Submitted: November 10, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge HONORABLE DAN PELLEGRINI,
PELLEGRINI, Senior Judge
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).
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" 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
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.)
then underwent an IRE by the designated physician who
determined that Claimant had reached maximum medical
improvement (MMI)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 Department for "redesignation." They then
entered into a Stipulation of Facts providing, in pertinent
[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
(R.R. at 35a, 36a.)
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.
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 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.
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.)
Rodriguez testified that Claimant had reached MMI with an
impairment rating of 28 percent. She understood that
Claimant's applicable 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.
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.
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 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.
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 ...