           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Henry Mazuruk,                        :
                   Petitioner         :
                                      :
      v.                              :       No. 1216 C.D. 2015
                                      :
Workers' Compensation                 :
Appeal Board (Gillin and              :
Sons Contracting, Inc.),              :
                   Respondent         :


                                    ORDER


            NOW, October 14, 2016, upon consideration of petitioner’s application for

reargument and respondent’s answer, the application is denied to the extent it seeks

reargument, but reconsideration is granted.

            The opinion and order filed August 26, 2016 are withdrawn.

            The attached opinion and order are entered.




                                      BY THE COURT:




                                      Mary Hannah Leavitt, President Judge
                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Henry Mazuruk,                               :
                     Petitioner              :
                                             :    No. 1216 C.D. 2015
              v.                             :
                                             :    Submitted: February 5, 2016
Workers’ Compensation Appeal                 :
Board (Gillin and Sons Contracting,          :
Inc.),                                       :
                   Respondent                :



BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                             FILED: October 14, 2016


              Henry Mazuruk (Claimant) petitions for review from the June 15, 2015
order of the Worker’s Compensation Appeal Board (Board), which affirmed a
Workers’ Compensation Judge’s (WCJ) decision granting Gillin & Sons Contracting,
Inc.’s (Employer) petition to modify Claimant’s compensation benefits from
“temporary total” to “temporary partial” based on an impairment rating of 24%
performed pursuant to section 306(a.2) of the Workers’ Compensation Act (Act).1


       1
         Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §511.2, added by the Act of June 24,
1996, P.L. 350. In Protz v. Workers’ Compensation Appeal Board (Derry Area School District),
124 A.3d 406, 416 (Pa. Cmwlth. 2015) (en banc), we held that section 306(a.2) of the Act was an
unconstitutional delegation of legislative authority because the General Assembly “proactively
approved versions of the AMA Guides beyond the Fourth Edition without review.” (Emphasis in
(Footnote continued on next page…)
                              Facts and Procedural History
              On December 10, 2007, Claimant sustained a work-related injury when
he fell from a ladder during the course of his employment. Employer issued a notice
of compensation payable (NCP), accepting liability for his injuries consisting of a
non-displaced fracture of the eleventh and twelfth ribs and awarding compensation
benefits at a rate of $598.61 per week.      On or about June 13, 2008, Employer filed a
termination petition, alleging that Claimant had fully recovered from his work injury.
On or about June 23, 2008, Claimant filed a review petition to amend the NCP to
correct the description of injury to include a back injury, cervical spine injury with
radiculopathy, lumbar radiculopathy, and left shoulder injury. By order dated May
22, 2009, a WCJ denied Employer’s termination petition concluding that Employer
failed to meet its burden to prove that Claimant had fully recovered from his work-
related injuries, granted Claimant’s review petition, and modified the NCP to include
injuries to “Claimant’s neck, left shoulder, upper back, lower back, including,
specifically, compression trauma to the thoracic and lumbar vertebrae, including an
L4 vertebral fracture, lumbar radiculopathy at L5, lumbar sprain, cervical
radiculopathy at C7-8 and disc herniations at C3 to C7, left shoulder sprain and
posttraumatic myofascitis.” (Reproduced Record (R.R.) at 125a.)
              Employer subsequently filed a request for designation of a physician to
perform an impairment rating evaluation (IRE) and Dr. Lance Yarus was designated
to perform the IRE. Dr. Yarus performed the IRE and determined that Claimant had
an impairment rating of 24%. On May 11, 2012, Employer filed a petition to modify


(continued…)

original). On March 22, 2016, the Pennsylvania Supreme Court granted appeal to review. Protz v.
Workers’ Compensation Appeal Board (Derry Area School District), 133 A.3d 733 (Pa. 2016).


