IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, :

:

Petitioner :

:

v. : No. 1447 C.D. 2016

: Submitted: January 6, 2017

Workers’ Compensation Appeal :

Board (Logue), :

:

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: March 30, 2017

This matter is a petition filed by the Commonwealth of Pennsylvania

(Employer) for review of an order of the Workers’ Compensation Appeal Board 

(Board) that affirmed the decision of a Workers’ Compensation Judge (WCJ) 

denying modification of total disability benefits to partial disability based on an 

impairment rating evaluation (IRE) pursuant to Section 306(a.2) of the Workers’ 

Compensation Act (Act).

1

For the reasons set forth below, we reverse and remand. 

Section 306(a.2) of the Act provides for IREs to evaluate the degree 

of permanent impairment caused by a work injury and for change of a claimant’s 

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708. Section 306(a.2) 

was added by the Act of June 24, 1996, P.L. 350, No. 57, § 4, as amended, 77 P.S. § 511.2.
2

disability status from total disability to partial disability based on the degree of 

impairment determined by the IRE. Section 306(a.2)(1) states: 

When an employe has received total disability compensation 

pursuant to [the 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 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) (emphasis added). A valid IRE that results in an impairment 

rating of less than 50% permits a change in the claimant’s status to partial 

disability. 77 P.S. § 511.2(2); IA Construction Corp. v. Workers’ Compensation 

Appeal Board (Rhodes), 139 A.3d 154, 155-56 (Pa. 2016). 

If the IRE is requested within 60 days after the claimant has received 

104 weeks of total disability benefits, an impairment rating of less than 50% 

operates to automatically reduce the claimant’s status to partial disability. IA 

Construction Corp., 139 A.3d at 155-56; Diehl v. Workers’ Compensation Appeal 

Board (I.A. Construction), 5 A.3d 230, 245 (Pa. 2010); Gardner v. Workers’ 

Compensation Appeal Board (Genesis Health Ventures), 888 A.2d 758, 765-68 

(Pa. 2005); Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal Board 

(Ketterer), 87 A.3d 942, 946 (Pa. Cmwlth. 2014). An IRE may be requested 

beyond that 60-day period under Section 306(a.2)(6), but reduction of claimant’s 
3

status to partial disability based on the results of such an IRE is not automatic and 

must be sought through a modification petition. 77 P.S. § 511.2(6); IA 

Construction Corp., 139 A.3d at 156; Diehl, 5 A.3d at 245-46; Gardner, 888 A.2d 

at 766-68; Verizon Pennsylvania Inc., 87 A.3d at 946. Section 306(a.2)(1)’s 

requirements for a valid IRE, other than the 60-day limitation, apply to IREs 

requested and performed under Section 306(a.2)(6). Diehl, 5 A.3d at 245-46; 

Logue v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania), 

119 A.3d 1116, 1119 (Pa. Cmwlth. 2015); Verizon Pennsylvania Inc., 87 A.3d at 

946. 

The requirements set forth in Section 306(a.2)(1) are mandatory. 

Dowhower v. Workers’ Compensation Appeal Board (Capco Contracting), 919

A.2d 913, 917 (Pa. 2007); Gardner, 888 A.2d at 765-66; Verizon Pennsylvania 

Inc., 87 A.3d at 946. Because Section 306(a.2)(1) of the Act provides that an IRE 

may be requested only after the expiration of the 104-week period, an IRE 

requested before the claimant has received 104 weeks of total disability benefits is 

invalid and cannot support a modification of benefits to partial disability.

Dowhower, 919 A.2d at 917-18.

William Logue (Claimant) suffered an injury to his right wrist in his 

employment with Employer on February 11, 2002 and received total disability 

benefits for that injury under a Notice of Temporary Compensation Payable 

(NTCP) dated December 19, 2002 that described the injury as a right wrist strain 

and sprain. (3/9/15 WCJ Decision Finding of Fact (F.F.) ¶1; Claimant Ex. 1 

Stipulation ¶¶1-9, Reproduced Record (R.R.) at 28a-29a.) On November 2, 2012, 

Employer filed a request with the Bureau for designation of a physician to perform 

an IRE examination of Claimant under Section 306(a.2) of the Act, and the Bureau 
4

designated Dr. Yutong Zhang as the physician to perform the IRE. (Claimant Ex. 

3 9/24/14 Board Opinion at 1, R.R. at 36a.) Claimant refused to appear for an IRE 

examination by Dr. Zhang and Employer, in December 2012, filed a petition 

seeking an order compelling Claimant to appear for examination by Dr. Zhang.

(Claimant Ex. 2 4/18/13 WCJ Decision F.F. ¶3, R.R. at 33a; Claimant Ex. 3 

9/24/14 Board Opinion at 1, R.R. at 36a.) Claimant, in response, objected to the 

IRE solely on the ground that Employer did not consult with his counsel and

attempt to reach an agreement on the IRE physician before requesting that the 

Bureau designate an IRE physician. (Claimant Ex. 2 4/18/13 WCJ Decision F.F. 

