           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Walter Heck,                            :
                         Petitioner     :
                                        :
            v.                          :   No. 1925 C.D. 2015
                                        :   Submitted: August 12, 2016
Workers’ Compensation Appeal            :
Board (Stroehmann Bakeries),            :
                      Respondent        :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                            FILED: September 20, 2016



            Petitioner Walter Heck (Claimant) petitions for review of an order of
the Workers’ Compensation Appeal Board (Board).         The Board affirmed the
decision of a Workers’ Compensation Judge (WCJ), which: (1) granted Claimant’s
petition for review; (2) denied Claimant’s penalty petition; and (3) granted a
modification petition filed by Stroehmann Bakeries (Employer). We vacate the
Board’s order and remand the matter for further proceedings.
            On July 12, 1997, Claimant sustained a work-related back injury. By
March 20, 2000, Claimant had received 104 weeks of disability benefits arising
from that injury.   In September 2002, Employer submitted to the Bureau of
Workers’ Compensation (Bureau) a request for an Impairment Rating Evaluation
(IRE) of Claimant. On October 11, 2002, the Bureau designated Dr. Earl Wenner
to perform an IRE of Claimant. On or about October 28, 2002, Dr. Wenner issued
an IRE report, indicating that Claimant had an impairment rating of twenty-five
percent.   In reaching his conclusions regarding Claimant’s impairment rating,
Dr. Wenner used the Fifth Edition of the American Medical Association’s Guides
to the Evaluation of Permanent Impairment (Guides). On November 8, 2002,
Employer issued a notice of change of workers’ compensation status (notice of
change of status).
             In May 2007, Claimant filed a petition to review compensation
benefits in which he asserted that, based upon the timing of Employer’s IRE
request, the November 2002 notice of change of status was invalid. On or about
October 25, 2007, Employer filed a petition to modify compensation benefits, in
which Employer asserted that, as of October 28, 2007, Claimant’s condition
changed from total to partial based upon the 2002 IRE and that work was generally
available to Claimant.
             The petitions were initially assigned to WCJ Christina Tarantelli, who
issued a decision denying Claimant’s petition for review and granting Employer’s
modification petition.   Claimant appealed that decision to the Board, which
remanded the matter based upon the WCJ’s error in precluding the submission of
testimony of Claimant’s treating physician. After the Board issued its remand
order, Claimant filed a penalty petition, claiming that Employer unilaterally
stopped paying for medication related to his work-related injury. The penalty
petition was consolidated with the remanded petitions, and all three were
reassigned to WCJ Wayne Dietrich. WCJ Dietrich issued a decision, concluding
that Employer sustained its burden of proof based upon the IRE rating and denying
Claimant’s penalty petition.     The WCJ, however, concluded that Claimant


                                         2
sustained his burden of proof regarding Employer’s discontinuance of payment for
medication, finding that Claimant’s prescription for Celexa was necessary for the
treatment of Claimant’s work-related injury.
            Claimant again appealed to the Board, which, on October 16, 2013,
vacated WCJ Dietrich’s decision and remanded the matter to the WCJ, directing
him to: (1) grant Claimant’s petition for review in which he asked that Employer’s
November 2002 notice of change of status be declared invalid; (2) award
unreasonable contest attorney’s fees based upon Employer’s challenge to the
necessity of Claimant’s medication; (3) make findings regarding whether Claimant
suffered prejudice from Employer’s delay in filing the modification petition
approximately five years after the issuance of the IRE; (4) articulate an objective
basis for credibility determinations regarding the testimony of Dr. Wenner and
Claimant’s expert, Dr. DeFalcis; and (5) permit the parties to present evidence
concerning Claimant’s penalty petition.
            On remand, WCJ Dietrich granted Claimant’s petition for review,
awarded reasonable attorney’s fees of $1,000, denied Claimant’s penalty petition,
and granted Employer’s modification petition, modifying Claimant’s disability
benefits from total to partial. Specifically, the WCJ determined that the delay in
filing the modification petition did not cause Claimant prejudice, and the WCJ
accepted the opinion of Dr. Wenner over that of Dr. DeFalcis. Claimant appealed
to the Board, arguing that (1) Dr. Wenner’s testimony was not competent to
support a finding that Claimant had reached maximum medical improvement
(MMI); (2) the WCJ employed the wrong method to evaluate Claimant’s
impairment; (3) the WCJ erred in concluding that Employer’s delay in filing the
modification petition did not prejudice Claimant; and (4) the WCJ erred in


