IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Vincent Beasley, :

Petitioner :

:

v. : No. 634 C.D. 2016

: Submitted: November 10, 2016

Workers’ Compensation Appeal :

Board (Peco Energy Company), :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY

SENIOR JUDGE PELLEGRINI FILED: December 22, 2016

Vincent Beasley (Claimant) petitions for review of the order of the 

Workers’ Compensation Appeal Board (Board) reversing the Workers’ 

Compensation Judge’s (WCJ) denial of Peco Energy Company’s (Employer) 

petition to change Claimant’s disability status from total to partial pursuant to 

Section 306(a.2)(1) of the Pennsylvania Workers’ Compensation Act (Act).1

 

1 Act of June 2, 1915, 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)(1) states, in pertinent part:

When an employe has received total disability compensation 

pursuant to [the Workers’ Compensation Act] for a period of one 

hundred four weeks, unless otherwise agreed to, the employe shall 

be required to submit to a medical examination which shall be 

requested by the insurer within sixty days upon the expiration of 

the one hundred four weeks to determine the degree of impairment 

due to the compensable injury, if any. The degree of impairment 

(Footnote continued on next page...)
2

I.

A.

On April 3, 2009, Claimant sustained an injury while working for 

Employer as an energy technician. On April 23, 2009, Employer issued a Notice 

of Compensation Payable (NCP) accepting as compensable an injury described as a 

cervical “strain/sprain”

2

later amended to also include chronic neck pain syndrome 

due to aggravation of multi-level injuries at C5, C6 and C7 and radiculopathy at 

C5-6 and C6-7. The NCP states that Claimant began receiving total disability 

benefits on April 15, 2009, but that the first benefits check was not mailed until 

April 23, 2009, the notice date of the NCP.

 

(continued...)

shall be determined based upon an evaluation by a physician who 

is licensed in this Commonwealth, who is certified by an American 

Board of Medical Specialties approved board or its osteopathic 

equivalent and who is active in clinical practice for at least twenty 

hours per week, chosen by agreement of the parties, or as 

designated by the department, pursuant to the most recent edition 

of the American Medical Association “Guides to the Evaluation of 

Permanent Impairment.”

77 P.S. § 511.2(1). An Impairment Rating Evaluation (IRE) requested within 60 days after the 

claimant has received 104 weeks of total disability that results in an impairment rating of less 

than 50 percent operates to automatically reduce the claimant’s status to partial disability. 

Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 888 A.2d 758, 

765-68 (Pa. 2005). An IRE is considered void if it is premature – i.e., if the request is filed prior 

to the claimant receiving 104 weeks of benefit payments. See Dowhower v. Workers’ 

Compensation Appeal Board (Capco Contracting), 919 A.2d 913, 917 (Pa. 2007).

2 Reproduced Record (R.R.) at 4a.
3

On April 15, 2011, Employer filed a Request for Designation of a 

Physician to Perform an Impairment Rating Evaluation (IRE Request) with the 

Bureau of Workers’ Compensation’s (Bureau) Department of Labor and Industry 

(Department). Claimant objected to this designation contending that under Section 

306(a.2) of the Act, 77 P.S. § 511.2, the parties must try to reach an agreement on 

the IRE physician before an employer may file an IRE request with the 

Department. Claimant did not, however, make any objection that the IRE Request 

was untimely. The WCJ ordered Claimant to submit to a physical examination 

finding that Employer “met its burden of proving that it properly requested an 

[IRE] pursuant to Section 306(a.2)(1) by requesting the Bureau to designate an IRE 

physician.” (R.R. at 14a.)

Claimant then underwent an IRE by the designated physician who 

determined that Claimant had reached maximum medical improvement (MMI)3

with an impairment rating of two percent under the Sixth Edition of the American 

Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment

(Guides). However, because the designated physician passed away before a 

hearing could be held, the parties were informed that they needed to contact the 

 

3

In Combine v. Workers’ Compensation Appeal Board (National Fuel Gas Distribution 

Corp.), 954 A.2d 776 (Pa. Cmwlth. 2008), appeal denied, 967 A.2d 961 (Pa. 2009), this Court 

held that an IRE physician must first determine that a claimant has reached MMI before 

calculating an impairment rating. Id. at 780. As stated in Combine, “[t]he Guides instruct that 

an individual is at MMI when his condition has become static or stable and that while further 

deterioration or recovery may occur at some point in the future, one would not expect a change 

in condition at any time in the immediate future.” Id. at 781.
4

Department for “redesignation.” They then entered into a Stipulation of Facts 

providing, in pertinent part:

[1.] In order to preserve the “status quo” of the claim, 

counsel for claimant agreed that employer could request 

a new Impairment Rating Evaluation.

