            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Peter Heugel,                        :
                  Petitioner         :
                                     :     No. 703 C.D. 2016
            v.                       :
                                     :     Argued: December 15, 2016
Workers’ Compensation                :
Appeal Board (U.S. Airways),         :
                 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 JUDGE McCULLOUGH                                 FILED: January 12, 2017



            Peter Heugel (Claimant) petitions for review of the April 26, 2016
order of the Workers’ Compensation Appeal Board (Board), affirming the decision
of the Workers’ Compensation Judge (WCJ) granting the modification petition of
U.S. Airways, Inc. (Employer) based upon an impairment rating evaluation (IRE).

                        Facts and Procedural History

            On January 10, 2004, Claimant sustained injuries when he slipped and
fell in the course of his employment as a mechanic with Employer. Employer
acknowledged that Claimant sustained a left knee medial meniscal tear and
prepared an agreement for compensation. However, Claimant refused to sign the
agreement due to a dispute regarding the extent/severity of his injuries. Claimant
proceeded to file a claim petition alleging injuries to his left knee and low back.
Employer filed an answer denying the allegations of Claimant’s petition, as well as
a petition for termination/suspension alleging that Claimant had fully recovered
from any injuries as of May 27, 2005. The WCJ treated Claimant’s claim petition
as a petition to review compensation benefits and granted the same. Claimant’s
work injury was modified to include not only a left knee meniscal tear, but also a
tear in the left anterior cruciate ligament and an aggravation of pre-existing disc
herniations at L3, L4, and L5, which required surgery on February 8, 2005. The
WCJ dismissed Employer’s termination/suspension petition. (WCJ’s Findings of
Fact Nos. 1-4.)

            On January 6, 2011, Employer filed a request for designation of a
physician to perform an IRE. Claimant objected noting that he lived in Indiana and
had difficulty in the past arranging transportation to Pennsylvania for independent
medical examinations and surgeries.      Nevertheless, Claimant proposed three
physicians that would be acceptable to him to conduct the IRE. Following several
email exchanges and an inability to agree upon a physician, the Bureau of
Workers’ Compensation designated Dr. Michael Jurenovich to perform the IRE,
but Claimant refused to attend. Employer thereafter filed a petition to compel
physical examination.      By order dated December 13, 2011, the WCJ granted
Employer’s petition. Claimant appealed to the Board, which affirmed. Claimant’s
subsequent appeals to this Court and our Supreme Court were denied. (WCJ’s
Findings of Fact No. 5.)




                                        2
              On May 21, 2012, Claimant underwent an IRE with Dr. Arnold
Berman, a board-certified orthopedic surgeon.1              Dr. Berman is listed on the
Pennsylvania Department of Labor and Industry’s “IRE Physicians Listing” and is
certified to perform IREs under the 5th and 6th Editions of the American Medical
Association’s (AMA) Guides to the Evaluation of Permanent Impairment
(Guides). After examining Claimant, Dr. Berman concluded that Claimant had
reached maximum medical improvement (MMI) and that his whole person
impairment was 8%. (WCJ’s Findings of Fact Nos. 6-7.)                 In his testimony, Dr.
Berman specifically testified, “This report . . . refers to the AMA Guide, sixth
edition, and everything refers to the AMA Guide, sixth edition. . . .” (Reproduced
Record (R.R.) at 103.)

              On September 18, 2012, Employer filed a modification petition
seeking to change Claimant’s disability from total to partial and to limit Claimant’s
indemnity benefits to 500 weeks based upon the IRE. The petition was assigned to
a WCJ, who conducted hearings. At these hearings, Claimant objected to Dr.
Berman’s qualifications to conduct an IRE and his use of the 6 th Edition of the
Guides, and questioned whether Employer had submitted documentary evidence of
his receipt of 104 weeks of total disability benefits. Claimant further complained
that Dr. Berman did not review or discuss a magnetic resonance imaging (MRI)
that was performed on May 15, 2012, a week before Dr. Berman’s IRE. Claimant
testified that he had five surgeries on his lower back, the most recent on October
27, 2012, which was five months after Dr. Berman’s examination. Claimant feels
that he has deteriorated further since the last surgery. (R.R. at 188-189.)


