             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles Rodgers,                          :
                   Petitioner             :
                                          :
             v.                           :
                                          :
Workers' Compensation Appeal              :
Board (International Steel Group,         :
A.K.A. ISG Coatesville),                  :   No. 191 C.D. 2015
                   Respondent             :   Submitted: June 26, 2015

BEFORE:      HONORABLE BERNARD L. McGINLEY, Judge
             HONORABLE MARY HANNAH LEAVITT, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                             FILED: August 25, 2015
             Charles Rodgers (Claimant) petitions for review of a Workers’
Compensation Appeal Board (Board) Order which affirmed the Workers’
Compensation Judge’s (WCJ) grant of the International Steel Group, A.K.A. ISG
Coatesville’s (Employer) Petition to Modify Benefits (Modification Petition).


                                    I. Background.
             On February 1, 2004, Claimant suffered a work-related injury which
was described as “bilateral rotator cuff tears.” Stipulation of Fact, June 17, 2005,
No. 4 at 1. He was awarded workers’ compensation benefits at the rate of $690.00
per week, based on an average weekly wage (AWW) of $1,252.23. Stipulation of
Fact, June 17, 2005, No. 5 at 1.
               On or about October 22, 2012, Employer filed a Request for
Designation of Physician to perform an Impairment Rating Evaluation (IRE).


               By letter dated November 7, 2012, Claimant’s counsel objected to the
Request for Designation of Physician and contended that the Workers’
Compensation Act (Act)1 requires “good-faith” efforts to select a mutually
agreeable physician as a prerequisite to Employer’s Request.


               The Bureau of Workers’ Compensation (Bureau) circulated a Notice
of Impairment Rating Evaluation (IRE) Appointment on November 13, 2012.


               By letter dated November 20, 2012, Claimant’s counsel reiterated his
objection.


               By email dated January 19, 2013, Employer proposed two physicians,
including Karl Rosenfeld, M.D., (Dr. Rosenfeld), board-certified in orthopedic
surgery, to perform the evaluation.


               By email dated January 20, 2013, Claimant’s counsel agreed with the
selection of Dr. Rosenfeld, “assuming Dr. Rosenfeld does meet the current
requirements.”       See Claimant’s Exhibit C-4.           Claimant’s counsel requested
documentation of Dr. Rosenfeld’s qualifications to perform IREs.




      1
          Act of June 2, 1915 P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2708.



                                               2
             By letter dated February 4, 2013, Employer’s counsel scheduled an
appointment with Dr. Rosenfeld to occur on March 20, 2013, and provided stated
documents that purported to establish Dr. Rosenfeld’s “approval” to conduct IREs.


             Employer’s counsel’s letter of February 14, 2013, to the Bureau
enclosed a copy of the scheduling notice for filing.


             A third copy of Claimant’s letter of objection was sent to Employer’s
counsel on February 15, 2013.


             Dr. Rosenfeld was provided an itemized package of documents by
Employer’s counsel by letter dated February 25, 2013.


             By email dated March 12, 2013, Claimant’s counsel reiterated his
request for documentation of Dr. Rosenfeld’s “current approval” because the
documents previously supplied were from 2008.


             In an exchange of emails between counsel on March 15, 2013-March
16, 2013, Claimant’s counsel continued to assert the documentation provided by
Employer did not establish Dr. Rosenfeld’s current approval to conduct IREs, but
that Claimant would attend the examination with the understanding that the issue
of Dr. Rosenfeld’s qualifications would be reserved for any subsequent litigation
challenging Claimant’s disability status based on the results of the exam.




                                          3
             Employer filed a Modification Petition based upon the results of the
IRE report of Dr. Rosenfeld, who concluded that there was an eight percent whole
body impairment.


             Employer submitted the deposition testimony of Dr. Rosenfeld.
Deposition of Karl Rosenfeld, M.D., July 23, 2013, (Dr. Rosenfeld Deposition), at
11. Dr. Rosenfeld reviewed Claimant’s medical records and history and performed
an IRE of Claimant on March 20, 2013. Dr. Rosenfeld Deposition at 11-13. Dr.
Rosenfeld relied upon the various tables and charts of the Sixth Edition of the
Guides to the Evaluation of Permanent Impairment.2 Dr. Rosenfeld Deposition at
18-24. Dr. Rosenfeld explained that maximum medical improvement (MMI) is
defined as, “Status where patients are as good as they’re going to be from the
medical and surgical treatments available to them.” Dr. Rosenfeld Deposition at
25. There was nothing in Dr. Rosenfeld’s physical examination that led him to
believe that Claimant was not at MMI. Dr. Rosenfeld Deposition at 31.


