Beasley v. Workers' Compensation Appeal Board
152 A.3d 391
Pa. Commw. Ct.2016Background
- Claimant Vincent Beasley was injured at work in April 2009; Employer issued an NCP noting total disability beginning April 15, 2009.
- After Claimant received total disability payments, Employer requested a Department-designated Impairment Rating Evaluation (IRE) on April 15, 2011 (within 60 days after 104 weeks), and the Department designated an IRE physician.
- The originally designated IRE physician died; parties agreed to preserve the status quo and sought redesignation; Dr. Daisy Rodriguez was later designated and performed an IRE on October 23, 2012, rating impairment at 28% and finding MMI.
- The WCJ denied Employer’s petition to change Claimant’s status from total to partial, finding the IRE request timing indeterminate, the Department’s designation premature (because parties did not first try to agree), and Dr. Rodriguez incompetent due to training/records issues.
- The Board reversed, finding the IRE timely, Dr. Rodriguez competent (the Department had approved her), and that Section 306(a.2)(1) does not limit Department designation to only after good-faith agreement attempts.
- The Court vacated the Board’s order and remanded to determine whether the Fourth and Sixth Editions of the AMA Guides differ for the injuries here (per Protz), and if so, to obtain testimony applying the Fourth Edition.
Issues
| Issue | Beasley (Claimant) Argument | Peco (Employer) Argument | Held |
|---|---|---|---|
| Timeliness of IRE request | IRE request may be premature; WCJ found Employer didn’t prove date Claimant received 104 weeks of benefits | NCP and IRE request dates show request made on April 15, 2011, establishing timeliness | Employer met prima facie showing; Claimant failed to rebut. IRE request deemed timely |
| Validity/approval of Dr. Rodriguez as IRE physician | Dr. Rodriguez not competent: training did not satisfy 34 Pa. Code §123.103(d) and Department designation was improper | Department designated and “approved” Dr. Rodriguez; absent evidence of impropriety, designation stands | Board properly credited Department approval; Dr. Rodriguez competent to testify |
| Sufficiency of records and MMI determination | Dr. Rodriguez relied on records only going back 12 months; thus her MMI determination was unreliable | Dr. Rodriguez’s clinical exam, intake forms, and 12-month records were sufficient; Claimant offered no rebuttal evidence | Court upheld Board: 12-month records plus exam and unrebutted opinion suffice to establish MMI |
| Application of Protz / edition of AMA Guides | Protz renders use of Sixth Edition problematic; Claimant may challenge statute/guide edition on appeal even if not raised below | Employer argues issue waived because not raised before WCJ | Because the appeal involves statutory validity, claimant may raise Protz issue under 2 Pa.C.S. §703 and Pa.R.A.P. 1551; remand ordered to determine whether Fourth vs. Sixth Edition differences affect impairment rating |
Key Cases Cited
- Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 888 A.2d 758 (Pa. 2005) (IRE under §306(a.2) can operate to change status when impairment <50%)
- Dowhower v. Workers’ Compensation Appeal Board (Capco Contracting), 919 A.2d 913 (Pa. 2007) (premature IRE is void if requested before claimant received 104 weeks)
- Combine v. Workers’ Compensation Appeal Board (National Fuel Gas Distribution Corp.), 954 A.2d 776 (Pa. Cmwlth. 2008) (physician must find MMI before calculating impairment)
- Logue v. Workers’ Compensation Appeal Board (Commonwealth), 119 A.3d 1116 (Pa. Cmwlth. 2015) (interpretation of Department designation authority under IRE provisions)
- Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015) (held statutory delegation to adopt AMA Guides beyond Fourth Edition unconstitutional)
- Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 133 A.3d 733 (Pa. 2016) (Supreme Court granted review of Protz decision)
- IA Construction Corp. v. Workers’ Compensation Appeal Board (Rhodes), 139 A.3d 154 (Pa. 2016) (distinguishes burden rules for modification petitions under §306(a.2))