                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Glen Ruse,                             :
                          Petitioner   :
                                       :
           v.                          :
                                       :
Workers’ Compensation Appeal Board :
(Valley Medical Facilities Sewickley), :          No. 952 C.D. 2014
                          Respondent :            Submitted: October 16, 2015


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge1
              HONORABLE MARY HANNAH LEAVITT, Judge2
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                       FILED: January 13, 2016

              Glen Ruse (Claimant) petitions this Court for review of the Workers’
Compensation Appeal Board’s (Board) February 27, 2014 order denying Claimant’s
Petition to Grant Remand/Rehearing and its May 8, 2014 order affirming the
Workers’ Compensation Judge’s (WCJ) decision denying Claimant benefits under the
Workers’ Compensation Act (Act).3 The issues for this Court’s review are: (1)
whether the Board erred when it determined that the physician properly re-evaluated
Claimant’s total impairment and appropriately used the most recent 6th Edition of the
American Medical Association’s Guides to the Evaluation of Permanent Impairment
(AMA Guides), where the prior impairment rating evaluation (IRE) was based on an
earlier 5th Edition of the AMA Guides; (2) whether the WCJ erred in finding that

       1
          This matter was assigned to this panel before January 1, 2016, when President Judge
Pellegrini assumed the status of senior judge.
        2
          This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
        3
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Claimant’s work injury-related depression had reached maximum medical
improvement (MMI) based on the IRE physicians’ testimony, and whether the Board
erred in affirming the WCJ; (3) whether the WCJ erred in finding Claimant’s
psychologist not competent to render opinions as to whether Claimant had achieved
MMI, and finding that the psychologist’s testimony was speculative, and whether the
Board erred in affirming the WCJ; (4) whether the WCJ erred in finding the
testimony of Claimant’s psychiatrist lacked foundation, and whether the Board erred
in affirming the WCJ; and, (5) whether the Board erred in refusing to grant
Claimant’s Petition for Remand/Rehearing.
             On March 2, 1998, Claimant was injured in the course of his
employment with Valley Medical Facilities Sewickley (Employer).             Employer
accepted the injury through a Notice of Compensation Payable (NCP) which
described Claimant’s injury as a lumbar strain and spasms. On August 25, 2006,
Employer filed a Petition to Modify Claimant’s Workers’ Compensation (WC)
Benefits (Modification Petition) seeking a change in Claimant’s disability status from
total to partial disability based on Anthony Ricci, M.D.’s (Dr. Ricci) July 19, 2006
IRE which established that Claimant had a 33% whole body impairment.               On
November 8, 2006, Claimant filed a Petition to Review Compensation Benefits
(Review Petition) alleging that, as of that date, the NCP incorrectly described his
March 2, 1998 work injuries because he had sustained psychological injuries in
addition to those injuries previously described therein.
             On January 21, 2009, WCJ William Lowman (WCJ Lowman) held that
since Claimant had established that he also suffered depression as a result of the
March 2, 1998 work injury, the work injury should be expanded to include depression
and, thus, he granted Claimant’s Review Petition.          WCJ Lowman also granted
Employer’s Modification Petition changing Claimant’s disability status from total to
partial disability effective September 25, 2006, but stated:
                                           2
           In order to preserve the determination . . . that [Claimant] is
           now partially disabled, [Employer] must request that
           [Claimant] undergo an [IRE] on the new parameter of
           depression which became part of the work injury on
           November 9, 2006 which was subsequent to Dr. Ricci’s
           earlier [IRE]. Since this Decision and Order is the first
           determination that [C]laimant has suffered a psychological
           injury as a result of the March 2, 1998 work injury, the
           circulation date of this Decision and Order will act as the
           commencement of the statutory 60[-]day window in which
           employer must request a medical examination for the
           purposes of determining [C]laimant’s impairment now
           that the parameter of depression has been added to the
           work injury.
           If [E]mployer makes the request for the examination within
           the 60[-]day window[,] and that examination sets forth
           that the total impairment considering all parameters of
           [C]laimant’s injury, including depression remains under
           50%, and that [C]laimant has reached [MMI] as far as the
           depression component of the injury is concerned,
           [Claimant’s] workers’ compensation status will remain
           partial in nature with no break in that partial disability status
           from September 25, 2006 and without the need of any
           further order of a [WCJ]. If, however, [C]laimant’s total
           impairment including the depression equals or exceeds
           50%[,] or it is determined that [C]laimant has not reached
           [MMI] on the depression aspect of the work injury,
           [Claimant’s] disability status will resort to temporary total
           disability.
           If, however, the request for examination is not made by
           [Employer] within the 60[-]day window, then [C]laimant’s
           disability status will revert to temporary total disability
           status and the employer will need to avail itself of the
           procedures set forth in Gardner v. [Workers’ Compensation
           Appeal Board (Genesis Health Ventures)], 888 A.2d 758
           (Pa. 2005) to have [C]laimant’s temporary total disability
           status changed to a partial disability status.

