructions for the Board to further remand to the 

WCJ for evidence as to which version of the 6th edition of the Guides was used by 

Dr. Walsh. 

The pertinent facts are not in dispute. On March 21, 2005, Claimant suffered 

a work-related injury accepted as a posterior tibial injury on the right. Claimant 

received temporary total disability benefits beginning April 22, 2005. Employer 

twice tried to terminate Claimant’s benefits, but a WCJ denied both attempts. On 

July 30, 2019, Claimant underwent an IRE performed by Dr. Walsh. Dr. Walsh is 

certified to perform IREs and conducts 10 to 15 IREs annually. Dr. Walsh opined 

that Claimant reached maximum medical improvement (MMI), which he explained 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.3. Section 306(a.3) was added by 

Section 1 of the Act of October 24, 2018, P.L. 714, No. 111 (Act 111). 

2 Before the Board, Claimant also challenged whether it was error to grant the Modification 

Petition because Claimant did not receive 104 weeks of temporary total disability benefits 

subsequent to the enactment of Act 111, such as to trigger Employer’s right to an IRE. The Board 

rejected Claimant’s argument. Although Claimant included a footnote in her brief to this Court

questioning the constitutionality of crediting an employer with benefits received before Act 111’s 

enactment, (Claimant’s Brief at 16 n.1), Claimant did not raise that issue in her Petition for Review. 

Although Rule 1513(d)(5) of the Pennsylvania Rules of Appellate Procedure provides that “the 

omission of an issue from the statement shall not be the basis for a finding of waiver if the court 

is able to address the issued based on the certified record,” Pa.R.A.P. 1513(d)(5), Claimant also 

did not develop the argument in Claimant’s brief beyond the two-sentence footnote. Accordingly, 

to the extent Claimant was seeking to raise the constitutionality of the credit provisions found in 

Act 111, the issue has been waived. See Beaver Valley Slag, Inc. v. Marchionda (Workers’ Comp. 

Appeal Bd.), 247 A.3d 1212, 1221 (Pa. Cmwlth. 2021) (“[A]rguments not fully developed [in a 

party’s brief] will be deemed waived.”). 
3

means, per the Guides, “without any significant intervention within the next year, 

there would not be a significant change in the patient’s condition.” (WCJ Decision, 

Finding of Fact (FOF) ¶ 5.g.)3 Dr. Walsh also opined that Claimant’s tarsal tunnel 

syndrome/tibial nerve injury resulted in a whole person impairment (WPI) of four 

percent and Claimant’s posterior tibial tendon tear resulted in a WPI of five percent, 

for a combined WPI of nine percent. Dr. Walsh testified he “use[d] the [6]th

[e]dition of the . . . Guides” in making his determination. (Certified Record (C.R.) 

Item 15, 1/22/20 Deposition (Dep.) of Dr. Walsh at 25; see also FOF ¶ 5.h (finding 

Dr. Walsh testified he “us[ed] the 6th [e]dition of the [] Guides”).) Dr. Walsh’s 

report, appended to his deposition, also reflects “the Guides. . . , 6th [e]dition” was 

used. (Exhibit (Ex.) D-Walsh-2 at 4.) 

Based upon the IRE, Employer filed the Modification Petition on October 2, 

2019, alleging “Claimant underwent an IRE with Dr. [] Walsh . . . . Dr. Walsh found 

Claimant to be at MMI. Under the Guides . . . , 6th [e]dition, Dr. Walsh found a . . 

. []WPI[] of [nine percent.] Based on Dr. Walsh’s findings, Claimant’s benefits 

should be modified from total to partial immediately.” (C.R. Item 2.) Following 

hearings, at which the parties presented evidence, the WCJ issued a Decision on 

October 23, 2020, granting Employer’s Modification Petition. The WCJ found Dr. 

Walsh’s testimony “credible and persuasive,” as well as “uncontroverted.” (FOF 

¶ 8.) 