¶5, R.R. at 33a.) On April 18, 2013, a WCJ granted Employer’s petition to compel 

Claimant to appear for the IRE. (3/9/15 WCJ Decision F.F. ¶6; Claimant Ex. 2 

4/18/13 WCJ Decision, R.R. at 31a-33a.) 

Claimant appealed this order to the Board, again arguing as his sole 

objection to the IRE that Employer was required to attempt to reach an agreement 

on the IRE physician before requesting that the Bureau designate an IRE physician, 

and on September 24, 2014, the Board affirmed the order that Claimant submit to 

the IRE. (Claimant Ex. 3 9/24/14 Board Opinion, R.R. at 34a-39a.) Claimant 

appealed the Board’s order to this Court, contending only that the IRE could not be 

ordered because Employer had not consulted on the selection of the IRE physician,

and this Court affirmed. In upholding the order that Claimant appear for the IRE, 

this Court noted that Claimant had been receiving total disability benefits since 

2002 and that the IRE was “under Section 306(a.2)(6) [of the Act], not under 

Section 306(a.2)(1), as it was requested approximately 10 years after Claimant 

began receiving benefits, not within 60 days after he had received two years of 

total disability benefits.” Logue, 119 A.3d at 1118-19. Although Claimant 
5

unsuccessfully sought reargument en banc in this Court and allowance of appeal 

from the Pennsylvania Supreme Court, he did not in either of those petitions 

dispute the accuracy of these conclusions that he had received more than 104 

weeks of total disability benefits before Employer requested the IRE.

While these appeals were pending, Claimant complied with the order

to appear for an IRE. On July 16, 2013, Dr. Zhang conducted an IRE of Claimant

and found that Claimant had a 27% impairment from his 2002 work injury. 

(Employer Ex. 1 Zhang Dep. at 17 & Dep. Ex. 2, R.R. at 71a, 108a-115a.) On 

November 26, 2013, Employer filed a petition to modify Claimant’s benefits from 

total disability to partial disability benefits based on Dr. Zhang’s IRE. This 

modification petition was assigned to a different WCJ from the WCJ who ordered 

the IRE. In support of its modification petition, Employer submitted the deposition 

testimony of Dr. Zhang and his IRE report. A number of other documents were

also admitted in evidence, including a 2010 WCJ decision and stipulation 

concerning Claimant’s disability benefits, the 2013 and 2014 WCJ and Board 

decisions on the petition to compel the IRE, and Verifications of Employment, 

Self-Employment or Change in Physical Condition filed by Claimant. 

On March 9, 2015, the WCJ denied Employer’s modification petition

both on the ground that Employer had failed to show that Claimant had received 

workers’ compensation total disability benefits for 104 weeks and on the ground 

that Dr. Zhang’s testimony was not credible. (3/9/15 WCJ Decision F.F. ¶¶25-29, 

Conclusions of Law (C.L.) ¶¶2-3.) Employer timely appealed to the Board,

contending that it satisfied the requirement that Claimant had received 104 weeks 

of total disability benefits, that the WCJ erred in rejecting Dr. Zhang’s testimony, 

and that the WCJ improperly relied on inadmissible hearsay evidence. (Employer 
6

Appeal to Board, R.R. at 7a-10a.) The Board affirmed on July 29, 2016, 

addressing only the issue of whether Employer showed that Claimant had received 

benefits for 104 or more weeks. (7/29/16 Board Opinion at 4-7.) This appeal

followed.

2

Employer argues that the WCJ and Board erred in concluding that it 

did not show that Claimant had received at least 104 weeks of total disability

benefits when it requested the IRE. We agree. 

Where the evidence before the WCJ shows that the employer began 

paying the claimant total disability benefits more than 104 weeks before the date of 

its IRE request, the employer has made a prima facie showing that the IRE request 

complied with the requirement of Section 306(a.2) that the claimant had received 

workers’ compensation benefits for 104 or more weeks. Beasley v. Workers’ 

Compensation Appeal Board (PECO Energy Co.), 152 A.3d 391, 397 (Pa. 

Cmwlth. 2016).3 Here, the 2010 WCJ decision and stipulation that were 

introduced in evidence established that Employer accepted Claimant’s injury as 

compensable by a December 19, 2002 NTCP and paid Claimant total disability 

benefits under that NTCP, as the Claimant stipulated that his benefits were in an 

amount that was 66 and 2/3 percent of his average weekly wage. (Claimant Ex. 1 

 

2 Our review is limited to determining whether an error of law was committed, whether the 

WCJ’s necessary findings of fact are supported by substantial evidence and whether 

constitutional rights were violated. Verizon Pennsylvania Inc., 87 A.3d at 945 n.2. 