[2.] Both claimant and employer reserve all rights, duties, 

remedies and arguments available, as they may have 

pertained to the original IRE performed by [the original 

IRE physician.]

(R.R. at 35a, 36a.)

Employer then filed for the redesignation of an IRE physician

(Redesignation Request) and Claimant reasserted his previous objections to the 

Department’s designation of the original physician. Again, Claimant did not 

challenge the timeliness of the underlying IRE Request.

The Department then designated Dr. Daisy Rodriguez (Dr. Rodriguez)

who performed Claimant’s IRE on October 23, 2012, and concluded that Claimant 

had reached MMI with an impairment rating of 28 percent under the AMA Guides. 

On December 3, 2012, Employer filed a Notice of Change of Workers’ 

Compensation Disability Status (Notice of Change), informing Claimant of his 

impairment rating and his change of disability status from total to partial in 

accordance with Section 306(a.2)(1) of the Act, 77 P.S. § 511.2(1). Claimant then 

filed a Petition to Review Compensation Benefits (review petition) with the WCJ 
5

claiming that the IRE and Notice of Change was defective. Claimant’s review 

petition again did not challenge the timeliness of the underlying IRE Request.

On Claimant’s challenge to the IRE, Dr. Rodriguez testified that she is 

licensed to practice medicine in the Commonwealth of Pennsylvania, Board 

Certified in Internal Medicine and maintains at least 20 hours per week in clinical 

practice. Dr. Rodriguez testified that she attended a training course given by the 

American Board of Independent Medical Examiners, an approved agency for 

certification, on February 3, 2008, and January 13, 2013. The February 3, 2008 

training course was in Tampa, Florida, and took place before the AMA Guides was 

revised in August 2008. Despite the training course’s location and timing, Dr. 

Rodriguez believes the training course satisfied the Department requirements 

because they were included on her CV and provided to the Department when it 

designated her as Claimant’s IRE physician. Dr. Rodriguez explained that she 

used the most recent AMA Guides to evaluate Claimant, which she was trained to 

use at the February 2008 course.

The course in February of 2008, [was] given by . . . the 

[AMA Guides’] editors, as well as . . . another editor, 

[and] they brought to our attention the errors in the 

original division during that course. I was trained in the 

corrections and clarifications, not trained in the errors.

(R.R. at 132a.)

Dr. Rodriguez testified that Claimant had reached MMI with an 

impairment rating of 28 percent. She understood that Claimant’s applicable 
6

diagnoses were expanded by a subsequent decision by the WCJ, describing the 

work-related injuries as chronic neck pain syndrome due to aggravation of multilevel disc injuries at C5, C6 and C7 and radiculopathy at C5-6 and C6-7, as well as 

sprain and strain of the cervical spine. She used the Sixth Edition of the AMA 

Guides when conducting the IRE and explained both the definition of MMI and 

“reasonably presumed permanent” injuries. She stated that to reach MMI, an 

individual must not have experienced any improvement or deterioration in the 12 

months preceding the examination and/or be expected to do the same in the 12 

months following it.

Regarding Claimant reaching MMI, Dr. Rodriguez explained that she 

arrived at her determination by comparing Claimant’s medical records with her 

clinical findings during a personal examination and history of Claimant and

Claimant’s responses on two different in-take evaluation forms that she 

administered, and that her most recent medical records for Claimant dated back 12 

months prior to her examination of Claimant. She explained that she relied on 

Claimant’s answers and explanations at the examination and in the two evaluation 

forms to determine whether Claimant’s condition improved or deteriorated over 

the previous 12 months and whether Claimant underwent or scheduled any 

procedures for his injuries.

No other testimony was provided by either party in this matter and 

Claimant did not present any expert testimony of his own. Claimant also did not 

present any evidence or testimony indicating further deterioration or improvement 
7

of his injury. Claimant has not indicated that he underwent any medical

procedures in the year leading up to the IRE or in the year after it was performed.

B.

On August 25, 2014, the WCJ denied Employer’s Petition for 

Modification of Benefits because she found that Employer’s IRE Request was

premature because “Employer has presented neither evidence[] nor any agreement 

to establish the date [C]laimant received 104 weeks of total temporary disability 

benefits. It is therefore impossible to determine whether [E]mployer’s request for 

an IRE was timely, premature or late.” (R.R. at 162a.)

