IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Susan Riley, :

Petitioner :

: v. : No. 238 C.D. 2016
: SUBMITTED: September 9, 2016 Workers' Compensation Appeal : Board (Commonwealth of : Pennsylvania), :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE HEARTHWAY FILED: December 8, 2016

Susan Riley (Claimant) petitions this Court for review of a Workers’ Compensation Appeal Board (Board) order affirming the decision of a Workers’ Compensation Judge (WCJ) denying Claimant’s p etition s to review compensation
b enefits under the Workers’ Compe nsation Act (Act). 1 Claimant also seeks review
of the Board’s denial of her motion to vacate her 2003 Independent Rating Evaluation (IRE). We affirm.

On August 7, 2000, Claimant suffered work

- related injuries after being assaulted by a patient at the he althcare facility where she was employed.

1 A ct of June 2, 1915, P.L. 736, as amended , 77 P.S. §§ 1

- 1041.4, 2501

- 2708.2

She received compensation benefits as a result of her injuries, which were listed in an August 15, 2002 Notice of Compensation Payable (NCP) as a contusion/herniation and fractures in her nose, face, head, and neck. (Reproduced Record (R.R.) at 3a

. ) On A pril 28, 2003, Claimant underwent an IRE by Dr. Barry
Schnall , M.D

. Using the Fifth Edition of the American Medical Association ( AMA ) Guides, Dr. Schnall assigned Claimant a 21 percent impairment rating, and
the Department of Labor and Industry Bureau of Workers’ Compensation sent Claimant a Notice of Change of Workers’ Compensation Dis ability Status (Notice ) on May 5, 2003. (R.R. at 9

- 10a

. ) Subsequently, Claimant received partial disability benefits for 500 weeks

.

On Aug ust 28, 2012, Claimant filed a petition for r eview seeking to amend her NCP to include additional injuries, including injuries to Claimant’s
shoulders. (R.R. at 19

- 21a

. ) On the sam e day, she filed an additional petition, alleging that Dr. Schnall had failed to consider the full extent of Claimant’s injuries. (R.R. at 22

- 24a

. )

Several hearings were held before a WCJ, where Claimant presented testimony from her treating physician, Dr. Bruce Menkowitz, about her injuries and treatment following the assault. Claimant underwent a n independent medical evaluation (IME) on December 17, 2012 with Dr. Richard Schmidt

. Following the
IM E, Dr. Schmidt testified before the WCJ that Claimant’s shoulder injuries were
not work

- related

. On August 8, 2014, the WCJ issued a decision denying bo th of Claimant’s petitions, finding that Dr. Schmidt ’s testimony was more credible than
Dr. Menkowitz ’s testimony and that Claimant had failed to establish that the NCP3

was incorrect, that she sustained work injuries other than those listed in the NCP,
and t hat she had a work

- related impairment rating equal to or greater than 50%

. (R.R. at 25a

. ) On August 26, 2014, Claimant appealed to the Board, arguing that the WCJ’s conclusions of law were in error and that the WCJ’s findings of fact were not supported b y substantial evidence. On October 15, 2015, while the appeal was pending, Claimant filed with the Board a motion to vacate t he 2003 IRE in light of our decision in Protz v. Workers’ Compensation Appeal Board (Derry Area School District) , 124 A.3d 406 (Pa . Cmwlth. 2015) , appeal granted by 133 A.3d 733 (Pa. 2016). (R.R. at 39a

. )

On January 22, 2016, the Board adopted the WCJ’s findings of fact
and conclusions of law and affirmed the WCJ’s decision , denying Claimant’s petitions for review and her motion to vacate

. (R.R. at 41

- 55a

. ) The Board found that the factual findings of the WCJ were supported by substantial evidence and the
WCJ’s credibility determination was reasoned. Additionally, the Board found that
under Johnson v. Workers’ Compensati on Appeal Board (Sealy Components Group) , 982 A.2d 1253 (Pa. Cmwlth. 2009), Claimant could no longer challenge
the 2003 IRE determination because she had failed to do so within the necessary
60

- day period set forth in s ection 3 06 (a.2) (2) of the Act and did not present evidence of a new im

pairment rating of more than 50 percent

. 2 Claimant also

2 Act of June 2, 2015, P.L 736, as amended , 77 P.S. §511.2, added by the Act of June 24, 1996, P.L. 350. Section 306(a.2)(2) provides as foll ows:

If such determination results in an impairment rating that meets a threshold impairment rating that is equal to or greater than fifty per centum impairment under the most recent edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment,” the (Footnote continued on next page...)4

failed to challenge the constitutionality of the IRE until her October 15, 2015
motion to vacate

. As a result, the Board found that Claimant was precluded from raising those issues before the Board. (R.R. at 53

- 54a

. )

Claimant now appeals to this court

. 3 Claimant argues (1) that the WCJ’s decision to reject Dr. Menkowitz’s testimony regarding Claimant’s shoulders was unsupported by accurate, objective reasonin g ; and (2) that the Board

er red when it determined that the physician properly evaluated Claimant’s level of impairment using the Fifth Edition of the AMA Guides in light of this c ourt’s
decision in Protz

.

