            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Susan Riley,                                :
                       Petitioner           :
                                            :
               v.                           : No. 238 C.D. 2016
                                            : SUBMITTED: September 9, 2016
Workers' Compensation Appeal                :
Board (Commonwealth of                      :
Pennsylvania),                              :
                Respondent                  :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE HEARTHWAY                             FILED: December 8, 2016

               Susan Riley (Claimant) petitions this Court for review of a Workers’
Compensation Appeal Board (Board) order affirming the decision of a Workers’
Compensation Judge (WCJ) denying Claimant’s petitions to review compensation
benefits under the Workers’ Compensation Act (Act).1 Claimant also seeks review
of the Board’s denial of her motion to vacate her 2003 Independent Rating
Evaluation (IRE). We affirm.


               On August 7, 2000, Claimant suffered work-related injuries after
being assaulted by a patient at the healthcare facility where she was employed.

      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
She received compensation benefits as a result of her injuries, which were listed in
an   August 15, 2002          Notice of Compensation      Payable (NCP) as a
contusion/herniation and fractures in her nose, face, head, and neck. (Reproduced
Record (R.R.) at 3a.) On April 28, 2003, Claimant underwent an IRE by Dr. Barry
Schnall, M.D.    Using the Fifth Edition of the American Medical Association
(AMA) Guides, Dr. Schnall assigned Claimant a 21 percent impairment rating, and
the Department of Labor and Industry Bureau of Workers’ Compensation sent
Claimant a Notice of Change of Workers’ Compensation Disability Status (Notice)
on May 5, 2003.       (R.R. at 9-10a.)   Subsequently, Claimant received partial
disability benefits for 500 weeks.


             On August 28, 2012, Claimant filed a petition for review seeking to
amend her NCP to include additional injuries, including injuries to Claimant’s
shoulders. (R.R. at 19-21a.) On the same day, she filed an additional petition,
alleging that Dr. Schnall had failed to consider the full extent of Claimant’s
injuries. (R.R. at 22-24a.)


             Several hearings were held before a WCJ, where Claimant presented
testimony from her treating physician, Dr. Bruce Menkowitz, about her injuries
and treatment following the assault. Claimant underwent an independent medical
evaluation (IME) on December 17, 2012 with Dr. Richard Schmidt. Following the
IME, Dr. Schmidt testified before the WCJ that Claimant’s shoulder injuries were
not work-related. On August 8, 2014, the WCJ issued a decision denying both of
Claimant’s petitions, finding that Dr. Schmidt’s testimony was more credible than
Dr. Menkowitz’s testimony and that Claimant had failed to establish that the NCP


                                         2
was incorrect, that she sustained work injuries other than those listed in the NCP,
and that she had a work-related impairment rating equal to or greater than 50%.
(R.R. at 25a.) On August 26, 2014, Claimant appealed to the Board, arguing that
the WCJ’s conclusions of law were in error and that the WCJ’s findings of fact
were not supported by substantial evidence. On October 15, 2015, while the
appeal was pending, Claimant filed with the Board a motion to vacate the 2003
IRE in light of our 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). (R.R. at 39a.)


              On January 22, 2016, the Board adopted the WCJ’s findings of fact
and conclusions of law and affirmed the WCJ’s decision, denying Claimant’s
petitions for review and her motion to vacate. (R.R. at 41-55a.) The Board found
that the factual findings of the WCJ were supported by substantial evidence and the
WCJ’s credibility determination was reasoned. Additionally, the Board found that
under Johnson v. Workers’ Compensation Appeal Board (Sealy Components
Group), 982 A.2d 1253 (Pa. Cmwlth. 2009), Claimant could no longer challenge
the 2003 IRE determination because she had failed to do so within the necessary
60-day period set forth in section 306(a.2)(2) of the Act and did not present
evidence of a new impairment rating of more than 50 percent.2 Claimant also

       2
         Act of June 2, 2015, P.L 736, as amended, 77 P.S. §511.2, added by the Act of June 24,
1996, P.L. 350. Section 306(a.2)(2) provides as follows:

              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
(Footnote continued on next page…)
                                              3
failed to challenge the constitutionality of the IRE until her October 15, 2015
motion to vacate. As a result, the Board found that Claimant was precluded from
raising those issues before the Board. (R.R. at 53-54a.)