The WCJ also denied changing Claimant’s disability status because 

Dr. Rodriguez was “not able to competently, and/or credibly testify”

4

about 

Claimant reaching MMI because she failed to demonstrate that she fulfilled the 

training requirements set forth in 34 Pa. Code § 123.103(d) to be an approved IRE 

physician. She also found that the underlying IRE Request was defective because 

the Department’s designation was made prior to both parties making a good-faith 

effort to agree on an IRE physician. Employer appealed to the Board.

On April 19, 2016, the Board reversed the WCJ.5It held that the IRE 

Request was timely because “[t]he [Employer’s] NCP and the initial Request for 

 

4

(R.R. at 162a.)

5

Prior to the Board’s decision but after the WCJ’s decision, we decided Protz v. 

Workers’ Compensation Appeal Board (Derry Area School District), 124 A.3d 406, 416 (Pa. 

Cmwlth. 2015) (en banc), where we held that Section 306(a.2) of the Act was an unconstitutional 

delegation of legislative authority because the General Assembly “proactively approved versions 

(Footnote continued on next page...)
8

Designation of a Physician were made part of the record and provide ample 

evidence that [Employer’s] request was timely.” (R.R. at 182a.) The Board also 

determined that Dr. Rodriguez was competent to testify about Claimant’s MMI. 

Citing to our recent decision in Logue v. Workers’ Compensation Appeal Board

(Commonwealth), 119 A.3d 1116 (Pa. Cmwlth. 2015), the Board also determined

that Section 306(a.2)(1) of the Act6does not limit designation of an IRE physician 

to instances where the parties are unable to agree.

Before the Board, Claimant also contended under Protz v. Workers’ 

Compensation Appeal Board (Derry Area School District), 124 A.3d 406, 416 (Pa. 

Cmwlth. 2015), appeal granted, 133 A.3d 733 (Pa. 2016), a decision that was 

decided after the WCJ issued her decision, that Dr. Rodriguez’s testimony was 

incompetent because she used the Sixth Edition the AMA Guides. In Protz, we 

held that Section 306(a.2) of the Act, 77 P.S. § 511.2, was an unconstitutional 

delegation of legislative authority because it proactively approved versions of the 

AMA Guides beyond the Fourth Edition without review. The Board refused to 

address the issue because Claimant had not appealed the WCJ’s decision and had 

not lodged a challenge to the constitutionality of the enabling provision, noting that 

it “will only address the issues specifically raised by [Employer] on appeal.” (R.R. 

 

(continued...)

of the AMA Guides beyond the Fourth Edition without review.” Id. (emphasis in original). On 

March 22, 2016, the Pennsylvania Supreme Court granted review. Protz v. Workers’

Compensation Appeal Board (Derry Area School District), 133 A.3d 733 (Pa. 2016).

6

77 P.S. § 511.2(1).
9

at 212a.) Citing to Section 703 of the Administrative Agency Law, 2 Pa.C.S. § 

703 and Pa. R.A.P. 1551(a)(1), it stated that this issue of the validity of the statute 

could be raised for the first time on appeal to this court. Claimant then filed this 

petition for review.

II.

A.

On appeal,7 Claimant raises a number of issues that go to the validity 

of an impairment rating itself. First, Claimant contends that the Board erred in 

reversing the WCJ’s determination that Employer’s Notice of Change was void

because Employer failed to demonstrate that the IRE Request was timely.

8

Claimant does not, however, actually contend that the IRE Request was premature

nor does he provide the date that he “received” 104 weeks of benefit payments.

However, Employer established the timeliness of the IRE Request

because the dates contained in Employer’s IRE Request and NCP, when viewed 

together, establish a prima facie showing that the IRE Request was made 104 

weeks after the initial date that benefit payments began to accrue. Specifically, 

Employer’s NCP demonstrates that the initial date of benefit payments began on 

 

7 We review Board decisions to determine whether errors of law were made, whether 

constitutional rights were violated, and whether necessary findings of fact are supported by 

substantial evidence. Ward v. Workers’ Compensation Appeal Board (City of Philadelphia), 966 

A.2d 1159, 1162 n.4 (Pa. Cmwlth. 2009).

8 We are unable to find in the record where Claimant initially raised the issue of the 

timeliness of the IRE Request, but Employer does not allege that the issue was waived.
10

April 15, 2009, and Employer’s IRE Request was issued on April 15, 2011, which 

was two days after Claimant should have received his 104th week of payments. 