Relevant to the issue before this Court, the WCJ rejected Claimant’s argument 

that the plain language of Section 306(a.3) requires the “6th edition (second printing 

April 2009)” of the Guides to be used and that Dr. Walsh did not specify which 

version of the 6th edition he used. (Id. ¶ 10.) Specifically, the WCJ found 

3 The WCJ’s Decision can be found at Certified Record (C.R.) Item 4.
4

Claimant’s argument not to be persuasive because “Claimant had an opportunity to 

cross-examine Dr. Walsh regarding this issue and this is a minor omission that does 

not warrant the IRE being found defective.” (Id.) Accordingly, the WCJ granted 

the Modification Petition, modifying Claimant’s benefits from temporary total 

disability to temporary partial disability as of July 30, 2019, the date of the IRE. 

Claimant timely appealed to the Board, which affirmed the WCJ’s Decision. 

With respect to the issue of which edition of the Guides was used, the Board held 

that “[w]hile [Dr. Walsh] did not specify ‘second printing, April 2009,’ Dr. Walsh 

clearly testified as to his [] certification [to perform IREs] and that he performed the 

IRE in July 2019 pursuant to the [6th] edition of the [] Guides.” (Board Opinion at 

5.) Because Employer obtained an IRE that complied with Section 306(a.3) of the 

Act, the Board concluded Employer was entitled to change Claimant’s disability

status. 

Claimant filed a Petition for Review with this Court,4 arguing the WCJ and 

Board erred in not adhering to the plain language of Section 306(a.3) of the Act. 

Because the record is devoid of any evidence as to which version of the 6th edition 

of the Guides was used by Dr. Walsh, Claimant argues Employer did not meet its 

burden of proving it was entitled to modification of Claimant’s benefits. To the 

extent the WCJ found Claimant should have cross-examined Dr. Walsh about which 

version of the 6th edition of the Guides he used, Claimant asserts this improperly 

“shifted the responsibility to [Claimant] to perfect [Employer]’s evidence.” 

(Claimant’s Brief (Br.) at 14.) Claimant also disputes the WCJ’s characterization of 

4 Our review “is limited to determining whether constitutional rights have been violated, 

[whether] an error of law has been committed, and whether necessary findings of fact are supported 

by substantial evidence.” Universal Am-Can, Ltd. v. Workers’ Comp. Appeal Bd. (Minteer), 762 

A.2d 328, 331 n.2 (Pa. 2000). 
5

the omission as “minor,” “because it is very clearly and unambiguously required”

by Section 306(a.3). (Id. at 16.) Accordingly, Claimant asks the Court to reverse 

the Board’s Order.

Employer responds that the WCJ issued a reasoned decision, which was 

supported by substantial evidence. Employer calls Claimant’s argument that Dr. 

Walsh failed to identify the version of the Guides that he used as the second printing 

of the 6th edition as “specious, at best.” (Employer’s Br. at 8.) It argues the IRE 

that Dr. Walsh performed satisfied the requirements of Section 306(a.3). Employer 

also states that “[t]he second printing of the 6th [e]dition was issued in April 2009[, 

and t]he instant IRE [] was conducted well after that date.” (Id.) Furthermore, 

Employer argues that Claimant did not raise any objections that would have 

preserved this issue. As a result, it asks the Court to affirm the Board’s Order. 

Prior to the enactment of Section 306(a.3), IREs were governed by former 

Section 306(a.2) of the Act,

5

formerly 77 P.S. § 511.2, which was declared 

unconstitutional in Protz v. Workers’ Compensation Appeal Board (Derry Area 

School District), 161 A.3d 827 (Pa. 2017). In Protz, the Supreme Court reasoned 

that language in the former section, which provided for IREs to be performed 

“pursuant to the most recent edition of the [Guides],” formerly 77 P.S. § 511.2(1), 

was an unconstitutional delegation of legislative authority in violation of article II, 

section 1 of the Pennsylvania Constitution.6 Protz, 161 A.3d at 838. 

Following the invalidation of the former IRE provision, the General Assembly 

enacted the new IRE provision found in Section 306(a.3). While Section 306(a.3) 

5 Former Section 306(a.2) was added by Section 4 of the Act of June 24, 1996, P.L. 350,

formerly 77 P.S. § 511.2, and repealed by Act 111.