                                              2
Claimant’s compensation benefits, requesting that Claimant’s benefits be modified to
“temporary partial” based on Dr. Yarus’s impairment rating.        Claimant filed an
answer denying the material allegations of Employer’s petition. (R.R. at 3a-4a, 94a-
96a.)
            In support of its petition to modify compensation benefits, Employer
submitted the deposition testimony of Dr. Yarus, a board certified orthopedic surgeon
with certifications in pain management, disability, impairment evaluation, and
forensic examination. Dr. Yarus testified that he is designated by the Pennsylvania
Bureau of Workers’ Compensation (Bureau) to perform IREs under the Sixth Edition
of the American Medical Association Guides to the Evaluation of Permanent Injuries
(AMA Guides) and that he has met the Pennsylvania Department of Labor and
Industry’s certification standards to perform IREs because he took a Bureau-approved
training course. Dr. Yarus noted that a revised version to the Sixth Edition of the
AMA Guides exists; however, he stated that the training course he took was taught by
the author of the first version of the Sixth Edition of the AMA Guides. (R.R. at 62a-
63a.)
            Dr. Yarus confirmed that he performed an IRE of Claimant on March
19, 2012, and testified that he reviewed Claimant’s medical records, conducted a
physical examination, and generated a report containing the results. Dr. Yarus further
testified that his report specified that the compensable injury involved the cervical
and lumbar spine, as well as rib fractures, and explained the method for ascertaining
an individual’s impairment rating:

            [I]mpairment rating is for the diagnoses that were pertaining
            to an underlying process, that is, the injury itself. When
            that injury occurs, the diagnosis will be consistent with
            whatever part of the body the actual injury occurred. Once
            you have that, you have to determine what part of that
            injury is still present and accounted for. And once you have

                                          3
             a diagnosis, that drives the rest of the process, in this edition
             particularly, of how you would modify it, how would you
             interact with whether or not testing was considered
             applicable or not, because in some cases it wouldn’t be
             because it’s already incorporated into the diagnosis.

             Then you come up with a mathematically designed number
             that reflects the whole person impairment. . . . You’re
             looking at a midline default number, and you’re going to go
             to the right or left of that number as you move along the
             process of determining what’s germane to the injury and
             what’s still present . . . .
(R.R. at 66a.)
             Dr. Yarus testified that, after performing an IRE, the first determination
that must be made is whether the individual has reached maximum medical
improvement (MMI) and, pursuant to the Sixth Edition of the AMA Guides, MMI is
defined as a point in time when the injured individual has reached a status where
additional treatment will not improve his or her condition beyond the current state.
He clarified that an individual may continue to exhibit symptoms and treatment for
those symptoms may be available; however, the underlying impairment itself does
not change. Dr. Yarus further testified that he believed Claimant had reached MMI
when he saw him and concluded that, within the confines of the Sixth Edition of the
AMA Guides, Claimant had a total impairment rating of 24%. He explained that:

             I start out with the cervical spine. We come up with a
             diagnosis, which is the intervertebral disc herniations or
             documented Aomsi at a single or multiple level, medically
             documented findings, with or without surgery, with
             documented radiculopathy at the clinically appropriate level
             present at the time of the exam. It basically says that he had
             a disc problem, and we know that there was at C6, and the
             radiculopathy came along with that. . . .

             The percentage of impairment for the cervical spine is 12
             percent. Same thing for lumbar spine going through that
             whole process. . . .

                                            4
              We came up with 13 percent, because again, starting at 12,
              moving to the right we’re at 13. We talked about the
              fracture at L4 not being ratable. They were already
              considered in the diagnoses. The other thing that was part
              of the information is the rib fractured [sic]. They were
              healed.

              And again, when you’re rating, you can’t rate just because
              somebody had something in the past. It has to be something
              that’s discernible at the time of the exam and something
              that’s still present as far as the degree of impairment that
              the person exhibits based on the history of injury.

              So it’s not that we discounted it. It’s just not ratable
              because there are not affects from that particular part of the
              impairments and injuries that occurred. One other thing is
              that when we separate out – if you look at the items that I
              listed, the radiculopathy, we don’t rate that separately. So
              there’s no peripheral nerve involvement that’s separately
              ratable. You include that in the diagnosis. It’s already
              accepted, and you can’t separate it out according to the
              rules of the guides.