Reproduced Record (R.R.) at 21a-22a (bold emphasis and italics added). Neither
party appealed from WCJ Lowman’s January 21, 2009 decision.



                                          3
            On April 29, 2009, Dr. Ricci performed a second IRE utilizing the most
recent 6th Edition of the AMA Guides. Dr. Ricci’s Medical Impairment Report noted
that Chapter 14 of the AMA Guides (pertaining to mental and behavioral disorders),
states that “the impairment rating for a physical condition provides for the pain
associated with that impairment.     The psychological distress associated with a
physical impairment is similarly included with the rating,” and “the psychological
issues are encompassed within the rating for the physical impairment, and the mental
and behavioral disorder chapter should not be used.” R.R. at 29a. Based thereon, Dr.
Ricci determined that Claimant had a 25% total impairment. R.R. at 27a. Thereafter,
Employer filed a Notice of Change of Workers’ Compensation Disability Status
reflecting the impairment determination. In response, Claimant filed a Petition to
Review Compensation Benefits (Petition to Review Compensation) challenging the
IRE and later amended the Petition to Review Compensation to include a right wrist
injury.
            Subsequently, WCJ Anne Coholan (WCJ Coholan) held hearings on
Claimant’s Petition to Review Compensation.         Claimant testified before WCJ
Coholan as to his injuries, treatment and medical condition. Claimant submitted into
evidence records from his psychologist Avril Zaharoff, Ph.D. (Dr. Zaharoff), the
deposition transcript of Anna Mathew, M.D. (Dr. Mathew) who treated Claimant for
a broken wrist, and the deposition transcript of Claimant’s psychiatrist Ravi Kant,
M.D. (Dr. Kant).       Employer offered into evidence an Impairment Rating
Determination Face Sheet dated May 11, 2009, Dr. Ricci’s Medical Impairment
Report based upon an April 29, 2009 examination of Claimant, and Dr. Ricci’s
deposition transcript. Employer also submitted into evidence a June 23, 2011 report
and a transcript of Jon B. Tucker, M.D.’s (Dr. Tucker) deposition.




                                          4
              By decision and order dated April 27, 2012, WCJ Coholan first
concluded that Claimant failed to establish a causal connection between his right
wrist injury and his March 2, 1998 work injury. WCJ Coholan also determined:

              The evidence of record has established that [Claimant] was
              at [MMI] from the standpoint of his work[-]related back
              injury and his work[-]related depression at the time of the
              [IRE] that was performed upon him by Anthony Ricci,
              M.D. in April 2009. In addition, Dr. Ricci credibly
              concluded that, as of the time he performed the [IRE] upon
              [Claimant] in April 2009, [Claimant] had less than a 50%
              impairment of the whole person in accordance with the
              provisions of the AMA Guides to the Evaluation of
              Permanent Impairment, 6th Edition. As such, in accordance
              with [WCJ] Lowman’s unappealed Decision and Order of
              January 21, 2009, I must conclude that [Claimant’s]
              temporary disability status changed to a partial disability
              status as of September 25, 2006. Thus, [Claimant’s]
              Petition to Review Compensation Benefits must also be
              denied insofar as [Claimant] has sought to have his
              disability status revert back to a total disability status.