              Claimant now appeals to this court.3 Claimant argues (1) that the
WCJ’s decision to reject Dr. Menkowitz’s testimony regarding Claimant’s
shoulders was unsupported by accurate, objective reasoning; and (2) that the Board
erred when it determined that the physician properly evaluated Claimant’s level of
impairment using the Fifth Edition of the AMA Guides in light of this court’s
decision in Protz.


              First, we address whether the WCJ erred in rejecting Dr. Menkowitz’s
opinion that Claimant suffered bilateral shoulder injuries in addition to her
accepted cervical injury. In its opinion, the Board agreed with the WCJ that Dr.
Menkowitz’s testimony did not satisfy Claimant’s burden of establishing the
existence of additional compensable injuries. (R.R. at 51-52a.) In support of this

(continued…)

                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.
        3
          Our review is limited to determining whether the Board’s Order violated a claimant’s
constitutional rights, whether an error of law was committed, or whether necessary findings of
fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704.


                                              4
determination, the WCJ pointed to evidence of arthritis in Claimant’s shoulders
that predated the work injury, the lack of documentation of a shoulder injury in
Claimant’s original hospital record, and magnetic resonance imaging undertaken in
the years following the work-related injury. (R.R. at 33a.) In addition, the WCJ
found the testimony of Dr. Schmidt to be more credible than the testimony of Dr.
Menkowitz based on the WCJ’s review of the full evidentiary record. As a result,
the WCJ determined that Claimant’s shoulder injuries were not work-related and
that the NCP was not materially incorrect. (R.R. at 34a.)


            We find that the WCJ’s determination was supported by substantial
evidence. “The WCJ is the ultimate finder of fact and the exclusive arbiter of
credibility and evidentiary weight.” Daniels v. Workers’ Compensation Appeal
Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003). Section 422 of the
Act requires that a WCJ make a “reasoned” decision based upon the evidence in
the record. 77 P.S. § 834. A decision is reasoned under the Act if the WCJ
articulates reasons for accepting or rejecting the evidence in the record. Daniels,
828 A.2d at 1043.     Claimant has the burden of establishing the existence of
additional compensable injuries that would give rise to a modification. Cinram
Manufacturing, Inc. v. Workers’ Compensation Appeal Board (Hill), 975 A.2d
577, 582 (Pa. 2009). “Appellate review [of WCJ conclusions] must focus on
whether there is rational support in the record, when reviewed as a whole, for the
agency action.” Republic Steel Corp. v. Workmen’s Compensation Appeal Board
(Shinsky), 421 A.2d 1060, 1062-63 (Pa. 1980). Here, we find rational support in
the record for the WCJ’s conclusions. The WCJ, in his fact-finding capacity,
chose to accept the testimony of Dr. Schmidt over the testimony of Dr. Menkowitz


                                         5
after fully analyzing the record. Accordingly, we reject Claimant’s argument that
the WCJ erred in failing to expand Claimant’s work injury.


              Next, we agree with the Board that our September 18, 2015 en banc
opinion in Protz does not invalidate Claimant’s 2003 IRE rating.4 In Protz, the
claimant, after undergoing an IRE, was issued a 10% impairment rating under the
Sixth Edition of the AMA Guides and her employer filed a modification petition
seeking to convert her benefits from total to partial. Id. Following the grant of the
modification petition by the WCJ, the claimant in Protz appealed to the Board,
asserting that section 306(a.2)(2) of the Act, 77 P.S. § 511.2(2), which specifies
that the “most recent edition” of the AMA Guides would be used in preparing
impairment evaluations, was an unconstitutional delegation of legislative authority
under Article II, Section 1, of the Pennsylvania Constitution. Although the statute
was passed when the Fourth Edition of the AMA Guides was the most recent, the
Protz claimant was evaluated under the later Sixth Edition. The claimant argued
that the statute as constructed gave the AMA, not the legislature, the authority to
establish criteria under which a claimant’s benefits are adjusted. Protz, 124 A.3d
at 410-11. This Court found that the statute “proactively approved versions of the
AMA Guides beyond the Fourth Edition without review” in violation of Article II,
Section 1, of the Pennsylvania Constitution and vacated the Board’s decision with
instructions to remand to the WCJ to apply the Fourth Edition of the AMA Guides.
Id. at 416.