First, we address whether the WCJ erred in reject ing Dr. Menkowitz’s opinion that Claimant suffered bilateral shoulder injuries in addition to her accepted cervical injury. In its opinion, the Board agreed with the WCJ that Dr. Menkowitz’s testimony did not satisfy Claimant’s burden of establishi ng the
existence o f additional compensable injurie s. ( R.R. at 51

- 52a .) In support of this

(continued...)

employe shall be presumed to be totally disabled and shall continue to receive total disability compensation benefits under clause (a). If such determination results in an impairment rating less than fifty per centum impairment under the most recent edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment,” the employe shall then receive partial disability benefits under clause (b): Provide d, however, t hat no reduction shall be made until sixt y days' notice of modification is given. 3 Our review is limited to determining whether the Board’s Order violated a claimant’s constitutional rights, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.5

determination, the WCJ pointed to evidence of arthritis in Claimant’s shoulders that predated the work injury, the lack of documentation of a shoulder injury in
Cla imant’s original hospital record, and magnetic resonance imaging undertaken in the years following the work

- related injury. (R.R. at 33a

. ) In addition, the WCJ found the testimony of Dr. Schmidt to be more credible than the testimony of Dr.
Menkowitz bas ed on the WCJ’s review of the full evidentiary record. As a result, the WCJ determined that Claimant’s shoulder injuries were not work

- related and that the NCP was not materially incorrect. ( R.R. at 34a

. )

We find that the WCJ’s determination was suppor ted by substantial
evidence. “The WCJ is the ultimate finder of fact and the exclusive arbiter of credibility and evidentiary weight.” Daniels v. Workers ’ Compensation Appeal Board (Tristate Transport) , 828 A.2d 1043, 1052 (Pa. 2003). Section 422 of the
Act requires that a WCJ make a “reasoned” decision b ased upon the evidence in the record. 77 P.S. § 834. A decision is reasoned under the Act if the WCJ articulates reasons for accepting or rejecting the evidence in the record. Daniels , 828 A.2d at 1043

. C laimant has th e burden of establish ing the existence of additional compensable injuries that would give rise to a modification. Cinram Manufacturing, Inc. v. Workers’ Compensation Appeal Board (Hill) , 975 A.2d
577 , 582 (Pa. 2009). “Appellate review [of WCJ conclusions] must focus on whether there is rational support in the record, when reviewed as a whole, for the agency action.” Republic Steel Corp. v. Workmen’s Compensation Appeal Board (Shinsky) , 421 A.2d 1060, 1062

- 63 (Pa. 1980 ). Here, we find rational support i n the record for the WCJ’s conclusions. The WCJ, in his fact

- finding capacity, chose to accept the testimony of Dr. Schmidt over the testimony of Dr. Menkowitz6

after fully analyzing the record. Accordingly , we reject C laimant’s argument that
the WCJ erred in failing to expand Claimant’s work injury

.

Next, we agree with the Board that our September 1 8, 2015 en banc opinion in Protz does not invalidate Claimant’s 2003 IRE rating

. 4 In Protz , t he

c laimant, a fter undergoing a n IRE, was issued a 10% impairment rating under the
Sixth Edition of the AMA Guides and her employer filed a modification petition seeking to convert her benefi ts from total to partial. Id. Following the grant of the modification petition by the WCJ, the claimant in Protz appealed to the Board, asserting that s ection 306 (a.2) (2) of the Act, 77 P.S. § 511.2(2), which specifies that the “most recent edition” of the AMA Guides would be used in preparing impairment evaluations, was an unconstituti onal delegation of legislative authority under Article II, Section 1 , of the Pennsylvania Constitution

. Although the statute was passed when the Fourth Edition of the AMA Guides w as the most recent, the
Protz claima nt was evaluated under the later Sixth Edition

. The c laimant argued
that the statute as constructed gave the AMA, not the legislature, the authority to establish criteria under which a claimant’s benefits are adjusted. Protz , 124 A.3d

at 410

- 11. This C ourt found that the statute “proa ctively approved versions of the AMA Guides beyond the Fourth Edition without review” in violation of Article II,
Section 1 , of the Pennsylvania Constitution and vacated the Board’s decision with instructions to remand to the WCJ to apply the Fourth Editio n of the AMA Guides.
Id. at 416.