       1
         The parties agreed to have Dr. Berman perform the IRE in Philadelphia rather than have
Dr. Jurenovich perform it in Greenville.
                                              3
              By decision circulated July 14, 2015, the WCJ granted Employer’s
modification petition, thereby modifying Claimant’s benefits from total to partial
and imposing a limit on the same of 500 weeks. In rendering his decision, the
WCJ found Dr. Berman’s opinion that Claimant had reached MMI and had a
whole-body impairment of 8% as credible and persuasive. The WCJ noted that
Claimant did not offer any medical testimony or evidence to dispute Dr. Berman’s
findings. Claimant appealed to the Board, but the Board affirmed, acknowledging
Dr. Berman’s use of the Sixth Edition but declining to allow Claimant to argue the
precedent of Protz v. Workers’ Compensation Appeal Board (Derry Area School
District), 124 A.3d 406 (Pa. Cmwlth. 2015), appeal granted, 133 A.3d 733 (Pa.
2016) because he had not advanced those arguments previously.



                                         Discussion

              On appeal to this Court,2 Claimant advances a broad argument that
argues that use of the Guides is an unconstitutional delegation of authority and is
fraught with inconsistencies and errors in its application. Claimant also raises the
following specific errors by the WCJ and/or the Board:
              1.     The timing of the Employer’s request for the IRE
              was possibly premature (Claimant alleges there was no
              direct evidence of his receipt of 104 weeks of total
              disability benefits);
       2
         Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional
rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704;
Meadow Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214,
216 n.3 (Pa. Cmwlth. 2006). Because an error of law is alleged, our standard of review is
plenary. Leon E. Wintermyer, Inc., v. Workers’ Compensation Appeal Board (Marlowe), 812
A.2d 478 (Pa. 2002).
                                               4
                   2.    Use of the Sixth Edition of the Guides was
                   improper under Protz v. Workers’ Compensation Appeal
                   Board (Derry Area School District), 124 A.3d 406 (Pa.
                   Cmwlth. 2015), appeal granted, 133 A.3d 733 (Pa.
                   2016);[3]

                   3.     The WCJ and Board misunderstood the difference
                   between a physician’s qualifications and the duty of the
                   Department of Labor and Industry to approve physicians
                   to perform IREs;

                   4.     Dr. Berman, the WCJ, and the Board did not apply
                   the term “permanency” properly;

                   5.    The WCJ failed to issue a reasoned decision as
                   required by Section 422(a) of the Act[4], 77 P.S. §834;
                   and,

                   6.    “Current case law regarding designation of an IRE
                   physician is in error.”


Employer generally contests Claimant’s arguments, but focuses upon an allegation
that applying Protz herein would involve an improper, retroactive application of
the holding in that case, without citing any precedent for the proposition. Further,
even if Protz should be applied here, Employer argues that Claimant never
objected with adequate specificity so that any such objection relating to Protz is
waived. Indeed, we will focus on this issue as it is dispositive in this case.


      3
        Our decision in Protz was issued subsequent to the WCJ’s decision in this matter and
while Claimant’s appeal was pending before the Board.

          4
              Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834.
                                                    5
                                      Waiver

            During the litigation, Claimant objected to the testimony by Dr.
Berman, challenging the entire IRE process during Dr. Berman’s deposition (R.R.
at 79), in an e-mail to defense counsel dated September 9, 2014 (R.R. at 248), and
in a letter to the WCJ dated October 28, 2014 (R.R. at 251-53). Additionally,
during Dr. Berman’s deposition, Claimant’s counsel objected to the use of the idea
of MMI without tying it to any finding of permanency (R.R. at 104-05). The
deposition exhibits included Dr. Berman’s IRE report, which did include findings
of both permanency of disability and MMI (R.R. at 173.). The exhibits were
offered at the deposition over objection of Claimant’s counsel (R.R. at 116.).