      4
         The Pennsylvania Supreme Court granted a Petition for Allowance of Appeal of this
Court’s decision in Protz on March 22, 2016. Protz v. Workers’ Compensation Appeal Board
(Derry Area School District), 133 A.3d 733 (Pa. 2016).


                                            6
              This case is not controlled by our holding in Protz. In this case,
Claimant was evaluated by Dr. Schnall using the Fifth Edition of the AMA Guides
rather than the Fourth Edition as required under our rule in Protz. In Protz,
however, the claimant appealed the IRE within 60 days of the Notice. In this case,
it took Claimant nearly ten years after Notice to challenge the use of the Fifth
Edition of the AMA Guides in the 2003 IRE. Claimants have 60 days under
section 306(a.2)(2) of the Act to appeal a reduction in disability benefits following
a Notice prior to the reduction becoming final. 77 P.S. § 511.2(2); see Barrett v.
Workers’ Compensation Appeal Board (Sunoco, Inc.), 987 A.2d 1280, 1288 (Pa.
Cmwlth. 2010). Here, Claimant did not appeal within that time period, thereby
waiving the right to challenge the 2003 IRE determination.5


              In Johnson, we addressed waiver of an IRE challenge when the
determination went uncontested past the initial 60 days. In Johnson, the claimant
filed a petition challenging the IRE on the basis of the physician’s qualifications
more than 60 days following receipt of a Notice. Johnson, 982 A.2d at 1254.
After a hearing, the WCJ dismissed the claimant’s petition, determining that the
physician was qualified.         Id. at 1255-56.       The Board affirmed the WCJ’s
determination. Id. at 1256. The claimant had asserted that her constitutional due
process rights were violated. Id. In that case, we found that because the claimant
did not file her petition to review the IRE until nearly one year after she was

       5
         We note that claimants may also challenge an IRE during the 500 week statutory benefit
period by showing a revised impairment rating of equal or greater than 50 percent. Section
306(a.2)(4) of the Act, 77 P.S. § 511.2(4). In this case, Claimant failed to mount such a
challenge, and did not present any evidence of a new impairment rating of at least 50 percent.


                                              7
provided with the Notice, she waived her right to appeal pursuant to section
306(a.2)(2) of the Act, 77 P.S. § 511.2. Id. at 1260.


             Prior to Protz in Wingrove v. Workers’ Compensation Appeal Board
(Allegheny Energy), 83 A.3d 270, 276 (Pa. Cmwlth. 2014), we determined that a
claimant was barred from challenging an IRE made using a subsequent edition of
the AMA Guides when he failed to challenge his IRE within the statutory period
and did not present evidence that his impairment was equal to or greater than 50
percent. And, in Ruse v. Workers’ Compensation Appeal Board (Valley Medical
Facilities Sewickley) (Pa. Cmwlth. No. 952 C.D. 2014, filed Jan. 13, 2016), we
remanded an IRE determination made using the Fifth and Sixth Editions of the
AMA Guides when the claimant preserved the right to appeal the validity of the
IRE by challenging it within the sixty day period. In this case, Claimant did not
preserve that right because Claimant did not challenge within the 60-day period
and has not put forth evidence of impairment equal to or exceeding fifty percent.


             Section 306(a.2)(2) of the Act provides claimants with 60 days to
challenge determinations made in an IRE. 77 P.S. § 511.2(2). In Johnson, we
determined that claimant’s failure to challenge within the 60-day time period was
critical. Johnson, 982 A.2d at 1257-58. Here, Claimant underwent an IRE in
2003, and that determination went unchallenged by Claimant until we handed
down our decision in Protz. But Protz does not give Claimant a second chance to
appeal her 2003 IRE. Claimant failed to raise her claim within the parameters of
section 306(a.2)(2) of the Act, 77 P.S. § 511.2(2).




                                          8
Accordingly, we affirm the Board.



                        __________________________________
                        JULIA K. HEARTHWAY, Judge




                          9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Susan Riley,                       :
                    Petitioner     :
                                   :
               v.                  : No. 238 C.D. 2016
                                   :
Workers' Compensation Appeal       :
Board (Commonwealth of             :
Pennsylvania),                     :
                Respondent         :



                                 ORDER


               AND NOW, this 8th day of December, 2016, the order of the
Workers’ Compensation Appeal Board is affirmed.




                                   __________________________________
                                   JULIA K. HEARTHWAY, Judge