The burden then shifted to Claimant to demonstrate that he did not actually

“receive” the 104th week of benefits prior to the IRE Request. However, because 

Claimant only challenges the IRE Request’s timeliness by raising questions – as 

opposed to offering proof – about when he actually “received” the 104th week of 

benefit payments, we find that Claimant did not meet his burden. As the Board 

properly concluded, “[Employer’s] NCP and the initial Request for Designation of 

a Physician were made part of the record and provide ample evidence that 

Defendant’s request was timely.” (R.R. at 182a.)

B.

Claimant next contends that the Board improperly usurped the WCJ’s 

determination that Dr. Rodriguez was incompetent to testify regarding Claimant’s 

MMI when it equated the Bureau’s “designation” of Dr. Rodriguez to conduct an

IRE with its “approval” under 34 Pa. Code § 123.103(d). Pursuant to the Bureau’s 

regulations:

(d) In addition to the requirements of subsections (a) and 

(b), physicians designated by the Department to perform 

IREs shall meet training and certification requirements 

which may include, but are not limited to, one or more of 

the following:

(1) Required attendance at a Departmentally 

approved training course on the performance of 

evaluations under the AMA “Guides to the Evaluation of 

Permanent Impairment.”
11

(2) Certification upon passage of a Departmentally 

approved examination on the AMA “Guides to the 

Evaluation of Permanent Impairment.”

(3) Other requirements as approved by the 

Department.

34 Pa. Code § 123.103(d).

However, when the Department designated Dr. Rodriguez as the IRE 

physician, it determined that she had met all the requirements of the above 

regulation and was “approved” to conduct IRE examinations. Absent any evidence 

by Claimant regarding the impropriety of that approval, the Board did not err when 

determining that Dr. Rodriguez fulfilled the requirements set forth in 34 Pa. Code 

§123.103(d).9

C.

Claimant also contends that the Board improperly rejected the WCJ’s 

determination that Dr. Rodriguez was “not able to competently and/or credibly 

testify,” (R.R. at 162a), because she only had medical records that went back 12 

months rather than all records since his injury. However, Claimant has at no point 

challenged the WCJ’s determination that Dr. Rodriquez’s clinical findings are 

 

9 Claimant also contends that like Protz, where we held there was an improper delegation 

of authority regarding “approval” of the AMA Guides, here, there is an improper assumption of

“approval” by the Bureau of IRE courses presented in other states. However, Protz does not 

apply to the “approval” of IRE physicians by the Bureau because it involved an unconstitutional 

delegation of legislative power, not administrative determinations, and Claimant offers no 

evidence that the Bureau “approves” courses given in other states.
12

based on her examination and support her diagnosis that Claimant has reached 

MMI. Because her clinical findings supporting her diagnosis were not challenged

– i.e., the MMI – the question then is whether Dr. Rodriguez’s failure to have all of 

Claimant’s records makes her incompetent to testify that Claimant reached MMI.

As stated in Combine, “[t]he Guides instruct that an individual is at 

MMI when his condition has become static or stable and that while further 

deterioration or recovery may occur at some point in the future, one would not 

expect a change in condition at any time in the immediate future.” 954 A.2d at 

781. On Claimant having reached MMI, Dr. Rodriguez’s testimony established 

that this determination was made in accordance with the AMA Guides. Although 

her most recent medical records for Claimant date back 12 months prior to the IRE, 

Dr. Rodriguez explained that her determination that Claimant reached MMI was 

based on a comparison of those medical records with Claimant’s statements. As 

the Board properly found, a comparison of those medical records with Claimant’s

statements as well as:

in-take evaluation form of Claimant’s symptoms, 

complaints and obstacles, in addition to a current 

[personal] examination and history [of Claimant by Dr. 

Rodriguez] . . . [is] legally sufficient to ascertain whether 

Claimant had achieved MMI, and as Dr. Rodriguez’s 

opinion was unrebutted by any other testimony or 

evidence of record, it established MMI required as a precondition of the IRE. As such, the WCJ erred in finding 

the IRE performed by Dr. Rodriguez was defective.

(R.R. at 188a-189a.) Given that her diagnosis and impairment rating were

accepted by the WCJ and no contrary evidence has been offered, there was no need 
13

for records beyond the previous 12 months to make that determination and the 

Board properly reversed the WCJ’s refusal to accept Dr. Rodriguez’s testimony as 

not competent.10

III.