            However, in his decision, the WCJ acknowledged that Claimant had
raised “several objections to Dr. Berman’s qualifications and testimony,” but
without specifying the objections. (R.R. at 286.) Claimant filed a timely appeal to
the Board, challenging, inter alia, Dr. Berman’s alleged conflation of MMI and
permanency, as well as the WCJ’s Conclusion of Law No. 2, applying the results
of the IRE to the Claimant.        (R.R. at 291.)    Moreover, Claimant filed a
Supplemental Brief with the Board which specifically challenged the
constitutionality and validity of Section 306(a.2) based on this Court’s decision in
Protz, but the Board rejected Claimant’s challenge on this issue as untimely. (R.R.
at 297.)

            In his appeal to this Court, Claimant articulated the issues on appeal,
as noted above, which included an overall challenge to IREs along with a specific
challenge to the WCJ reaching a finding of MMI without any specific finding of
permanency. (R.R. at 313-15). Normally, failure to raise an issue at all stages of


                                         6
the proceeding constitutes waiver because precedent “is clear…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 including the direct
appeal.’” Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa.2001). Significant
exceptions, however, exist and do apply here.

             For example, section 703(a) of the Administrative Agency Law
provides, in pertinent part, 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 . . . .” 2 Pa.C.S. §703(a).
Moreover, Rule 1551(a) of the Pennsylvania Rules of Appellate Procedure
provides, in pertinent part, as follows:


             No question shall be heard or considered by the court
             which was not raised before the government unit except:

             (1) Questions involving the validity of a statute.

             (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
             government unit for further consideration of the
             additional question.
Pa.R.A.P. 1551(a)(1)-(3).



                                           7
             Because (1) this matter began before the decision in Protz, (2) this
appeal involves the validity of a statute, and, (3) Claimant raised this at the first
opportunity to do so, i.e., on appeal to this Court, the issue is not waived.



                                   Applying Protz

             As a threshold matter, Employer disputes whether the holding in Protz
may be applied to the case at bar. It is axiomatic, however, “that changes in
decisional law which occur during litigation will be applied to cases pending on
appeal.” Cipcic v. Workmen’s Compensation Appeal Board (Consolidation Coal
Co.). 693 A.2d 1009, 1011 (Pa. Cmwlth. 1997) (citing M&D Auto Body v.
Workmen’s Compensation Appeal Board (Pallott), 599 A.2d 1016, 1020 (Pa.
Cmwlth. 1991), appeal denied, 615 A.2d 1314 (Pa. 1992)).

             In this case, there is no dispute that Dr. Berman used the Sixth Edition
of the Guides in his assessment findings and conclusions. However, in Protz, this
Court specifically “declare[d] Section 306(a.2) of the Act 77 P.S. §511.2, an
unconstitutional delegation of legislative authority insofar as it proactively
approved versions of the AMA Guides beyond the Fourth Edition. . . .” 124 A.3d
at 416. Thus, Claimant is correct insofar as he argues that the WCJ erred in relying
on the testimony of Dr. Berman, which testimony was premised on the Sixth
Edition of the Guides, to support a modification of his benefits.




                                           8
                                            Conclusion

                   Consistent with Protz, because there is no evidence that Dr. Berman
was trained or certified for the Fourth Edition of the Guides and there was
undisputed evidence that he did not apply the Fourth Edition in the present IRE, his
testimony cannot support a modification of Claimant’s benefits from total to
partial.

                   Accordingly, the Board’s order is vacated and this matter is remanded
to the Board with instruction to remand 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.5



                                               _______________________________
                                               PATRICIA A. McCULLOUGH, Judge




Judge Hearthway did not participate in this decision.




          5
              Given our disposition above, we need not address Claimant’s remaining arguments on
appeal.


                                                  9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Peter Heugel,                            :
                   Petitioner            :
                                         :    No. 703 C.D. 2016
            v.                           :
                                         :
Workers’ Compensation                    :
Appeal Board (U.S. Airways),             :
                 Respondent              :


                                         ORDER

            AND NOW, this 12th day of January, 2017, the order of the Workers’
Compensation Appeal Board (Board), dated April 26, 2016, is hereby vacated and
this matter is remanded to the Board with instruction to remand to the Workers’
Compensation Judge to determine if the Fourth Edition and the Sixth Edition of the
American Medical Association’s Guides to the Evaluation of Permanent
Impairment (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.
            Jurisdiction relinquished.



                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