3

The Court notes that although counsel for Claimant represented the claimant in Beasley, he has 

not sought to call it to this Court’s attention despite the fact that it is binding precedent directly 

adverse to arguments that he asserted in his brief. We remind counsel that the Rules of 

Professional Conduct require that “[a] lawyer shall not knowingly ... fail to disclose to the 

tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse 

to the position of the client and not disclosed by opposing counsel” and that this duty 

“continue[s] to the conclusion of the proceeding.” Pa. R.P.C. 3.3(a)(2), (c). 
7

Stipulation ¶¶2-3, R.R. at 28a.) Indeed, the WCJ found that Claimant received 

total disability benefits under the December 19, 2002 NTCP. (3/9/15 WCJ 

Decision F.F. ¶1.) The record also showed that the date of Employer’s IRE request 

was November 2, 2012, over 500 weeks later. (Claimant Ex. 3 9/24/14 Board 

Opinion at 1, R.R. at 36a.) 

This prima facie showing satisfied Employer’s burden of proof as to 

the timeliness of the IRE unless the Claimant introduced evidence that he did not 

receive at least 104 weeks of benefits. Beasley, 152 A.3d at 397. Because 

Employer showed that the date of the IRE was more than 104 weeks after the date 

that its obligation to pay total disability benefits began, “[t]he burden then shifted 

to Claimant to demonstrate that he did not actually ‘receive’ the 104th week of 

benefits prior to the IRE Request.” Id. Claimant did not introduce any such 

evidence. To the contrary, the evidence before the WCJ showed that Employer 

continued to pay Claimant total disability benefits between 2004 and October 

2009, subject to required withholding for support orders. (Claimant Ex. 1 

Stipulation ¶¶4-7, R.R. at 29a.) That period alone amounts to far more than 104 

weeks. The evidence also showed that Claimant remained totally disabled 

throughout the entire period from 2002 until Employer’s IRE request, as Claimant 

represented in multiple Verifications of Employment, Self-Employment or Change 

in Physical Condition from February 2010 to November 2013 that he had not 

worked at all since his 2002 work injury. (Claimant Ex. 5, R.R. at 45a-54a.)

There was no evidence of any suspension, modification or termination of 

Claimant’s total disability benefits and the only evidence that Employer did not 

fully pay Claimant total disability benefits was limited to a period from October 9, 

2009 through March 26, 2010, approximately 24 weeks of the more than 500 
8

weeks between the NTCP and the IRE request. (Claimant Ex. 1 Stipulation ¶¶1, 7-

9, R.R. at 28a-29a.) Indeed, Claimant does not dispute in his brief that he actually 

received more than 104 weeks of total disability benefits before Employer 

requested the IRE in November 2012 and he never disputed that fact in his prior 

appeals challenging Employer’s IRE request.

The WCJ and Board therefore erred in holding that the IRE was 

invalid. The WCJ, however, did not base her denial of Employer’s modification 

petition solely on the ground that Employer failed to satisfy its burden of proving 

that Claimant had received at least 104 weeks of total disability benefits. Rather, 

she also found that Dr. Zhang’s testimony was not credible and held that 

“Employer has failed to present sufficient credible evidence to establish their [sic] 

entitlement to modify Claimant’s benefits status to partial disability benefits.” 

(3/9/15 WCJ Decision F.F. ¶¶ 28-29, C.L. ¶2.) 

Although Employer challenged the WCJ’s rejection of Dr. Zhang’s 

testimony and the evidence on which she based that ruling in its appeal to the 

Board, the Board did not address any of the arguments asserted by Employer other 

than the issue of whether Claimant had received at least 104 weeks of total 

disability benefits. Where, as here, the Board has ruled on only one of the issues 

before it and has not considered the other claims of error, the matter is properly 

remanded to the Board to review and rule on the remaining issues before this Court 

considers the merits of those arguments. Dowhower v. Workers’ Compensation 

Appeal Board (Capco Contracting), 934 A.2d 774, 778–79 (Pa. Cmwlth. 2007) 

(“The Board, not this Court, must review ... decisions of the WCJ before this 

Court can undertake its appellate review” because “this Court is charged with 

reviewing Board decisions, not WCJ decisions”).
9

Accordingly, we reverse the Board’s order and remand this case to the 

Board to address the remaining arguments raised by Employer in its appeal to the 

Board from the March 9, 2015 WCJ decision. 

____________________________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, :

:

Petitioner :

:

v. : No. 1447 C.D. 2016

:

Workers’ Compensation Appeal :

Board (Logue), :

:

Respondent :

O R D E R

AND NOW, this 30th day of March, 2017, the order of the Workers’ 

Compensation Appeal Board in the above matter is matter is REVERSED, and this 

matter is REMANDED to the Board to consider Petitioner’s remaining arguments 

that the Workers’ Compensation Judge erred in denying its petition to modify 

compensation benefits.

Jurisdiction relinquished.

____________________________________

JAMES GARDNER COLINS, Senior Judge