                                          3
awarding only $1,000 in unreasonable contest attorney’s fees. The Board rejected
all of Claimant’s arguments and affirmed the WCJ’s decision.
                 On appeal,1 Claimant raises the following issues:             (1) whether
Dr. Wenner’s IRE rating of Claimant’s impairment using the Fifth Edition of the
Guides violates Article II § 1 of the Pennsylvania Constitution; (2) whether
Dr. Wenner’s impairment rating conducted pursuant to the Fifth Edition of the
Guides violates Article III, § 18 and Article I, §§ 1 and 26 of the Pennsylvania
Constitution; (3) whether the WCJ’s decision was “reasoned” under Section 422(a)
of the Workers’ Compensation Act (Act),2 where (a) the WCJ failed to explain the
reasons why he did not consider and apply evidence suggesting that Claimant had
not reached MMI; and (b) Dr. Wenner, in rendering his opinion regarding
Claimant’s impairment rating, did not address evidence relating to Claimant’s
condition, which, Claimant contends, rendered Dr. Wenner’s opinion incompetent
to support necessary factual findings; and (4) whether the Board erred in
concluding that Claimant was not prejudiced by Employer’s delay in filing the
modification petition five years after Dr. Wenner completed the IRE.
                 If Claimant is correct regarding his claim that Employer’s delay in
filing its modification petition caused him prejudice, we would be able to reverse
the Board’s decision on those grounds, eliminating the need to address the
constitutional claims arising from the application of the Guides. Thus, we will
address that issue first.

       1
         Our review of an order of the Board affirming a WCJ’s decision is limited to
considering whether the WCJ’s necessary factual findings are supported by substantial evidence
and whether an error of law or violation of constitutional rights occurred. 2 Pa. C.S. § 704.
       2
           Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.



                                                  4
             A WCJ may consider a claim that laches precludes an employer’s
modification petition, if an employer has engaged in a lack of due diligence and a
claimant can demonstrate that he was prejudiced by the delay. Roadway Express,
Inc. v. Workmen’s Comp. Appeal Bd. (Allen), 618 A.2d 1224, 1226
(Pa. Cmwlth. 1992). The Board concluded that: (1) Claimant had not suffered a
pecuniary loss; and (2) Claimant did not demonstrate that he was unable to defend
against the modification petition because of the delay because he had received the
IRE and could have presented a defense against the substance of the IRE if his
condition had changed in the intervening period. (Board Opinion at 10.)
             In this case, Claimant contends that: (1) a delay of five years, in
general, can cause difficulty in obtaining evidence to defend against a modification
petition; and (2) in his case, where he is impaired by pain, narcotic medication, and
suffers from depression, insomnia, and memory loss, obtaining such evidence is
even more difficult. Additionally, as we noted above, Claimant contends that he
was prejudiced because, during the years between the IRE and the date Employer
filed the modification petition, he could not determine definitively whether
Employer would act on the IRE. That uncertainty, Claimant contends, created a
bar for him to make financial plans for his future. For the reasons that follow, we
do not find Claimant’s position meritorious.
             We begin by noting again that Employer obtained the IRE on
October 28, 2002, but did not file its modification petition until on or about
October 25, 2007. In Department of Public Welfare-Loysville Youth Center v.




                                         5
Workers’ Compensation Appeal Board (Slessler), 103 A.3d 397 (Pa. Cmwlth.
2014) (Slessler), we summarized Section 306(a.2)(1) of the Act3 as follows:
                Section 306(a.2)(1) of the Act provides employers with
                the right to seek modification of a claimant’s benefits,
                from total to partial, based upon the results of an IRE
                indicating that a claimant’s “impairment” is less than
                50%. The Act defines the term “impairment” as “an
                anatomic or function abnormality or loss that results from
                the compensable injury and is reasonably presumed to be
                permanent.”       [Section 306(a.2)(8)(i) of the Act,
                77 P.S. § 511.2(8)(i)]. Section 306(a.2)(1) of the Act
                provides employers with the right to require a claimant
                who has received total disability benefits for a period of
                104 weeks to submit to an IRE. If an employer makes
                such a demand within 60 days after the 104-week period
                has elapsed, and the IRE indicates that the impairment is
                less than 50%, a worker’s compensation judge may grant
                a modification based solely on the results of the IRE as a
                matter of course. If an employer, as in this case, requests
                a claimant to submit to an IRE after the 60-day window,
                an employer may still seek modification of benefits from
                total to partial based on the IRE, but the normal
                administrative process for obtaining a modification of
                benefits applies, and an IRE becomes simply “an item of
                evidence just as would the results of any medical
                examination.” Diehl v. Workers’ Comp. Appeal Bd.
                (I.A. Constr.), 5 A.3d 230, 244 (Pa. 2010).