             Claimant did not present any independent medical testimony.


             The WCJ granted Employer’s Modification Petition and determined:

             5. On review, the undersigned finds the testimony and
             opinions of Dr. Rosenfeld to be credible and persuasive;
             his opinions support an eight (8%) percent impairment
             rating as of his evaluation on March 20, 2013. These


      2
        American Medical Association’s Guides to the Evaluation of Permanent Impairment,
Robert D. Rondinelli et al., American Medical Association, Guides to the Evaluation of
Permanent Impairment. (6th edition 2008) (Guides).



                                           4
conclusions are accepted, and relief will be granted to the
Employer on the captioned Modification Petition.

6. As presented, Claimant’s challenge to the opinions of
Dr. Rosenfeld related to the necessity for a finding of
Maximum Medical Improvement (‘MMI’)- a prerequisite
to a valid impairment rating. As noted by Claimant in
post-hearing submissions, ‘Dr. Rosenfeld concluded that
Claimant had reached ‘Maximum Medical Improvement’
based solely on records provided by defendant
[Employer]- the most recent of which were years pre-
dating his examination- and the amount of time that has
transpired since the injury occurred.’

7. The contentions of the Claimant do not warrant a
rejection of Dr. Rosenfeld’s conclusions as to MMI.
Initially, it is noted that the medical records referenced
by Dr. Rosenfeld, and the passage of time…support the
finding of MMI (including the element of permanency as
encompassed within MMI). In this connection, it appears
Claimant last received medical attention for his 2004
work injuries (bilateral rotator cuff tears, with surgeries
in 2004 and 2005) in 2009; at that time, the records
indicate Claimant’s condition, both subjectively from
claimant’s standpoint, and objectively from the
physician’s standpoint remained unchanged from
2008…. Moreover, Claimant had not returned for
additional follow up with his surgeon for more than eight
years…. In addition, it is observed that while Claimant
had not fully recovered from his injuries, he was not on
any medication.        Dr. Rosenfeld further concluded
Claimant was in a ‘state of permanency’ as of his
evaluation…; Claimant’s medical condition as related to
the work injuries was stabilized….There was nothing in
his physical examination, his history, or a review of
records to lead one to believe further surgery was needed
or any further substantive medical treatment was
required….        The testimony and opinions of Dr.
Rosenfeld were detailed and well explained; cross
examination did not undermine his opinions….




                            5
WCJ’s Decision and Order, January 14, 2014, (WCJ’s Decision), Findings of Fact
(F.F.) Nos. 5-7 at 1-2.3


               Claimant appealed to the Board. The Board affirmed and determined:

               A careful review of the record reveals no error. The
               WCJ determined Claimant had reached MMI based on
               the credible opinion of Dr. Rosenfeld, upon the medical
               records that establish Claimant has sought no treatment
               for his work injury in many years, and upon Dr.
               Rosenfeld’s examination that established while not fully
               recovered, Claimant’s condition is as good as it is going
               to be. This explanation meets the standard for MMI as
               defined by Combine [v. Workers’ Compensation Appeal
               Board (National Fuel Gas Distribution Corporation), 954
               A.2d 776 (Pa. Cmwlth. 2008)]. As such, the WCJ did
               not err in determining Claimant has reached MMI such
               that the IRE was appropriate, and Defendant [Employer]
               was entitled to a modification of Claimant’s benefits.

               Claimant argues the WCJ improperly shifted the burden
               of proof from Defendant [Employer]. We disagree. Our
               review of the record establishes the WCJ properly placed
               the burden of proof on Defendant [Employer] to establish
               it was entitled to the modification. Although the WCJ
               found Claimant submitted no independent medical
               testimony to rebut the testimony of Dr. Rosenfeld, and
               certainly Claimant was not required to do so, the WCJ
               did not base his findings on Claimant’s failure to submit
               evidence, but upon his acceptance of the evidence
               submitted by Defendant [Employer].              Therefore,
               Claimant’s argument in this regard is rejected.

