IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward J. Timcho, Jr., :

Petitioner :

:

v. : No. 756 C.D. 2015

: Submitted: November 13, 2015

Workers’ Compensation Appeal :

Board (City of Philadelphia), :

Respondent :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: January 27, 2016 

Petitioner Edward Timcho, Jr., (Claimant) petitions for review of an 

order of the Workers’ Compensation Appeal Board (Board). The Board affirmed 

the decision of Workers’ Compensation Judge Lawrence C. Beck (WCJ Beck), 

granting a modification petition filed by the City of Philadelphia (Employer). We 

affirm the Board.

On May 20, 2008, Claimant sustained a work-related injury, which 

Employer identified in a Notice of Compensation Payable (NCP), dated 

August 6, 2008, as a myocardial infarction. On or about November 11, 2008, 

Claimant filed a claim petition, and, on May 27, 2010, WCJ Patricia Bachman

(WCJ Bachman) granted Claimant temporary total disability benefits and described 

Claimant’s work injury as a heart attack and residual heart damage. WCJ 
2

Bachman’s May 2010 decision also denied an earlier modification petition filed by 

Employer. On or about August 18, 2011, Employer filed a second modification 

petition, seeking to change Claimant’s compensation status from total disability to 

partial disability, following an impairment rating evaluation (IRE) indicating that 

Claimant’s impairment was less than fifty percent.

WCJ Beck conducted two hearings, admitting into the record, inter 

alia, the IRE report written by the IRE physician, Lance Owen Yarus, D.O., the 

deposition testimony of Dr. Yarus, and WCJ Bachman’s May 27, 2010 decision 

granting Claimant’s claim petition and denying Employer’s earlier modification 

petition. Claimant submitted into evidence only the NCP, a list of litigation costs, 

and a fee agreement.

In his IRE report, Dr. Yarus applied the American Medical 

Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition 

(Revised) (Guides).1 Dr. Yarus noted in the IRE report that Claimant’s main 

complaint was chest pain:

He currently indicates that he has a burning and pressure 

sensation in his chest. He has no radiation of pain. The 

timing of his pain is occasional. The context of his pain 

is dependent upon activities. Symptoms are made worse 

with excessive activities. Relief is noted with medication 

and rest. He characterized the pain as coming and going.

 

1

In Protz v. Workers’ Compensation Appeal Board (Derry Area School 

District), 124 A.3d 406, (Pa. Cmwlth. 2015), this Court held unconstitutional Section 306(a.2) of 

the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, added by the Act of 

June 24, 1996, P.L. 350, 77 P.S. § 511.2, based upon our conclusion that the General Assembly’s 

proactive approval for physicians conducting IREs to use versions of the Guides beyond the 

Fourth Edition constituted an unconstitutional delegation of legislative authority. Petitioner has 

not raised an issue regarding the propriety of Dr. Yarus’s use of a newer edition of the Guides. 

Thus, we need not consider the impact of our decision in Protz on this matter.
3

(Reproduced Record (R.R.) at 53a.) In addition to reviewing workers’ 

compensation documents, Dr. Yarus also reviewed a report prepared by Nicholas 

De Pace, M.D.2 (R.R. at 54a.) Dr. Yarus identified Claimant’s condition as 

“[m]yocardial infarction secondary to coronary artery disease status post stent 

placement for thrombotic right coronary artery.” (Id.) Dr. Yarus concluded that 

“[Claimant] meets the requirements for the definition of maximum medical 

improvement [(MMI)] as defined on page 26, subsection 2.5e [of the Guides]. He 

has limitations in his activities of daily living. His prognosis is poor.” (Id.) Under 

the section of the IRE captioned “impairment rating and rationale,” Dr. Yarus 

wrote:

Chapter #4 [of the Guides], table #4-6 coronary artery 

disease class III “history of documented MI, angina with 

exertion or significant changes to ADLs to prevent 

angina and/or HF (heart failure). NYHA class III with a 

midrange default of 32%. The objective test findings 

place [Claimant] at C. History of no further symptoms 

and physical examination are consistent with class III. 

Therefore, the calculated total whole-person impairment 

percentage is 32%.

