                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Patricia Watson,                              :
                     Petitioner               :
                                              :    No. 1203 C.D. 2019
              v.                              :
                                              :    Submitted: January 17, 2020
Workers’ Compensation Appeal                  :
Board (Hillsberg),                            :
                   Respondent                 :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ELLEN CEISLER, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                              FILED: April 15, 2020


              Patricia Watson (Claimant) petitions for review from the August 6, 2019
order of the Workers’ Compensation Appeal Board (Board) quashing Claimant’s
appeal from an order of a workers’ compensation judge (WCJ), which granted the
Petition for Physical Examination filed by Geoffrey Hillsberg, Esq. (Employer) and
directed Claimant to submit to a physical examination for purposes of an impairment
rating evaluation (IRE) under the Workers’ Compensation Act (Act).1                      For the
following reasons, we affirm.


       1
         Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710. Under section
306(a.3) of the Act, added by the Act of October 24, 2018, P.L. 714 (Act 111), an employee who has
received total disability compensation for a period of 104 weeks is required, upon request of an
               The material facts are not in dispute. Claimant sustained a work injury on
May 15, 2007, while employed by Employer and, thereafter, received workers’
compensation (WC) benefits. (Reproduced Record (R.R.) at 3a, 26a, 29a.) On January
10, 2019, Employer filed a Request for Designation of a Physician to Perform an IRE
with the Bureau of Workers’ Compensation (Bureau). (R.R. at 24a-25a.) On January
14, 2019, the Bureau designated Michael A. Kennedy, M.D., to perform the IRE. (R.R.
at 29a.) By letter dated January 15, 2019, Claimant’s counsel advised Employer that
Claimant objected to the IRE and would not appear “unless and until a WCJ [o]rders
Claimant’s appearance.” (R.R. at 30a.)
               Employer subsequently filed a Physical Examination Petition requesting
that Claimant be required to attend an IRE with Dr. Kennedy. (R.R. at 3a.) At a WCJ
hearing conducted on February 21, 2019, Claimant’s counsel argued that the recently
amended IRE provisions of the Act are unconstitutional,2 that Employer had not proven
that Claimant’s injuries were “reasonably presumed to be permanent” prior to
requesting an IRE, and that Employer failed to seek agreement from Claimant on a
suitable physician to perform the IRE before requesting that the Bureau designate a
physician. (R.R. at 12a-13a, 17a.)
               On February 27, 2019, the WCJ issued an order stating as follows:

               Claimant objects to [Employer] obtaining an IRE pursuant to
               Act 111 on constitutional grounds. The parties agree that this


employer’s insurer, to submit to a physical examination to determine the degree of impairment due
to the employee’s compensable injury. 77 P.S. §511.3. This examination is known as an IRE.

       2
         Certain parts of the former IRE provisions, contained in former section 306(a.2) of the Act,
added by the Act of June 24, 1996, P.L. 350, 77 P.S. §511.2, were found to violate the non-delegation
clause of the Pennsylvania Constitution in Protz v. Workers’ Compensation Appeal Board (Derry
Area School District), 161 A.3d 827, 841 (Pa. 2017). Act 111 repealed former section 306(a.2) of
the Act and amended the IRE provisions of the Act by adding section 306(a.3) to the Act.


                                                 2
              WCJ has no authority to declare that statute unconstitutional.
              [Employer’s] Petition for Physical Examination is hereby
              GRANTED.       Claimant is ORDERED to attend an
              examination by Dr. Michael A. Kennedy to be scheduled by
              [Employer].
(WCJ’s order, R.R. at 37a.)
              Thereafter, Claimant appealed to the Board, raising the same arguments
as she raised before the WCJ. The Board determined that the ordering of a physical
examination is within the discretion of the WCJ. (Board’s decision at 2, R.R. at 50a.)
The Board also concluded that “[a] WCJ’s order directing [Claimant] to attend an IRE
is interlocutory and, therefore, non-appealable.” Id. Accordingly, the Board held that
it “lack[ed] jurisdiction to consider the matter at this juncture.” Id. The Board further
determined that its appellate review “did not include constitutional issues” and that the
Board could not “declare a provision of the Act to be unconstitutional because an
administrative agency has no jurisdiction to determine the constitutional validity of its
own enabling legislation.” (Board’s decision at 2-3, R.R. at 50a-51a.)
              Consequently, the Board quashed Claimant’s appeal. (Board’s decision
at 3.) In so doing, the Board recognized that the WCJ’s order requiring Claimant to
attend an IRE with Dr. Kennedy remained in effect. Id.
              On appeal,3 Claimant makes the following arguments: (1) the WCJ’s order
compelling Claimant’s attendance at an IRE was a final, appealable order and not
interlocutory as found by the Board; (2) the WCJ erred in not addressing whether an
IRE is permitted only after a claimant’s condition is “reasonably presumed to be
permanent,” (Claimant’s Br. at 15); (3) the WCJ erred in not addressing whether

       3
         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).