4 T he Pennsylvania Supreme Court granted a Petition for Allowance of Appeal of t his Court’s decision in Protz on March 22, 2016

. Protz v. Workers’ Compensation Appeal Board (Derry Area School District) , 133 A.3d 733 (Pa. 2016).7 This case is not controlled by our holding in Protz

. In this case, Claimant was evaluated by Dr. Schnall using the Fifth Edition of the AMA Guides
rather than the Fourth Edition as required under our rule in Protz

. In Protz , however, the claimant appe aled the IRE within 60 days of the Notice

. In this case, it took Claimant nearly ten years after Notice to challenge the use of the Fifth
Edition of the AMA Guides in the 2003 IRE

. Claimants have 60 days under

s ection 306 (a.2) (2) of the Act to appeal a reduction in disability benefits following
a Notice prior to the reduction becoming final. 77 P.S. § 511.2 (2) ; see Barrett v. Workers’ Compensation Appeal Board (Sunoco, Inc.), 987 A.2d 1280, 1288 (Pa. Cmwlth. 2010)

. Here, Claimant did not appeal within that time period , thereby waiving the right to challenge the 2003 IRE determination

. 5

In Johnson
, w e addressed waiver of an IRE challenge when the
determination went unc ontested past the initial 60 days

. In Johnson , t he claimant filed a petition challenging the IRE on the basis of the physician’s qualifications more than 60 days followi ng receipt of a Notice

. Johnson , 982 A.2d at 1254. After a hearing, the WCJ dismissed the claimant’s petition, determining that the physician was qualified

. Id. at 1255

- 56. The Board affirmed the WCJ’s
determination. Id. at 1256. T he claimant had asserted that her constitutional due

process rights were violated. Id. In that case, w e found that because the claimant
did not file he r petition to review the IRE until nearly one year after she w as

5 We note that claimants may also challenge an IRE during the 500 week statutory benefit period by showing a revised impairment rating of equal or greater than 50 percent. Section 306(a.2)(4) of the Act, 77 P.S. § 511.2(4)

. In this case, Claimant failed to mount such a challenge, and did not present any evidence of a new impairment rating of at least 50 percent

.8

provided with the Notice , she waived her right to appeal pursuant to s ection 306(a.2) (2) of the Act, 77 P.S. § 511.2

. Id. at 1260.

Prior to Pro tz i n Wingrove v. Workers’ Compensation Appeal Board (Allegheny Energy) , 83 A.3d 270 , 276 (Pa. Cmwlth. 2014), we determined that a
claimant was barred from challenging an IRE made using a subsequent edition of the AMA Guides when he failed to challenge his IRE within the statutory period
and did not present evidence that his impairment was equal to or greater than 50 percent. And, i n Ruse v. Workers’ Compensation Appeal Board (Valley Medica l Facilities Sewickley) ( Pa. Cmwlth. No. 952 C.D. 2014, filed Jan. 13, 2016) , we remanded an IRE determinat ion made using the Fifth and Sixth Editions of the AMA Guides when the claimant preserved the right to appeal the validity of the IRE by challenging it within the sixty day period. In this case, Claimant did not preserve that right because Claimant did no t challenge within the 60

- day period and has not put forth evidence of impairment equal to or exceeding fifty percent

.

Section 306 (a.2)(2) of the Act provide s claimants with 60 days to challenge determinations made in an IRE. 77 P.S. § 511.2 (2)

. In Joh nson , we determined that claimant’s failure to challenge within the 60

- day time period wa s critical

. Johnson , 982 A.2d at 1257

- 58. Here, Claimant underwent an IRE in 2003, and that determination went unchallenged by Claimant until we handed
down our decision in Protz

. But Protz does not give Claimant a second chance to appeal her 2003 IRE

. Claimant failed to raise her claim within the par ameters of
section 306 (a.2)(2) of the Act, 77 P.S. § 511.2(2)

.9 Accordingly , we affirm the Board

.

__________________________________ JULIA K . HEARTHWAY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Susan Riley, :

Petitioner :

: v. : No. 238 C.D. 2016
: Workers' Compensation Appeal : Board (Commonwealth of : Pennsylvania), :

Respondent :

O R D E R

AND NOW, this 8 th day of December, 2016, the order of the Workers’ Compensation Appeal Board is affirmed

.

__________________________________ JULIA K . HEARTHWAY, Judge