(Id.) Additionally, Dr. Yarus wrote:

It should be noted that [Claimant] did not have any left 

ventricular deficits, congestive heart, or predisposition to 

cardiac arrhythmias. It was stated that he did have 

Crohn’s disease, which would push his cardiac reserve 

and preclude his activities. His activities were not 

precluded on the basis of his cardiac disease solely.

 

2

Employer refers to Dr. De Pace as a “treating physician.” (Respondent’s Brief at 4.) 

WCJ Bachman’s decision, however, indicates that Dr. De Pace “examined Claimant at the 

request of [Employer].” (R.R. at 60a.) WCJ Bachman’s decision suggests that Dr. De Pace’s 

report was the result of his independent medical examination of Claimant. (R.R. at 59a.)
4

(Id.)

In his testimony, Dr. Yarus reiterated the observations and findings in 

his IRE report and explained his methodology, as follows:

Well, in this type of problem, looking at [Table 4-6 in the 

Guides], there is only one table to assess the whole 

rating. That entailed the history, physical findings, and 

objective test results. This is predicated on the New 

York Heart Association criteria . . . . When I looked at 

the totality of his history, the information in the records, 

and knowing that he had stent placement for a thrombotic 

right coronary artery, I chose Class 3 because it best fits 

all of the parameters that he has as far as his condition . . 

. . [W]e always start out at a mid range default at 32 [in 

Class 3] . . . . In most cases . . . you have factors that 

may alter the default either to the left or to the right. And 

you have two numbers in the default range that you can 

move to. If there’s no reason to move one way or the 

other in the calculation, then you stay at the middle 

default. And that’s what I did here.

(R.R. at 18a-20a.) With regard to testing that had been performed on Claimant 

following the placement of the stent, Dr. Yarus indicated that Claimant did not 

have any deficits in his left ventricular function, a factor that, if present, would 

have potentially caused Dr. Yarus to conclude that Claimant had a higher 

impairment percentage. (R.R. at 20a.) Dr. Yarus also noted that Claimant did not 

have a predisposition to cardiac arrhythmias, another factor that might have altered 

his rating. (Id.)

On cross-examination, Claimant’s counsel focused on how Dr. Yarus 

complied with references in the Guides requiring the use of objective testing. 

Dr. Yarus agreed that in performing an impairment rating for a person who has had 

coronary artery disease, Section 4.3 of the Guides requires evaluating physicians to 

consider objective, diagnostic studies, including stress tests, coronary angiograms, 
5

and other related studies. (R.R. at 22a.) Dr. Yarus agreed that the Guides indicate 

that a person’s left ventricular function should be determined through testing. 

(R.R. at 23a.) Dr. Yarus testified that he did not order such testing, but that 

Claimant had had an evaluation for his left ventricular function in 2009. (R.R. at 

24a.) Dr. Yarus admitted that the 2009 studies were not performed in proximity to 

his IRE, but offered that the “Guide[s] is not specific as to time frame or 

assessment. It just says that you have to have an assessment . . . . I was satisfied 

that there was one done and ventricular function was intact.” (R.R. at 24a-25a.) 

Counsel then asked the following question to which Dr. Yarus responded:

Q. Okay. In order to get a completely accurate 

evaluation for impairment rating purposes, would you 

request that one of those studies be performed so that you 

can meet the criteria that are in the guidelines?

A. No, I felt I met the criteria, again because a study 

was done. If there was an issue with his function, th[e]n

other tests would have been done and I would have been 

privy to them, unless they are done and I missed them.

(R.R. at 25a.) Dr. Yarus acknowledged that he did not review results of the tests 

that had been conducted, but on re-direct examination, he testified that he reviewed 

the report Dr. De Pace generated, which indicated that results from the objective 

testing did not show abnormal results. (R.R. 26a-27a.)

The WCJ found that the 2009 objective tests indicated that Claimant 

had normal left ventricular function and that although “[t]here were no studies 

performed proximate to Dr. Yarus’ examination . . . no specific time frame is set 

forth in the [Guides]. Dr. Yarus was satisfied that the 2009 study was sufficient.” 