Finally, Claimant contends the Board erred in not applying Protz

because Dr. Rodriguez used the Sixth Edition and not the Fourth Edition of the 

AMA Guides. Employer nonetheless maintains that Claimant, even though he was 

the prevailing party, should not be permitted to challenge his IRE impairment 

rating on appeal because he did not challenge the use of the most recent edition of 

the AMA Guides before the WCJ.

Normally, failure to raise an issue at all stages of the proceeding 

constitutes waiver because “[c]ase law is clear, however, that in order for a new 

rule of law to apply retroactively to a case pending on direct appeal, the issue had 

to be preserved at ‘all stages of adjudication up to and including the direct 

appeal.’” Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001) (quoting

Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983)). There are exceptions 

though.

 

10 Claimant also relies on IA Construction Corporation v. Workers’ Compensation 

Appeal Board (Rhodes), 139 A.3d 154 (Pa. 2016), to support his contention that the WCJ may 

reject a change of status petition on the basis of finding the IRE physician’s testimony incredible. 

That case is inapposite to this matter because it involved a petition to modify pursuant to Section 

306(a.2)(6), 77 P.S. § 511.2(6), which places the burden on an employer to establish the 

requisites for modification. Here, Claimant was the burdened party and did not offer any 

testimony or evidence to demonstrate that the IRE was defective.
14

Section 703(a) of the Administrative Agency Law, 2 Pa.C.S. § 703(a),

provides that:

A party who proceeded before a Commonwealth agency 

under the terms of a particular statute shall not be 

precluded from questioning the validity of the statute in 

the appeal, but such party may not raise upon appeal any 

other question not raised before the agency 

(notwithstanding the fact that the agency may not be 

competent to resolve such question) unless allowed by 

the court upon due cause shown.

Id. Moreover, Pa. R.A.P. 1551(a) also provides, in relevant part, that:

. . . No question shall be heard or considered by the court 

which was not raised before the government unit except:

(1) Questions involving the validity of a statute.[11]

(2) Questions involving the jurisdiction of the 

government unit over the subject matter of the 

adjudication.

(3) Questions which the court is satisfied that the 

petitioner could not by the exercise of due diligence have 

raised before the government unit. If, upon hearing 

before the court, the court is satisfied that any such 

additional question within the scope of this paragraph 

should be so raised, it shall remand the record to the 

 

11 In Winchilla v. Workers’ Compensation Appeal Board (Nexstar Broadcasting), 126 

A.3d 364 (Pa. Cmwlth. 2015), a claimant challenged his employer’s modification petition by 

contending that the IRE provisions of the Act were unconstitutional. In his appeal to the Board, 

he repeated that argument. However, because he did not preserve that issue in his Petition for 

Review to this Court, we found that it was waived because he did not present the question of the 

validity of the statute to us.
15

government unit for further consideration of the 

additional question.

Id. (footnote added).

Because this matter began before Protz was decided, this appeal

involves the validity of a statute and Claimant raised this issue at the first 

opportunity to do so. Under both Section 703 of the Administrative Agency Law 

and Pa. R.A.P. 1551(a), Claimant was allowed to raise the issue of the improper 

use of the Sixth Guide on appeal. See Ruse v. Workers’ Compensation Appeal 

Board (Valley Medical Facilities Swickley), (Pa. Cmwlth. No. 952 C.D. 2014, filed 

January 13, 2016); see also Mazuruk v. Workers’ Compensation Appeal Board 

(Gillin & Sons Contracting, Inc.), (Pa. Cmwlth. No. 1216 C.D. 2015, filed Oct. 14, 

2016) (both applying Protz even though the case was decided after the Board’s 

decision and the claimant’s petition for review.)

Accordingly, the Board’s order is vacated and this matter is remanded 

to the Board with instruction to remand to the WCJ to determine if the Fourth

Edition and the Sixth Edition of the AMA Guides are different with respect to the 

injuries at issue and, if so, receive testimony as to the impairment rating based on 

the Fourth Edition of the AMA Guides.

_______________________________

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Vincent Beasley, :

Petitioner :

:

v. : No. 634 C.D. 2016

:

Workers’ Compensation Appeal :

Board (Peco Energy Company), :

Respondent :

O R D E R

AND NOW, this 22nd day of December, 2016, it is hereby ordered that 

the order of the Workers’ Compensation Appeal Board dated April 19, 2016, is 

vacated and this matter is remanded to the Workers’ Compensation Appeal Board 

with instruction to remand to the Workers’ Compensation Judge for further 

proceedings consistent with this opinion.

Jurisdiction relinquished.

_______________________________

DAN PELLEGRINI, Senior Judge