R.R. at 410a-411a.
              Claimant filed an appeal from WCJ Coholan’s decision to the Board.
While the appeal was pending, Claimant also filed a Petition to Grant
Remand/Rehearing in Light of After Discovered Evidence (Petition for
Remand/Rehearing) based upon the opinions expressed by a subsequent Independent
Medical Examiner. On February 27, 2014, the Board denied Claimant’s Petition for
Remand/Rehearing.        On May 8, 2014, the Board issued its Opinion and Order
affirming WCJ Coholan’s decision. Claimant appealed to this Court.4
              Claimant first contends that WCJ Coholan and the Board erred when
they concluded that Claimant’s whole body impairment was properly assessed in the

       4
         “Our review is limited to determining whether an error of law was committed, whether the
WCJ’s necessary findings of fact are supported by substantial evidence and whether constitutional
rights were violated.” Verizon Pennsylvania Inc. v. Workers’ Comp. Appeal Bd. (Ketterer), 87 A.3d
942, 945 n.2 (Pa. Cmwlth. 2014).
                                               5
second IRE using the 6th Edition of the AMA Guides because Claimant’s physical
impairment in the original IRE was evaluated using the 5th Edition of the AMA
Guides, and WCJ Lowman’s order directed that only Claimant’s psychological
impairment be assessed.5
               Contrary to Claimant’s contention, there is nothing in WCJ Lowman’s
decision and order explicitly restricting the IRE to an examination of Claimant’s
depression. As Claimant points out, WCJ Lowman’s opinion provides for Claimant
to “undergo an impairment rating evaluation on the new parameter of


       5
          Section 306(a.2) of the Act, 77 P.S. § 511.2, added by Section 4 of the Act of June 24,
1996, P.L. 350, sets forth rules pertaining to modification of a claimant’s disability status from total
to partial disability. That section 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.’

               ....

               (6) Upon request of the insurer, the employe shall submit to an
               independent medical examination in accordance with the provisions
               of [S]ection 314 to determine the status of impairment: Provided,
               however, That for purposes of this clause, the employe shall not be
               required to submit to more than two independent medical
               examinations under this clause during a twelve-month period.

77 P.S. § 511.2 (emphasis added).


                                                   6
depression[.]” However, WCJ Lowman further required Employer to “request a
medical examination for the purposes of determining [C]laimant’s impairment now
that the parameter of depression has been added to the work injury[,]” and also
directed that:

             [i]f [E]mployer makes the request for the examination
             within the 60[-]day window and that examination sets
             forth that the total impairment considering all
             parameters of [C]laimant’s injury, including depression
             remains under 50%, and that [C]laimant has reached [MMI]
             as far as the depression component of the injury is
             concerned, [Claimant’s] workers’ compensation status will
             remain partial in nature[.]

R.R at 23a-24a (double emphasis added). Thus, WCJ Lowman’s decision is clear
that the new IRE was to “consider[] all parameters of [C]laimant’s injury[.]” Id.
(emphasis added).
             Claimant argues that WCJ Lowman could not have intended that the IRE
he ordered include Claimant’s physical impairment, since “the effective date of a
modification to partial disability is when the IRE physician found credible by the
WCJ examined the claimant.” Ford Motor/Visteon Sys. v. Workers’ Comp. Appeal
Bd. (Gerlach), 970 A.2d 517, 523 (Pa. Cmwlth. 2009). In support of his position,
Claimant points out that, WCJ Lowman’s decision and order provides that if after the
new IRE is performed, Claimant’s total impairment including the depression is
determined to be less than 50%, Claimant’s disability status “will remain partial in
nature with no break in that partial disability status from September 25, 2006.” R.R.
at 21a. Thus, interpreting the language to provide for a new IRE pertaining to
Claimant’s physical condition would effectively allow new IRE results to be
impermissibly retroactively applied to a date three years prior, when Claimant
underwent his first IRE and was notified of the results. According to Claimant, this