              So talking that all into consideration, I used the appendix
              chart as I said, and I added the 13 percent and the 12
              percent by use of the table, and it comes out to 24.[2]
(R.R. at 67a-68a.)
              Dr. Yarus stated that his impairment rating takes into account everything
that is ratable and testified that Claimant had cervical radiculopathy at C6-C7
notwithstanding that the NCP was modified to indicate cervical radiculopathy at C8.
He explained that the diagnosis of cervical radiculopathy at C6-C7 was based on an
MRI, associated with a broad herniation at that level, and different than radiculopathy



       2
         Dr. Yarus explained that, when making an impairment rating based on the table contained
in the Sixth Edition of the AMA Guides, the numerical value representing an individual’s total
impairment rating is reduced by one so an impairment rating may never exceed 100. (R.R. at 68a.)


                                               5
at C7-C8. Dr. Yarus testified that he accepted the description of the compensable
injury included in the records he reviewed but explained that:

             What transpired before or what’s on an MRI or whatever is
             the case for one particular aspect of the exam is not my
             obligation to include other than what I see on the exam. It’s
             not an IME. This is a process where I decide what the
             actual finding of impairment is at the time of exam.
(R.R. at 71a.)
             Dr. Yarus stated that he did not disagree with the WCJ’s factual findings
that Claimant suffered disc herniations at C3-C7, that those conditions are permanent
and not reversible, and that those conditions do not regenerate over time. However,
he explained that his impairment rating is based on what impairment was clinically
manifesting at the time of examination and testified that the AMA Guides do not
authorize a treating physician to rate for past or future impairment. Rather, according
to Dr. Yarus, a rating may only be based on what an individual actually presents at
the time of examination. Similarly, Dr. Yarus testified that an MRI had previously
been performed on Claimant which did not indicate a disc herniation; but, he
incorporated a disc herniation into his impairment rating because Claimant exhibited
clinical findings at the time of his examination. (R.R. at 71a-75a.)
             Dr. Yarus acknowledged that the accepted injury was not a disc
herniation, but rather an L4 compression fracture resulting in radiculopathy at L5;
however, he stated that the fracture had nothing to do with the radiculopathy.
Instead, he testified that the fracture is an old compression and explained that:

             Again, it’s not my intention, nor is it my focus when I’m
             given the responsibility of giving an impairment rating to
             dispute the findings of the judge. Those are the findings
             that encompass the work injury. The rating is a different
             process that has to do with what’s still clinically relevant,
             findings that are still positive that have to do with the
             injury.

                                            6
            ...

            I’m not disputing that he didn’t have a fracture. What I’m
            telling Her Honor is that, in fact, a radiculopathy can’t be
            caused by this type of fracture. I’m not disputing that, there
            was or was not. I’m saying that the radiculopathy is coming
            from herniation. You can’t have a radiculopathy any other
            way except from compression or chemical irritation or just
            direct inflammation. But a fracture in and of itself where
            there is designated doesn’t cause radiculopathy.
(R.R. at 75a-76a.)
            Dr. Yarus acknowledged that x-rays and an MRI performed on Claimant
contained indications of an L4 fracture. However, he testified that the L4 fracture
was not ratable because it had healed and did not produce any ratable symptoms at
the time of his exam. Moreover, Dr. Yarus confirmed that there were other injuries
that had been accepted as part of the work injury, such as a shoulder sprain and a
compression injury of the thoracic spine, that he did not include in his diagnoses
because they did not produce ratable symptoms. (R.R. at 76a-79a.)
            After the record was closed, Claimant submitted a copy of AMA
Classifications and Corrections to the Sixth Edition of the AMA Guides (revised
Sixth Edition) that had been published in January 2008 with a request that the WCJ
take judicial notice of the same. Employer objected to Claimant’s submission and the
WCJ reopened the record for oral argument on the admissibility of the revised Sixth
Edition. At the hearing, Claimant argued that Dr. Yarus did not apply the most recent
edition of the AMA Guides because he used the Sixth Edition of the AMA Guides
instead of the revised Sixth Edition. Employer responded that the revised Sixth
Edition contained only minor changes to the prior version. The WCJ admitted the
document over Employer’s objection, refused to take judicial notice of the same, and




