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 A ppeal Board (Board) reversing the Workers’

Compensation Judge ’s (WCJ ) denial o f P eco 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 o therwise 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 in jury, 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 describ ed as a

cervical “st rain/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 a ctive 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 we eks 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 W o rkers’ Compensation’s (Bureau ) Department of Labor and Industry

(Departmen t). 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 ag reement 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 W CJ ordered Claimant to submit to a physical examination

finding that Employer “ met its burden of proving that i t 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 imp rovement (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 th e 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.) , 9 54 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 in struct 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 clai mant 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 physici an.]

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

Employer then filed for the redesignation of an IRE physician

(Re designation Request) and Claimant reassert ed his previous objection s to the

Department’s designation of the original physician

. Again

, Claimant did not

challenge the timeliness of the underlying IRE Request.

T he Department then designat ed Dr. Daisy Rodrigue z (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 (N otice 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 pe tition) with the WCJ5

claiming that the IRE and N otice of Change was defective. Cl aimant ’s review

petition again did not challenge the timeliness of the underlying IRE R equest

.

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

licensed to practice medicine in the C ommonwealth 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, 200 8

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 tra ining course satisfied the Department requirements

because they were incl uded 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 co urse 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 applicable6

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

work

- related injuries as chronic neck pain syndrome due to aggravation of multi

level 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 whe n 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 1 2

months preceding the examination a nd/ 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 examinatio n 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 t o her examination of Claimant. She explained that she rel ied on

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

forms to determine whether Claimant’s condition improved or deterio ra ted 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 improvement7

of his injury

. Claimant has not indicated that he underwent a ny medical

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

B.

On August 25, 2014, t he WCJ denied Employer’ s Petition for

Modification of B enefits because she found that E mployer’s IRE R equest wa s 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 par ties making a good

- faith

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

On April 19, 2016, t he Board reversed the WCJ. 5 It 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 S ection 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

Designatio n 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 Lo gue 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 Act 6 does 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

d ecided 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 proacti vely approved versions of the

AMA Guides beyond the Fourth Edition without review

. T he Board refused to

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

not lodged a challenge to the constituti onal ity of the enabling provisio n , noting that

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

(continued...)

of the AMA Guides beyond the Fo urth Edition without review.” Id. (e mphasis in original). On March 22, 2016, the Pennsyl vania 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 Administrat ive 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 issue s 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

n or 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 sho wing that the IRE Request was made 104

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

, Employer’s NCP demonstrates t hat 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 wher e Claimant initially raised the issu e of the
timeliness of the IRE R equest

, but Employer does not allege that the issue was waived.10

April 15, 2009

, and Employer’s IRE Request was issued o n April 15, 2011, which

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

T he burd en then shifted to C laimant to demonstrate that he did not actually

“receive” the 104 th week of benefit s prior to the IRE Request

. However, b ecau se
Claimant only challenges the IRE Request’s timeliness by raising questions

– as
opposed to offering proof

– about when he actually “received” the 104 th week of

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

properly concl uded

, “[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 i t 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

regulatio ns :

(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) R equired 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 requiremen ts 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 record s that went back 12

mont hs 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 delegati on 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 cli nical findings supporting her diagnosis w ere not challenged

– i.e. , the MMI

– t he question then is whether Dr. Rodriguez’s failure to have all of

Claimant’s records make s 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 an y time in the immediate futu re.” 954 A.2d at

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

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

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

D r. 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 :

i n

- 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 pre

condition 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 w ere
accepted by the WCJ and no contrary evidence has been offered, there was no need13

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 apply ing Protz

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

AMA Guides. Employer nonetheless maintains that Claimant , e ven 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 th e 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 includi ng 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 phys ician’s testimony incredible.

T hat 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 e mployer 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 Administrat ive 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 t he 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 hea rd 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

involve s the validity o f a statute and Claimant raised this issue at the first

opportunity to do so

. U nder both Section 703 of the Administrative Agency Law

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

use of the Sixth Guide on appeal. See Ru se 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. 201 5, 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 reman d 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 JudgeIN 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 22 nd day of December , 2016, it is hereby ordered that

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

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

with instruc tion to remand to the Workers’ Compensation Judge for further

proceedings consistent with this opinion

.

Jurisdiction relinquished.

_______________________________ DAN PELLEGRINI, Senior Judge