H. Mazuruk v. WCAB (Gillin and Sons Contracting, Inc.) ( 2016 )


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  •                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Henry Mazuruk,                               :
    Petitioner              :
    :    No. 1216 C.D. 2015
    v.                             :
    :    Submitted: February 5, 2016
    Workers’ Compensation Appeal                 :
    Board (Gillin and Sons Contracting,          :
    Inc.),                                       :
    Respondent                :
    BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE DAN PELLEGRINI, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE McCULLOUGH                                             FILED: August 26, 2016
    Henry Mazuruk (Claimant) petitions for review from the June 15, 2015
    order of the Worker’s Compensation Appeal Board (Board), which affirmed a
    Workers’ Compensation Judge’s (WCJ) decision granting Gillin & Sons Contracting,
    Inc.’s (Employer) petition to modify Claimant’s compensation benefits from
    “temporary total” to “temporary partial” based on an impairment rating of 24%
    performed pursuant to section 306(a.2) of the Workers’ Compensation Act (Act).1
    1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §511.2, added by the Act of June 24,
    1996, P.L. 350. In Protz v. Workers’ Compensation Appeal Board (Derry Area School District),
    
    124 A.3d 406
    , 416 (Pa. Cmwlth. 2015) (en banc), we held that section 306(a.2) of the Act was an
    unconstitutional delegation of legislative authority because the General Assembly “proactively
    approved versions of the AMA Guides beyond the Fourth Edition without review.” (Emphasis in
    (Footnote continued on next page…)
    Facts and Procedural History
    On December 10, 2007, Claimant sustained a work-related injury when
    he fell from a ladder during the course of his employment. Employer issued a notice
    of compensation payable (NCP), accepting liability for his injuries consisting of a
    non-displaced fracture of the eleventh and twelfth ribs and awarding compensation
    benefits at a rate of $598.61 per week.      On or about June 13, 2008, Employer filed a
    termination petition, alleging that Claimant had fully recovered from his work injury.
    On or about June 23, 2008, Claimant filed a review petition to amend the NCP to
    correct the description of injury to include a back injury, cervical spine injury with
    radiculopathy, lumbar radiculopathy, and left shoulder injury. By order dated May
    22, 2009, a WCJ denied Employer’s termination petition concluding that Employer
    failed to meet its burden to prove that Claimant had fully recovered from his work-
    related injuries, granted Claimant’s review petition, and modified the NCP to include
    injuries to “Claimant’s neck, left shoulder, upper back, lower back, including,
    specifically, compression trauma to the thoracic and lumbar vertebrae, including an
    L4 vertebral fracture, lumbar radiculopathy at L5, lumbar sprain, cervical
    radiculopathy at C7-8 and disc herniations at C3 to C7, left shoulder sprain and
    posttraumatic myofascitis.” (Reproduced Record (R.R.) at 125a.)
    Employer subsequently filed a request for designation of a physician to
    perform an impairment rating evaluation (IRE) and Dr. Lance Yarus was designated
    to perform the IRE. Dr. Yarus performed the IRE and determined that Claimant had
    an impairment rating of 24%. On May 11, 2012, Employer filed a petition to modify
    (continued…)
    original). On March 22, 2016, the Pennsylvania Supreme Court granted appeal to review. Protz v.
    Workers’ Compensation Appeal Board (Derry Area School District), 
    133 A.3d 733
     (Pa. 2016).
    2
    Claimant’s compensation benefits, requesting that Claimant’s benefits be modified to
    “temporary partial” based on Dr. Yarus’s impairment rating.        Claimant filed an
    answer denying the material allegations of Employer’s petition. (R.R. at 3a-4a, 94a-
    96a.)
    In support of its petition to modify compensation benefits, Employer
    submitted the deposition testimony of Dr. Yarus, a board certified orthopedic surgeon
    with certifications in pain management, disability, impairment evaluation, and
    forensic examination. Dr. Yarus testified that he is designated by the Pennsylvania
    Bureau of Workers’ Compensation (Bureau) to perform IREs under the Sixth Edition
    of the American Medical Association Guides to the Evaluation of Permanent Injuries
    (AMA Guides) and that he has met the Pennsylvania Department of Labor and
    Industry’s certification standards to perform IREs because he took a Bureau-approved
    training course. Dr. Yarus noted that a revised version to the Sixth Edition of the
    AMA Guides exists; however, he stated that the training course he took was taught by
    the author of the first version of the Sixth Edition of the AMA Guides. (R.R. at 62a-
    63a.)
    Dr. Yarus confirmed that he performed an IRE of Claimant on March
    19, 2012, and testified that he reviewed Claimant’s medical records, conducted a
    physical examination, and generated a report containing the results. Dr. Yarus further
    testified that his report specified that the compensable injury involved the cervical
    and lumbar spine, as well as rib fractures, and explained the method for ascertaining
    an individual’s impairment rating:
    [I]mpairment rating is for the diagnoses that were pertaining
    to an underlying process, that is, the injury itself. When
    that injury occurs, the diagnosis will be consistent with
    whatever part of the body the actual injury occurred. Once
    you have that, you have to determine what part of that
    3
    injury is still present and accounted for. And once you have
    a diagnosis, that drives the rest of the process, in this edition
    particularly, of how you would modify it, how would you
    interact with whether or not testing was considered
    applicable or not, because in some cases it wouldn’t be
    because it’s already incorporated into the diagnosis.