Board’s Opinion, February 6, 2015, at 3-4.



      3
          Not all of the pages of the Reproduced Record are numbered.



                                               6
                                II. Present Controversy.
              Claimant raises4 four issues on appeal.5               Essentially, Claimant
contends that the Board erred when it affirmed the WCJ’s grant of Employer’s
Modification Petition because the WCJ improperly shifted the burden of proof to
Claimant, the WCJ’s credibility determinations were not supported by substantial
evidence, and the WCJ failed to issue a reasoned decision.6


              First, Claimant argues that the Board erred when it affirmed the
WCJ’s decision because Employer failed to establish that Claimant received the
104th week of “total disability” benefits and that the burden of proof was
improperly shifted to Claimant.




       4
           This Court’s review is limited to a determination of whether an error of law was
committed, whether necessary findings of fact are supported by substantial evidence, or whether
constitutional rights were violated. Vinglinsky v. Workmen’s Compensation Appeal Board (Penn
Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
        5
          In his Statement of Issues Presented, Claimant lists the following:
                 1. Whether the WCAB [Board] failed to recognize that the WCJ
                 improperly shifted the burden of proof to claimant?
                 2. Whether the WCAB [Board] failed to recognize that the
                 credibility determinations were not properly reasoned?
                 3. Whether the WCAB [Board] failed to recognize that the
                 ‘scheme’ of the WCJ’s findings of fact and credibility
                 determinations resulted in a conclusion that ‘could not logically be
                 reached’?
                 4. Whether the WCAB [Board] failed to ascertain and apply the
                 proper definition of an injury ‘reasonably presumed to be
                 permanent’?
Claimant’s Brief at 3.
        6
          This Court has foregone the order of Claimant’s arguments.



                                              7
                 Section 306(a.2) of the Act,7 77 P.S. §511.2(1), provides, in pertinent
part:

                 [F]or 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.’
77 P.S. § 511.2(1).


                 The General Assembly also provided that:

                 Total disability shall continue until it is adjudicated or
                 agreed under [Section 306(b) of the Act, 77 P.S. § 512]
                 that total disability has ceased or the employe’s condition
                 improves to an impairment rating that is less than fifty
                 per centum of the degree of impairment defined under the
                 most recent edition of the American Medical Association
                 ‘Guides to the Evaluation of Permanent Impairment.’
77 P.S. § 511.2(5).


                 A review of the record reveals that Claimant’s 104 weeks of total
disability status ended on March 5, 2006.                     See Employer’s Exhibit D-2,

        7
            Section 306(a.2) of the Act was added by the Act of June 24, 1996, P.L. 350.



                                                  8
Impairment Rating Evaluation Appointment, R.R. at 000084. Additionally, when
the WCJ questioned Claimant’s counsel regarding his decision to contest the IRE
Modification Petition, Claimant’s counsel conceded that his argument was “that
the determination is not credible…because this was requested more than 60 days
after the 104 weeks they have to present credible, convincing evidence to establish
the change in status.” Notes of Testimony, August 21, 2013, at 14. (Emphasis
added.)


            The Board properly affirmed the WCJ’s decision because the record
established that Claimant received 104 weeks of total disability. The burden of
proof was not improperly shifted to Claimant.


            Claimant also contends that the Board erred when it affirmed the
WCJ’s grant of Employer’s Modification Petition because the WCJ’s credibility
determinations were not supported by substantial evidence.


            Substantial evidence is such relevant evidence as a reasonable person
might accept as adequate to support a conclusion. Bethenergy Mines v. Workmen’s
Compensation Appeal Board (Skirpan), 612 A.2d 434 (Pa. 1992). Additionally, in
performing a substantial evidence analysis, this Court must review the evidence in
a light most favorable to the party who prevailed before the factfinder.
Birmingham Fire Insurance Company v. Workmen’s Compensation Appeal Board
(Kennedy), 657 A.2d 96 (Pa. Cmwlth. 1995). Moreover, the party prevailing
before the factfinder is entitled upon appellate review to “have the benefit of the
most favorable inferences deducible from the evidence[.]” Flexer v. Workmen’s



                                        9
Compensation Appeal Board (Wilson), 317 A.2d 53 (Pa. Cmwlth. 1974).
Furthermore, it does not matter that there is evidence in the record which supports
a factual finding contrary to that made by the WCJ, rather, the pertinent inquiry is
whether there is any evidence which supports the WCJ’s factual finding. Grabish
v. Workmen’s Compensation Appeal Board (Trueform Foundations), 453 A.2d 710
(Pa. Cmwlth. 1982).