                                         7
demonstrates that WCJ Lowman did not intend that Claimant’s physical impairment
be re-evaluated.
             However, WCJ Lowman concluded that Employer met its burden of
establishing that Claimant’s disability status was below 50% as of September 25,
2006. WCJ Lowman ordered a subsequent IRE only because Claimant proved a new,
psychological injury. It was Claimant who sought to add the new injury to his
disability claim. Claimant asserts that “WCJ Lowman clearly wanted the depression
to be a factor, with the 6th [E]dition it is not.” Claimant Corrected Br. at 21
(emphasis added).
             Notwithstanding, on September 18, 2015, this Court issued its en banc
opinion in Protz v. Workers’ Compensation Appeal Board (Derry Area School
District), 124 A.3d 406, 415 (Pa. Cmwlth. 2015), ruling that:

             the General Assembly . . . failed to prescribe any intelligible
             standards to guide the AMA’s determination regarding the
             methodology to be used in grading impairments. Section
             306(a.2) of the Act is wholly devoid of any articulations of
             public policy governing the AMA in this regard and of
             adequate standards to guide and restrain the AMA’s
             exercise of this delegated determination by which
             physicians and WCJs are bound. Indeed, Section 306(a.2)
             merely requires that the most recent version of the AMA
             Guides be used to determine a claimant’s impairment
             rating. 77 P.S. § 511.2.

Protz, 124 A.3d at 415. The Protz Court went on to hold that Section 306(a.2) of the
Act was “an unconstitutional delegation of legislative authority insofar as it
proactively approved versions of the AMA Guides beyond the Fourth Edition without
review.” Id. at 416.
             Accordingly, we conclude that Claimant’s whole body impairment was
not properly assessed in the second IRE using the 6th Edition of the AMA Guides as
“the most recent edition[,]” since as this Court held in Protz, “the General Assembly


                                           8
adopted as its own the methodology enumerated by the AMA at the time it enacted
Section 306(a.2)—that is, the methodology contained in the Fourth Edition of the
[AMA] Guides.” 77 P.S. § 511.2, Protz, 124 A.3d at 416 (emphasis added). Thus,
we vacate the Board’s February 27, 2014 and May 8, 2014 orders. We remand this
matter to the Board and direct the Board to order a new IRE be performed in
accordance with the methodology contained in the Fourth Edition of the AMA
Guides.6
               For all of the above reasons, the Board’s orders are vacated and this
matter is remanded to the Board to direct that a new IRE be performed in accordance
with the methodology contained in the Fourth Edition of the AMA Guides.


                                             ___________________________
                                             ANNE E. COVEY, Judge




      6
          Given our disposition of this action, Claimant’s remaining arguments are rendered moot.
                                                 9
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Glen Ruse,                             :
                           Petitioner  :
                                       :
           v.                          :
                                       :
Workers’ Compensation Appeal Board :
(Valley Medical Facilities Sewickley), :      No. 952 C.D. 2014
                          Respondent :


                                        ORDER

              AND NOW, this 13th day of January, 2016, the Workers’ Compensation
Appeal Board’s February 27, and May 8, 2014 orders are vacated and this matter is
remanded to the Board to direct that a new impairment rating evaluation be
performed in accordance with the methodology contained in the Fourth Edition of the
AMA Guides.
              Jurisdiction is relinquished.


                                         ___________________________
                                         ANNE E. COVEY, Judge
