The opinion of the court was delivered by: Senior Judge Flaherty
Submitted: February 13, 2009
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Ford Motor/Visteon Systems (Employer) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that affirmed, as modified, the decision of a Workers' Compensation Judge (WCJ) granting Employer's Modification Petition. The Board modified the effective date of the modification from August 24, 2006 to December 30, 2007. We reverse the Board's order and reinstate the WCJ's decision in full.
Gwendolyn Gerlach (Claimant) sustained an injury in the course and scope of her employment on February 28, 2001. Employer accepted liability pursuant to a Notice of Compensation Payable that was subsequently amended to include additional injuries. On December 14, 2006, Employer filed a Modification Petition seeking to convert Claimant's benefits status from total disability to partial disability based on a 19% impairment rating calculated by Scott Naftulin, D.O., who examined Claimant on August 24, 2006. By a decision circulated October 31, 2007, the WCJ, noting the testimony of Dr. Naftulin was unchallenged, granted Employer's Modification Petition and changed Claimant's disability status from total to partial disability effective August 24, 2006.
In an opinion dated September 9, 2008, the Board affirmed as modified. It noted that this matter was not one where relief is self-executing; i.e., where an impairment rating evaluation (IRE) is timely requested upon a claimant's receipt of 104 weeks of disability and that evaluation yields an impairment rating of less than 50%. Rather, an adjudication was required before benefits could be modified. The Board found that Claimant was not adjudicated to have an impairment rating of less than 50% until the date of the WCJ's decision, October 31, 2007. Consequently, the Board, relying on Section 306(a.2) of the Pennsylvania 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, indicated Claimant's benefits should be modified to partial disability as of December 30, 2007, sixty days from the date of the WCJ's decision, as opposed to August 24, 2006.*fn1
On appeal to this Court, Employer argues that the WCJ was correct in the first instance in finding that the Claimant's workers' compensation benefit status should be modified from total to partial disability as of the date of Dr. Naftulin's examination.*fn2 Employer contends the effective date of the modification should be based on the date the credible evidence indicates the injured worker was no longer entitled to total disability.*fn3
Section 123.102 of the Act 57 Regulations states, in pertinent part:
(a) During the 60-day period subsequent to the expiration of the employee's receipt of 104 weeks of total disability benefits, the insurer may request the employee's attendance at an IRE. If the evaluation is scheduled to occur during this 60-day time period, the adjustment of the benefit status shall relate back to the expiration of the employee's receipt of 104 weeks of total disability benefits. In all other cases, the adjustment of the disability status shall be effective as of the date of the evaluation or as determined by the evaluating physician. (Emphasis added).
Section 123.105 of the Act 57 Regulations provides:
(a) When properly requested under §123.102 (relating to IRE requests), an IRE shall be conducted in all cases and an impairment rating determination must result under the most recent edition of the AMA "Guides to the Evaluation of Permanent Impairment." .
(c) The physician performing the IRE shall complete Form LIBC-767, "Impairment Rating Determination Face Sheet" (Face Sheet), which sets forth the impairment rating of the compensable injury. The physician shall attach to the Face Sheet the "Report of Medical Evaluation" as specified in the AMA "Guides to the Evaluation of Permanent Impairment." The Face Sheet and report shall be provided to the employee, employee's counsel, if known, insurer and the Department within 30 days from the date of the impairment evaluation.
(d) If the evaluation results in an impairment rating of less than 50%, the employee shall receive benefits partial in character. To adjust the status of the employee's benefits from total to partial, the insurer shall provide notice to the employee, the employee's counsel, if known, and the Department, on Form ...