              In the present case, the WCJ determined that the testimony and
opinions of Dr. Rosenfeld were “credible and persuasive.” WCJ’s Decision, F.F.
No. 5 at 1. The WCJ as the ultimate factfinder in workers’ compensation cases has
exclusive province over questions of credibility and evidentiary weight, and is free
to accept or reject the testimony of any witness, including a medical witness, in
whole or in part. General Electric Company v. Workmen’s Compensation Appeal
Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal
denied, 600 A.2d 541 (Pa. 1991).        Here, the WCJ credited Dr. Rosenfeld’s
testimony that Claimant’s condition remained unchanged from 2008 and Claimant
did not return for additional follow-up visits with his surgeon for more than eight
years. The WCJ explained that Claimant was not on any medication and “[t]here
was nothing in his physical examination, his history, or a review of records to lead
one to believe further surgery was needed or any further substantive medical
treatment was required.” WCJ’s Decision, F.F. No. 7 at 1-2.


              Claimant also contends that the Board erred when it affirmed the
WCJ’s conclusion that Claimant reached MMI because Dr. Rosenfeld’s testimony
failed to establish this.



                                        10
            Section 306(a.2)(8)(i), 77 P.S. §511.2, of the Act defines the term
“impairment” as a functional abnormality or loss resulting from the work injury
that is “reasonably presumed to be permanent.” Section 306(a.2) also requires that
claimant must reach his or her MMI prior to calculating an impairment rating.
Further, the “Guides instruct that an individual is at MMI when his condition has
become static or stable and that while further deterioration or recovery may occur
at some point in the future, one would not expect a change in condition at any time
in the immediate future.”    Combine v. Workers’ Compensation Appeal Board
(National Fuel Gas Distribution Corporation), 954 A.2d 776 (Pa. Cmwlth. 2008).


            Here, Dr. Rosenfeld testified at length about the definition of MMI as
found in the Guides. Dr. Rosenfeld credibly established that Claimant was at MMI
based upon Claimant’s medical history and physical examination. This Court is
satisfied that the WCJ acted within permissible bounds when he credited Dr.
Rosenfeld’s medical opinion that Claimant met MMI at the time of the IRE on
March 20, 2013. This Court will not reweigh the credibility determinations of the
WCJ.


            Finally, Claimant argues that the WCJ failed to issue a reasoned
decision.


            Section 422(a) of the Act, 77 P.S. § 834, provides that the WCJ shall
file a “reasoned decision, containing findings of fact and conclusions of law based
upon the evidence as a whole which clearly and concisely states and explains the
rationale for the decision so that all can determine why and how a particular result



                                        11
was reached.”    Further, “[t]he workers’ compensation judge shall specify the
evidence upon which the workers’ compensation judge relies and state the reasons
for accepting it in conformity with this section.”            Daniels v. Workers’
Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa.
2003). A decision is reasoned if it allows for adequate review by the appellate
courts. “A reasoned decision is no more, and no less.” Id.


             In the present case, the WCJ set forth concise findings of fact and
adequately explained the bases for his factual findings and credibility
determinations to sufficiently support appellate review. This Court is satisfied that
the WCJ issued a reasoned decision pursuant to Section 422(a) of the Act, 77 P.S.
§834.


             Accordingly, the decision of the Board is affirmed.

                                       ____________________________
                                       BERNARD L. McGINLEY, Judge




                                         12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles Rodgers,                       :
                   Petitioner          :
                                       :
            v.                         :
                                       :
Workers' Compensation Appeal           :
Board (International Steel Group,      :
A.K.A. ISG Coatesville),               :   No. 191 C.D. 2015
                   Respondent          :


                                    ORDER

            AND NOW, this 25th day of August, 2015, the Order of the Workers’
Compensation Appeal Board in the above-captioned matter is affirmed.


                                       ____________________________
                                       BERNARD L. McGINLEY, Judge