6 Article II, section 1 of the Pennsylvania Constitution provides: “The legislative power of 

this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a 

House of Representatives.” PA. CONST. art. II, § 1.
6

is largely identical to its predecessor provision, one significant distinction is that it 

specifies exactly which edition of the Guides should be utilized for IREs: the “6th

edition (second printing April 2009).”7 77 P.S. § 511.3. Here, the evidence merely 

establishes the 6th edition of the Guides was used without reference to which version 

of the 6th edition. While the WCJ called this a “minor omission,” given the plain 

language of Section 306(a.3), we cannot agree. 

Section 1921(a) of the Statutory Construction Act of 1972 provides that “[t]he 

object of all interpretation and construction of statutes is to ascertain and effectuate 

the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). “The clearest 

indication of legislative intent is generally the plain language of a statute.” Snizaski 

v. Workers’ Comp. Appeal Bd. (Rox Coal Co.), 891 A.2d 1267, 1276 (Pa. 2006). 

“When the words of a statute are clear and free from all ambiguity, the letter of it is 

not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). 

After the former IRE provision was struck down as an unconstitutional delegation 

of legislative authority, the General Assembly enacted Section 306(a.3), which 

specifies the “second printing April 2009” version of the “6th edition (second 

printing April 2009)” of the Guides must be used in IREs performed under the new 

law. 77 P.S. § 511.3. Thus, to comply with the new IRE provision, the IRE must 

be performed pursuant to the “6th edition (second printing April 2009)” of the 

Guides, which is the version the General Assembly specifically selected.

Here, the only evidence of record is Dr. Walsh’s testimony and report that 

shows the 6th edition was used. Because there is no evidence that the “second 

printing April 2009” version was used by Dr. Walsh, we must vacate the Board’s 

7 Section 306(a.3) also differs from former Section 306(a.2) by reducing the threshold 

impairment rating at which a claimant is presumed to be totally disabled to 35% or greater, down 

from 50%. Compare 77 P.S. § 511.3(2), with former 77 P.S. § 511.2(2). 
7

Order and remand this matter for further evidence as to which version of the 6th

edition of the Guides was utilized by Dr. Walsh. To the extent Employer suggests 

that this Court should infer that because the IRE was performed “well after” April 

2009 when the second printing of the 6th edition was issued, we decline to make 

such an inference. 

Nor does the Court accept the WCJ’s reasoning that Claimant could and

should have cross-examined Dr. Walsh about which specific version of the Guides

he used. We agree with Claimant that requiring Claimant to question Employer’s 

witness about which version of the Guides were used would have improperly shifted 

the burden to Claimant. It is well established in workers’ compensation law that an 

employer seeking to modify a claimant’s disability status from total to partial 

disability bears the burden. Westmoreland Reg’l Hosp. v. Workers’ Comp. Appeal 

Bd. (Pickford), 29 A.3d 120, 127 n.10 (Pa. Cmwlth. 2011). Employer also vaguely 

references the WCJ Rules8for the proposition that Claimant did not preserve any 

objections regarding this issue, (Employer’s Br. at 9), but as the use of the second 

printing April 2009 version of the 6th edition of the Guides was an essential element 

of Employer’s case, we cannot discern why Claimant had any obligation to object

on the grounds that Dr. Walsh did not identify which version of the 6th edition of 

the Guides was utilized. 

8 Presumably, Employer is referring to the Special Rules of Administrative Practice and 

Procedure Before Workers’ Compensation Judges, which are found in Title 34, Chapter 131 of the 

Department of Labor and Industry’s regulations, 34 Pa. Code §§ 131.1-131.204.
8

Accordingly, in the absence of evidence that the 6th edition (second printing 

April 2009) was utilized by Dr. Walsh, we vacate the Board’s Order. We remand 

this matter with direction for the Board to further remand to the WCJ for evidence 

as to which version of the 6th Edition of the Guides was used by Dr. Walsh.

__________________________________________

RENÉE COHN JUBELIRER, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kelly Gooden, :

Petitioner :

 :

v. : No. 851 C.D. 2021

 : 

School District of Philadelphia :

(Workers’ Compensation Appeal :

Board), :

Respondent :

O R D E R

NOW, April 29, 2022, the Order of the Workers’ Compensation Appeal 

Board, dated July 14, 2021, is VACATED, and this matter is REMANDED for 

further proceedings consistent with the foregoing opinion. 

Jurisdiction relinquished. 

__________________________________________

RENÉE COHN JUBELIRER, President Judge