(Findings of Fact (F.F.) k, l.) The WCJ concluded that Claimant “had reached 

maximum medical improvement as of, at least, July 25, 2011,” (Conclusion of Law 

(C.L.) d.) and that, “as of July 25, 2011, Claimant’s permanent impairment rating 
6

pursuant to the [Guides] is 32%” (C.L. e). Based upon an impairment rating below 

fifty percent, the WCJ modified Claimant’s benefits from total to partial disability 

status.

Claimant appealed from the WCJ’s decision to the Board, asserting 

that Dr. Yarus’s opinion regarding his impairment rating was insufficient to 

support Employer’s modification petition, based upon the fact that Dr. Yarus did 

not order objective tests in conducting the IRE. Claimant argued that Dr. Yarus’s 

reliance upon tests from 2009 did not comply with the requirements of the Guides, 

asserting that testing must be done contemporaneously with an IRE. Claimant also 

argued that Dr. Yarus, an orthopedic surgeon, was not qualified to perform an IRE 

for a claimant whose injury is related to a cardiac condition. The Board affirmed 

the WCJ, concluding that the Guides does not specifically require testing as part of 

the IRE process and that the only requirement for physicians conducting IREs is 

that he or she be a Commonwealth-licensed physician, certified by an American 

Board of Specialties, and be active in clinical practice at least twenty hours per 

week.

Claimant petitions for review of the Board’s order,3raising the sole 

question of whether the Board erred in affirming the WCJ’s decision, because 

Dr. Yarus’s IRE did not comply with the Guides. Section 306(a.2) of the Act 

provides, in pertinent part, as follows:

(1) When an employe has received disability 

compensation pursuant to clause (a) for a period of one 

hundred four weeks, unless otherwise agreed to, the 

 

3 Our review is limited to considering whether substantial evidence supports necessary 

factual findings and whether any error of law or violation of constitutional rights occurred. 2 Pa. 

C.S. § 704.
7

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 [Guides].

(2) If such determination results in an impairment rating 

that meets a threshold impairment rating that is equal to 

or greater than fifty percentum impairment under the 

[Guides], the 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 percentum impairment under the [Guides], the 

employe shall then receive partial disability benefits 

under clause (b) . . . .

. . . . 

(6) Upon request of the insurer, the employe shall submit 

to an independent medical examination in accordance 

with the provisions of section 314 to determine the status 

of impairment . . . .

Under Section 306(a.2) of the Act, an insurer/employer bears the burden of 

proving that a claimant’s whole person impairment rating is below fifty percent. 

Westmoreland Reg’l Hosp. v. Workers’ Comp. Appeal Bd. (Pickford), 29 A.3d 120, 

127 n.10 (Pa. Cmwlth. 2011), appeal denied, 42 A.3d 295 (Pa. 2012).

Under Section 306(a.2) of the Act, in order to be subjected to an IRE, 

a claimant’s injury must be deemed to be “permanent.” Combine v. Workers’ 

Comp. Appeal Bd. (Nat’l Fuel Gas Distrib. Corp.), 954 A.2d 776, 779-80 

(Pa. Cmwlth. 2008), appeal denied, 967 A.2d 961 (Pa. 2009). The concept of 
8

“permanent” injury for the purposes of Section 306(a.2) of the Act is synonymous 

with a claimant’s MMI. Id. Additionally, before an IRE physician may calculate 

an impairment rating, the physician must first determine that a claimant has 

reached MMI.4 Id.

Section 2.3c of the Guides recognizes that the “optimal duration for 

recovery may vary considerably from days to months,” depending on “the nature 

of the underlying pathology.” The Guides provides that “[t]he clinical findings 

must indicate that the medical condition is static and well stabilized for the person 

to have reached MMI.” Section 2.5e of the Guides defines MMI as

a status where patients are as good as they are going to be 

from the medical and surgical treatment available to 

them. It can also be conceptualized as a date from which 

further recovery or deterioration is not anticipated, 

although over time (beyond 12 months) there may be 

some expected change. The Guides, however, does not 

permit the rating of future impairment. There can be 

some scenarios with individuals now at MMI but with 

potential for future progression of their disease.