                                          7
gave the parties sixty days to raise an objection to the document’s authenticity, which
neither party did. (R.R. at 49a-59a.)
               By order dated March 26, 2014, the WCJ granted Employer’s petition
and modified Claimant’s compensation benefits from “temporary total” to
“temporary partial” as of March 19, 2012. The WCJ found Dr. Yarus credible and
noted that his testimony was uncontradicted. Additionally, the WCJ determined that
Dr. Yarus used the most recent edition of the AMA Guides and based his impairment
rating only on objective evidence, as required by the AMA Guides.
               Claimant appealed the WCJ’s determination to the Board, arguing that
the IRE was invalid because Dr. Yarus failed to rate all of the adjudicated injuries and
did not use the most recent version of the AMA Guides. The Board rejected his
arguments and affirmed the WCJ, reasoning that an IRE considers only the
impairments found at the time of examination and that Claimant failed to establish
that Dr. Yarus did not use the most recent version of the AMA Guides.
               On appeal,3 Claimant argues that the IRE was not performed under the
most recent edition of the AMA Guides because this Court’s decision in Protz v.
Workers’ Compensation Appeal Board (Derry Area School District), 124 A.3d 406
(Pa. Cmwlth. 2015), appeal granted by 133 A.3d 733 (Pa. 2016), mandates that the
Fourth Edition is the most recent edition of the AMA Guides as a matter of law.4

       3
         Our scope of review is limited to determining whether the necessary findings of fact are
supported by substantial evidence, whether constitutional rights were violated, or whether an error
of law was committed. City of Philadelphia v. Workers’ Compensation Appeal Board (Brown), 830
A.2d 649, 653 n.2 (Pa. Cmwlth. 2003).

       4
          The Protz decision was issued on September 18, 2015, approximately two months after
Claimant’s petition for review was filed and approximately one month before Claimant’s appellate
brief was filed. We invited the parties to advise the Court whether this matter should be stayed
pending the resolution of Protz. Although one party indicated that it would not object to a stay, the
other party objected to the same. Therefore, we are proceeding to dispose of this matter.
(Footnote continued on next page…)

                                                 8
Alternatively, Claimant argues that Dr. Yarus should have performed the IRE
pursuant to the revised Sixth Edition of the AMA Guides. Claimant also argues that
an impairment rating must be based on a compensable injury; Dr. Yarus’s findings
that Claimant’s injuries were old and did not cause Claimant’s condition were
precluded by prior adjudications; and the WCJ’s decision was not based on
substantial evidence.


                                     Discussion
            Section 306(a.2) of the Act provides, in relevant part:

            (1) When an employe has received total disability
            compensation pursuant to clause (a) for a period of one
            hundred four weeks, unless otherwise agreed to, the
            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
            American Medical Association “Guides to the Evaluation of
            Permanent Impairment.”

            (2) If such determination results in an impairment rating
            that meets a threshold impairment rating that is equal to or
            greater than fifty per centum impairment under the most
            recent edition of the American Medical Association
            “Guides to the Evaluation of Permanent Impairment,” the

(continued…)




                                          9
              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 per centum impairment
              under the most recent edition of the American Medical
              Association “Guides to the Evaluation of Permanent
              Impairment,” the employe shall then receive partial
              disability benefits under clause (b): Provided, however,
              That no reduction shall be made until sixty days’ notice of
              modification is given.

77 P.S. §§511.2(1)-(2).
              However, in Protz, this Court determined that section 306(a.2) of the Act
constituted “an unconstitutional delegation of legislative authority insofar as it
proactively approved versions of the AMA Guides beyond the Fourth Edition without
review.” 124 A.3d at 416 (emphasis in original). Accordingly, we remanded the
matter to the WCJ to apply the Fourth Edition of the AMA Guides because we
determined that was the edition that the General Assembly adopted as its
methodology when it enacted section 306(a.2) of the Law.5                   Thus, this Court’s
decision in Protz mandates that the Fourth Edition of the AMA Guides is the most
recent edition of the AMA Guides as a matter of law.
              Notwithstanding our decision in Protz, Employer argues that this Court’s
decision in Wingrove v. Workers’ Compensation Appeal Board (Allegheny Energy),
83 A.3d 270 (Pa. Cmwlth. 2014), instructs that a remand to apply the Fourth Edition
of the AMA Guides in the instant matter is not warranted because Claimant failed to
allege how an IRE performed pursuant to the Fourth Edition of the AMA Guides
would affect his IRE and, therefore, he failed to sufficiently develop his argument.

