Riley v. Workers' Compensation Appeal Board
154 A.3d 396
Pa. Commw. Ct.2016Background
- Susan Riley (Claimant) sustained work-related facial/neck injuries in 2000 and received benefits under a 2002 Notice of Compensation Payable listing contusion/herniation and fractures.
- An Independent Rating Evaluation (IRE) in April 2003 by Dr. Barry Schnall using the AMA Guides (Fifth Edition) assigned a 21% impairment and led to a May 2003 Notice of Change and conversion to partial disability benefits.
- In August 2012 Riley sought to amend the NCP to add shoulder injuries and separately challenged the adequacy of the 2003 IRE; hearings followed including an IME by Dr. Richard Schmidt who opined the shoulders were not work-related.
- The Workers’ Compensation Judge (WCJ) credited Dr. Schmidt over Riley’s treating physician, Dr. Menkowitz, denied expansion of compensable injuries and denied Riley’s petitions.
- The Workers’ Compensation Appeal Board (Board) affirmed, and also denied Riley’s 2015 motion to vacate the 2003 IRE (filed after this Court’s Protz decision), concluding she waived challenge by not appealing within the 60-day statutory period and did not show a new impairment ≥50%.
- This Court affirms: the WCJ’s credibility-based factual findings were supported by substantial evidence, and Protz did not revive Riley’s time-barred challenge to her 2003 IRE.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WCJ erred in rejecting treating physician’s opinion that Riley suffered compensable bilateral shoulder injuries | Riley: Dr. Menkowitz’s testimony shows work-related shoulder injuries warranting NCP amendment | Employer/Board: Dr. Schmidt’s IME and preexisting shoulder pathology support denying expansion; WCJ credibility choice was proper | Denied — WCJ’s credibility determination favoring Dr. Schmidt was supported by substantial evidence and reasoned findings |
| Whether the 2003 IRE (using Fifth Edition AMA Guides) is invalid under Protz | Riley: Protz shows use of a later AMA edition is unconstitutional; she seeks vacatur of the 2003 IRE | Board: Even if Protz has merit, Riley waived challenge by not appealing within 60 days and presents no ≥50% new impairment | Denied — Protz does not revive a decades-late challenge; Riley waived statutory challenge and provided no new ≥50% rating |
| Whether claimant preserved constitutional challenge to the IRE | Riley: Constitutional defect in statute/IRE should be considered when raised in 2015 motion | Board: Constitutional challenge raised too late; section 306(a.2)(2) requires timely challenge | Denied — late constitutional challenge is precluded by the statutory 60-day rule |
| Whether Claimant showed entitlement to modification of benefits based on new impairment evidence | Riley: Sought modification based on additional injuries and alleged greater impairment | Board: No probative evidence of impairment ≥50% or compensable new injuries | Denied — no evidence of required threshold impairment or compensable new injuries |
Key Cases Cited
- Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015) (statutory delegation to "most recent" AMA Guides invalid; remand to apply Fourth Edition)
- Johnson v. Workers’ Compensation Appeal Board (Sealy Components Group), 982 A.2d 1253 (Pa. Cmwlth. 2009) (claimant waived IRE challenge by failing to timely contest within statutory period)
- Daniels v. Workers’ Compensation Appeal Board (Tristate Transport), 828 A.2d 1043 (Pa. 2003) (WCJ is exclusive factfinder; must issue reasoned credibility findings)