The Guides also provides that

MMI represents a point in time in the recovery process 

after an injury when further formal medical or surgical 

intervention cannot be expected to improve the 

underlying impairment. Therefore, MMI is not 

predicated on the elimination of symptoms and/or 

subjective complaints. Also, MMI can be determined if 

recovery has reached the stage where symptoms can be 

expected to remain stable with the passage of time, or can 

be managed with palliative measures that do not alter the 

 

4 Under Section 2.3c of the Guides, “[o]nly permanent impairment may be rated 

according to the Guides, and only after the status of ‘Maximum Medical Improvement’ (MMI) is 

determined.” 
9

underlying impairment substantially, within medical 

probability.

Also, “[MMI] does not preclude the deterioration of a condition that is expected to 

occur with the passage of time or as a result of the normal aging process; nor does 

it preclude allowance for ongoing follow-up for optimal maintenance of the 

medical condition in question.” Id.

Section 4.3a of the Guides relates to “Coronary Artery Disease” and 

provides, in relevant part, as follows:

4.3a Criteria for Rating Impairment due to Coronary 

Artery Disease

. . . . 

Stress testing, preferably with cardiac imaging 

techniques, serves as the mainstay in evaluating the 

degree of damage and thus impairment due to CAD 

[(Coronary Artery Disease)]. Left ventricular function 

must be determined in these individuals as an objective 

basis for impairment rating. Coronary angiography is 

also included in the impairment classification tables, as it 

enables the quantitative assessment of atherosclerotic 

disease. Newer imaging techniques, such as cardiac MRI 

and CT angiography, also accurately quantify 

atherosclerotic disease and may be used for impairment 

rating purposes.

Impairment can be markedly altered with treatment 

programs such as cardiac rehabilitation, smoking 

cessation, and compliance with medications. Patients 

often require intervention for their CAD that may be 

percutaneous (ie, percutaneous transluminal coronary 

angioplasty . . . and/or stent placement), or they may 

require coronary artery bypass grafting. Impairment 

ratings should be determined after these procedures have 

been completed and the patient is at MMI, generally 3 to 

6 months later.

(R.R. at 48a-50a (emphasis added).)
10

Claimant contends that Section 4.3a of the Guides requires IRE 

physicians to order tests as part of the IRE process and that such tests must be 

conducted contemporaneously with an IRE. Claimant contends that Dr. Yarus 

failed to comply with this provision because (1) he did not order such tests as part 

of the IRE process; and (2) he admitted that he did not personally assess 

Claimant’s left ventricular function, but, rather, relied upon the 2009 report and 

tests that had been performed relative to Claimant’s heart attack and the treatment 

for his coronary condition.

Claimant argues that interpreting the Guides to permit IRE physicians

to use stale objective tests as support for an impairment rating makes no sense in 

light of the requirement that an IRE physician must first determine that a claimant 

has reached MMI. (Petitioner’s Brief at 19-20.) Claimant contends that MMI is 

not an issue until after the expiration of the 104-week benefit period (following 

which an employer first may request an IRE) and that it is illogical to permit the 

use of tests that have been performed before the determination of MMI becomes 

relevant to the IRE process. Claimant suggests that under Section 4.3c of the 

Guides, testing of left ventricular functioning must be done contemporaneously 

with an IRE, “[o]therwise, IRE doctors, as in this case, would be able to rely on 

stale diagnostic testing and results when attempting to . . . determine an accurate 

and current impairment rating.” (Petition for Review at 8.) Based upon these 

arguments, Claimant contends that Dr. Yarus’s opinion is not competent to support 

his impairment rating and that the Board erred in concluding that Dr. Yarus’s

opinion was sufficient to support the WCJ’s decision to grant the modification 

petition.
11

We conclude that the Board did not err. Claimant is correct in 

pointing out that our General Assembly, by imposing upon employers a 104-week 

“waiting period,” Combine, 954 A.2d at 780, reflected a concern (also contained in 

the Guides) “that impairment should not be considered permanent, which is 

synonymous with MMI, until a reasonable time has passed for healing or recovery 

to occur.” Id. Thus, this Court has reinforced the notion that a claimant must have 

reached MMI—a status where a condition is deemed to be permanent and static, 

and not likely to improve, before a physician may render an opinion regarding the 

degree of whole person permanent impairment. We do not agree with Claimant’s 

argument, however, that the timing of the testing in this case negates the reliability 

of such testing for the purpose of the IRE impairment rating in this matter.