Slessler, 103 A.3d at 404 (footnote omitted and replaced within brackets in text).
                We agree with the Board’s rejection of Claimant’s prejudice
argument, but for different reasons. An employer can file a modification petition
at any time. It is true, as noted above, that the IRE process can provide an
employer with an automatic modification if it complies with the timing provisions


      3
          77 P.S. § 511.2.



                                            6
of Section 306(a.2)(1) of the Act. When an employer seeks modification after that
60-day window, however, the IRE becomes only an item of evidence, and a
claimant, in response, could argue that the item of evidence is stale due to the
passage of time, and, as a result a WCJ should not afford the evidence much
weight. Diehl. Although Claimant raises potential issues about his ability to
develop an evidentiary record about his condition between the date of the IRE and
the date Employer filed the modification petition, he has not identified any specific
evidence that he could not produce in response to the substance of the IRE. In fact,
if, as he suggests, his condition changed within the intervening five years, he fails
to explain how or why he cannot present evidence of his present condition in
contrast to his condition in October 2002. We, therefore, conclude that Claimant
has failed to establish prejudice, and, therefore, the doctrine of laches does not
apply in this case.
              With regard to Claimant’s constitutional challenge to the use of the
Guides, we agree that the use of the Fifth Edition of the Guides was improper
based upon this Court’s holding in Protz v. Workers’ Compensation Appeal Board
(Derry Area School District), 124 A.2d 406 (Pa. Cmwlth. 2015), appeal granted in
part, 133 A.3d 733 (Pa. 2016). In Protz, this Court held that Section 306(a.2) of the
Act is unconstitutional insofar as it directs that the “most recent” version of the
Guides should be used to determine an impairment rating.4 We remanded the matter

       4
         In its order granting an appeal in part, the Supreme Court provided that the question to
be considered was “[w]hether the Commonwealth Court—after properly determining that
Section 306(a.2) of . . . the Act was unconstitutional—erred in remanding the case to the [WCJ]
with instructions to apply the Fourth Edition of the [Guides] when neither Section 306(a.2) nor
any section of the Act ever references the Fourth Edition and its usage was not sanctioned by the
Pennsylvania Legislature.” Thus, the Supreme Court, while agreeing with this Court that
(Footnote continued on next page…)

                                               7
to the Board for further remand to the WCJ to reevaluate the matter in light of the
Fourth Edition of the Guides, which were in effect when the provision was enacted
by the General Assembly. We conclude here that the Board erred in affirming the
WCJ’s decision, because Dr. Wenner employed the Fifth Edition of the Guides,
which, for the reasons expressed in Protz, renders the WCJ’s decision erroneous.
Additionally, although Claimant couches his reasoned decision argument as one
relating to competence, that issue appears to be connected to the issue of whether
evidence supports the WCJ’s finding that Claimant reached MMI, and MMI is a
factual matter for which the Guides provides a method for analysis. Consequently,
as we held in Protz, we must remand the matter to the Board, which must remand
the matter to the WCJ for new proceedings consistent with that decision.5
              Accordingly, we vacate the Board’s order and remand the matter to the
Board with the direction to remand the matter to the WCJ for further proceedings
consistent with this opinion.




                                     P. KEVIN BROBSON, Judge



(continued…)

Section 306(a.2) is unconstitutional, is also considering whether the use of any of the Guides,
including the Fourth Edition, which was in effect at the time the General Assembly adopted
Section 306(a.2), is constitutional.
       5
          By order dated July 27, 2016, this Court directed the parties to provide the Court with
their respective positions on whether we should stay consideration of this matter pending the
Supreme Court’s review of Protz. One of the parties opposed a stay. We, therefore, resolve this
appeal under the current state of law.



                                               8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Walter Heck,                             :
                         Petitioner      :
                                         :
            v.                           :   No. 1925 C.D. 2015
                                         :
Workers’ Compensation Appeal             :
Board (Stroehmann Bakeries),             :
                      Respondent         :


                                      ORDER


            AND NOW, this 20th day of September, 2016, the order of the
Workers’ Compensation Appeal Board (Board) is VACATED. The matter is
remanded to the Board with the direction to remand the case to the Workers’
Compensation Judge for further proceedings.
            Jurisdiction relinquished.




                               P. KEVIN BROBSON, Judge