       5
         On March 22, 2016, the Pennsylvania Supreme Court granted appeal to review whether
this Court erred in remanding the case to the WCJ with instructions to apply the Fourth Edition of
the AMA Guides. Protz v. Workers’ Compensation Appeal Board (Derry Area School District),
133 A.3d 733 (Pa. 2016).


                                               10
             In Wingrove, a claimant challenged the constitutionality of section
306(a.2) of the Act when his status was changed from total to partial disability
following an IRE performed pursuant to the Sixth Edition of the AMA Guides.
Specifically, he alleged that the legislature improperly ceded its law-making power to
the AMA and argued that subsequent editions of the AMA Guides provide different
standards for evaluating impairment such that a claimant who may have previously
qualified for total disability under the most recent edition of the AMA Guides may
not qualify for total disability under a subsequent edition. We rejected the claimant’s
constitutional challenge, noting that a legislative enactment enjoys a strong
presumption that it does not violate the Constitution and stating that the party
challenging a statute’s constitutionality has a “very heavy burden” in overcoming the
presumption; specifically, the challenger must show that the statute “clearly,
palpably, and plainly” violates the Constitution. Id. at 276-77. Accordingly, we
determined that the claimant failed to sufficiently develop his constitutional argument
because he failed to allege how an alternative version of the AMA Guides would
have affected his IRE. Moreover, we reasoned that the claimant did not establish a
plain and palpable constitutional violation because his argument was conclusory and
he addressed none of the pertinent statutory interpretation issues.
             Employer argues that Wingrove instructs that a remand is not warranted
in the instant matter because Claimant failed to allege how his IRE would have been
affected had it been performed pursuant to the Fourth Edition of the AMA Guides.
We disagree.
             In Wingrove, our holding was predicated on the nature of the claimant’s
challenge; the claimant failed to overcome his very heavy burden to establish a plain
and palpable constitutional violation. However, the relevant constitutional issue has
been resolved.    See Protz, 124 A.3d 406.       Therefore, here, Claimant need not


                                           11
overcome a “very heavy burden” and establish a plain and palpable constitutional
violation because he has not asserted a constitutional challenge. Rather, he alleged
that the IRE was invalid as a matter of law because it was not performed pursuant to
the Fourth Edition of the AMA Guides based on our decision in Protz. As such,
unlike the situation presented in Wingrove, it is not fatal to Claimant’s argument that
he failed to allege how an IRE performed pursuant to the Fourth Edition of the AMA
Guides would affect his impairment rating. Instead, Claimant identified an error of
law that was committed before the lower tribunal and a remand is warranted to
correct that error. See Stanish v. Workers’ Compensation Appeal Board (James J.
Anderson Construction Co.), 11 A.3d 569, 577 (Pa. Cmwlth. 2010).
              Accordingly, the Board’s order is vacated. The matter is remanded to
the Board with specific instructions to remand to the WCJ to permit Employer to
have Claimant submit to a new IRE performed pursuant to the Fourth Edition of the
AMA Guides.6



                                                ________________________________
                                                PATRICIA A. McCULLOUGH, Judge




       6
          Based on the foregoing determination, we need not address Claimant’s remaining
arguments regarding whether an impairment rating must be based on a compensable injury, whether
Dr. Yarus’s findings that Claimant’s injuries were old and did not cause Claimant’s condition were
precluded by prior adjudications, and whether the WCJ’s decision was based on substantial
evidence.


                                               12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Henry Mazuruk,                           :
                  Petitioner             :
                                         :    No. 1216 C.D. 2015
            v.                           :
                                         :
Workers’ Compensation Appeal             :
Board (Gillin and Sons Contracting,      :
Inc.),                                   :
                   Respondent            :


                                      ORDER


            AND NOW, this 14th day of October, 2016, the June 15, 2015 order of
the Workers’ Compensation Appeal Board (Board) in the above-captioned matter
is vacated. The matter is remanded to the Board with specific instructions to
further remand to the Workers’ Compensation Judge to permit Gillin and Sons
Contracting, Inc. to have Henry Mazuruk submit to a new impairment rating
evaluation performed pursuant to the Fourth Edition of the American Medical
Association Guides to the Evaluation of Permanent Impairment.
            Jurisdiction relinquished.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