Contrary to Claimant’s arguments, the final sentence of Section 4.3a 

of the Guides supports the Board’s reasoning, because it recognizes that physicians 

may render an impairment rating “generally three to six months” following 

treatments for and intervention with regard to a claimant’s work-related condition. 

Although Section 306(a.2) of the Act prohibits employers from requesting IREs 

within the first 104 weeks following a work-related injury, the Act does not 

prohibit the use of tests that may have been performed within that time period.

In this case, it appears that: (1) Claimant had catheterization and 

stents implanted at the time of his hospitalization in 2008; and (2) Dr. De Pace 

reached a determination in 2009 (for the purpose of the earlier modification 

petition Employer filed), based upon an electrocardiogram, that Claimant’s left 

ventricular function was intact notwithstanding Claimant’s work-related injury. 

That evaluation occurred more than three-to-six months after Claimant’s 2008 

injury and treatment for his cardiac condition. 
12

Dr. Yarus testified that he determined that Claimant had reached MMI 

based upon the criteria set forth in Section 2.5e of the Guides and because 

Claimant had limitations on daily activities and a poor prognosis. (R.R. at 17a.) 

Claimant has not challenged that determination. Thus, Dr. Yarus did not reach a 

determination concerning Claimant’s impairment rating until after he determined

in the IRE that Claimant had reached MMI.

As the Board noted, Section 4.3a of the Guides does not contain a 

directive regarding the necessity to perform objective tests in the process of 

conducting an IRE and does not include any direction regarding the timing of such 

tests. Although it is clear that objective tests are necessary in order to comply with 

the requirement to evaluate left ventricular functioning, the Guides are silent as to 

when testing should be done relative to an IRE impairment rating. The second 

quoted paragraph of Section 4.3a of the Guides emphasizes the notion that 

treatment may have a marked effect on impairment. In this case, it is clear that 

Claimant had a stent placed and was prescribed Coumadin therapy, which 

Dr. Yarus recognized Claimant did not tolerate at high doses, stopped smoking, 

and his treating physician has apparently prescribed various medications. In 

accordance with the recommendations and directives set forth in Section 4.3a of 

the Guides, testing is appropriate at a period of time generally three to six months 

after treatment has occurred. The Guides places no other timing limitations on the 

performance of tests used to determine an impairment rating. Thus, we conclude 

that Dr. Yarus’s reliance upon the report of Dr. De Pace and the testing performed 

in 2009 complied with Section 4.3a of the Guides.

Claimant also argues that the Board erred in concluding that 

Dr. Yarus, an orthopedic specialist, was not qualified under Section 306(a.2) of the 
13

Act to perform an IRE on a claimant whose injury is related to a cardiac condition. 

This Court recently held that the question of whether a physician is qualified to 

perform an IRE is governed by the Act. IA Constr. v. Workers’ Comp. Appeal Bd. 

(Rhodes), 110 A.3d 1096, 1102 (Pa. Cmwlth.), appeal granted on different 

grounds, 121 A.3d 981 (Pa. 2015). A WCJ may not impose greater qualifications 

than those set forth in the Act. Id. Here, there is no dispute that Dr. Yarus 

satisfied the statutory standards to be qualified as an IRE physician. Consequently, 

we find no merit in Claimant’s argument to the contrary. 

Accordingly, we affirm the Board’s order.

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward J. Timcho, Jr., :

Petitioner :

:

v. : No. 756 C.D. 2015

:

Workers’ Compensation Appeal :

Board (City of Philadelphia), :

Respondent :

O R D E R

AND NOW, this 27th day of January, 2016, the order of the Workers’ 

Compensation Appeal Board is AFFIRMED.

 

 P. KEVIN BROBSON, Judge