                                                3
Employer was required to seek Claimant’s agreement on a physician to perform the
IRE before requesting designation by the Bureau; (4) the amended IRE provisions of
the Act are unconstitutional because they are being applied retroactively; (5) the
amended IRE provisions of the Act are unconstitutional because they require
physicians to rely on one specific version of the American Medical Association Guides
to the Evaluation of Permanent Impairment when conducting IREs, which fails to take
into account recognized medical advances; and (6) the amended IRE provisions of the
Act represent an unconstitutional delegation under the Pennsylvania Constitution.
             We first address whether the WCJ’s order compelling Claimant’s
attendance at an IRE was a final, appealable order. Claimant argues that the WCJ’s
order was a final order because it fully and finally disposed of the only issue involved,
i.e., whether Claimant was required to attend an IRE. Claimant also contends that there
is a public interest in having the Court decide issues of a frequently recurring nature
where they are capable of continually evading appellate scrutiny.           Specifically,
Claimant maintains that the moment a claimant attends a court-ordered physical
examination there is no longer a justiciable dispute and, thus, the propriety of
compelling a claimant to attend an IRE continually evades appellate scrutiny. Claimant
urges us to address the issue now, rather than wait for the pending modification petition
to run its course. According to Claimant, addressing the issue now would “avoid
extremely costly and time consuming litigation of [m]odification [p]etitions” for any
litigants challenging the propriety of IREs or the constitutionality of the amended IRE
provisions. (Claimant’s Br. at 13.)
             In general, any “decision of a WCJ that does not dispose of all claims or
of all parties is interlocutory” and, consequently, not a final, appealable order. Groller
v. Workers’ Compensation Appeal Board (Alstrom Energy Systems), 873 A.2d 787,



                                            4
789 (Pa. Cmwlth. 2005), appeal denied, 897 A.2d 1185 (Pa. 2006). In Groller, this
Court held that an order requiring a claimant to submit to an IRE is a non-appealable,
interlocutory order. Id. at 789. We explained that because an IRE order merely states
that a claimant is required to attend an IRE and “neither affect[s] [a] [c]laimant’s
benefits nor affect[s] [an] [e]mployer’s obligation to pay benefits,” such an order is
interlocutory. Id.4 Likewise, in Kuzo v. Workers’ Compensation Appeal Board (St.
Luke’s Miner’s Memorial Med Center), 936 A.2d 1216, 1218 (Pa. Cmwlth. 2007),
appeal denied, 947 A.2d 738 (Pa. 2008), we held that “an order requiring a claimant to
submit to an IRE is a non-appealable, interlocutory order.” Id. at 1218; see also Carter
v. Workers’ Compensation Appeal Board (GenCorp, Inc.) (Pa. Cmwlth., No. 1172 C.D.
2012, filed May 7, 2013), slip op. at 4 (holding that an order compelling a claimant to
attend an IRE is a non-appealable, interlocutory order).5
              Although Claimant argues that judicial economy should dictate that we
decide the propriety of the IRE now, rather than wait until the pending modification
petition is decided, this position is contrary to our precedent. Claimant also argues that
IRE orders evade appellate review; however, because an IRE order, by itself, has no
effect on WC benefits and WC benefits are only affected after a modification petition
is decided, claimants retain the ability to challenge the appropriateness of an IRE at a


       4
          In Groller, the underlying issue was whether the claimant was barred by res judicata from
arguing that an IRE was untimely where the claimant did not appeal the WCJ’s IRE order, but instead,
filed a review petition after he had already attended the IRE and after the employer’s insurer had
changed his disability status to partial disability based on the examination. 873 A.2d at 788-89.
Because we concluded that the IRE order was interlocutory, and not final, we held that res judicata
could not bar the claimant from challenging the timeliness of the IRE in the Review Petition. Id. at
789.

       5
          Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of the Court
filed after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).



                                                 5
modification petition hearing, and may seek appellate review regarding the IRE once
the petition is decided. See, e.g., Swartz v. Workers’ Compensation Appeal Board
(Cheltenham York Road Nursing & Rehabilitation), 869 A.2d 35, 38 (Pa. Cmwlth.
2005) (holding that although an appeal from a WCJ’s order requiring the claimant to
submit to an interview with a vocational counselor was interlocutory, the claimant
could still challenge the counselor’s qualifications and/or findings at the hearing on the
modification petition).
              Therefore, because the WCJ’s order compelling Claimant to attend an IRE
was a non-appealable, interlocutory order under our binding precedent, see Kuzo, 936
A.2d at 1218; Groller, 873 A.2d at 789, the Board did not err in quashing Claimant’s
appeal from said order. Accordingly, the Board’s order is affirmed.6




                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge




       6
         In light of our holding that the WCJ’s IRE order was non-appealable, we are unable to
address Claimant’s arguments on the merits at this juncture.


                                              6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Patricia Watson,                      :
                   Petitioner         :
                                      :    No. 1203 C.D. 2019
            v.                        :
                                      :
Workers’ Compensation Appeal          :
Board (Hillsberg),                    :
                   Respondent         :


                                  ORDER


            AND NOW, this 15th day of April, 2020, the August 6, 2019 order of
the Workers’ Compensation Appeal Board is affirmed.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