    Then you come up with a mathematically designed number
    that reflects the whole person impairment. . . . You’re
    looking at a midline default number, and you’re going to go
    to the right or left of that number as you move along the
    process of determining what’s germane to the injury and
    what’s still present . . . .
    (R.R. at 66a.)
    Dr. Yarus testified that, after performing an IRE, the first determination
    that must be made is whether the individual has reached maximum medical
    improvement (MMI) and, pursuant to the Sixth Edition of the AMA Guides, MMI is
    defined as a point in time when the injured individual has reached a status where
    additional treatment will not improve his or her condition beyond the current state.
    He clarified that an individual may continue to exhibit symptoms and treatment for
    those symptoms may be available; however, the underlying impairment itself does
    not change. Dr. Yarus further testified that he believed Claimant had reached MMI
    when he saw him and concluded that, within the confines of the Sixth Edition of the
    AMA Guides, Claimant had a total impairment rating of 24%. He explained that:
    I start out with the cervical spine. We come up with a
    diagnosis, which is the intervertebral disc herniations or
    documented Aomsi at a single or multiple level, medically
    documented findings, with or without surgery, with
    documented radiculopathy at the clinically appropriate level
    present at the time of the exam. It basically says that he had
    a disc problem, and we know that there was at C6, and the
    radiculopathy came along with that. . . .
    4
    The percentage of impairment for the cervical spine is 12
    percent. Same thing for lumbar spine going through that
    whole process. . . .
    We came up with 13 percent, because again, starting at 12,
    moving to the right we’re at 13. We talked about the
    fracture at L4 not being ratable. They were already
    considered in the diagnoses. The other thing that was part
    of the information is the rib fractured [sic]. They were
    healed.
    And again, when you’re rating, you can’t rate just because
    somebody had something in the past. It has to be something
    that’s discernible at the time of the exam and something
    that’s still present as far as the degree of impairment that
    the person exhibits based on the history of injury.
    So it’s not that we discounted it. It’s just not ratable
    because there are not affects from that particular part of the
    impairments and injuries that occurred. One other thing is
    that when we separate out – if you look at the items that I
    listed, the radiculopathy, we don’t rate that separately. So
    there’s no peripheral nerve involvement that’s separately
    ratable. You include that in the diagnosis. It’s already
    accepted, and you can’t separate it out according to the
    rules of the guides.
    So talking that all into consideration, I used the appendix
    chart as I said, and I added the 13 percent and the 12
    percent by use of the table, and it comes out to 24.[2]
    (R.R. at 67a-68a.)
    Dr. Yarus stated that his impairment rating takes into account everything
    that is ratable and testified that Claimant had cervical radiculopathy at C6-C7
    notwithstanding that the NCP was modified to indicate cervical radiculopathy at C8.
    2
    Dr. Yarus explained that, when making an impairment rating based on the table contained
    in the Sixth Edition of the AMA Guides, the numerical value representing an individual’s total
    impairment rating is reduced by one so an impairment rating may never exceed 100. (R.R. at 68a.)
    5
    He explained that the diagnosis of cervical radiculopathy at C6-C7 was based on an
    MRI, associated with a broad herniation at that level, and different than radiculopathy
    at C7-C8. Dr. Yarus testified that he accepted the description of the compensable
    injury included in the records he reviewed but explained that:
    What transpired before or what’s on an MRI or whatever is
    the case for one particular aspect of the exam is not my
    obligation to include other than what I see on the exam. It’s
    not an IME. This is a process where I decide what the
    actual finding of impairment is at the time of exam.
    (R.R. at 71a.)
    Dr. Yarus stated that he did not disagree with the WCJ’s factual findings
    that Claimant suffered disc herniations at C3-C7, that those conditions are permanent
    and not reversible, and that those conditions do not regenerate over time. However,
    he explained that his impairment rating is based on what impairment was clinically
    manifesting at the time of examination and testified that the AMA Guides do not
    authorize a treating physician to rate for past or future impairment. Rather, according
    to Dr. Yarus, a rating may only be based on what an individual actually presents at
    the time of examination. Similarly, Dr. Yarus testified that an MRI had previously
    been performed on Claimant which did not indicate a disc herniation; but, he
    incorporated a disc herniation into his impairment rating because Claimant exhibited
    clinical findings at the time of his examination. (R.R. at 71a-75a.)
    Dr. Yarus acknowledged that the accepted injury was not a disc
    herniation, but rather an L4 compression fracture resulting in radiculopathy at L5;
    however, he stated that the fracture had nothing to do with the radiculopathy.
    Instead, he testified that the fracture is an old compression and explained that:
    Again, it’s not my intention, nor is it my focus when I’m
    given the responsibility of giving an impairment rating to
    6
    dispute the findings of the judge. Those are the findings
    that encompass the work injury. The rating is a different
    process that has to do with what’s still clinically relevant,
    findings that are still positive that have to do with the
    injury.
    ...
    I’m not disputing that he didn’t have a fracture. What I’m
    telling Her Honor is that, in fact, a radiculopathy can’t be
    caused by this type of fracture. I’m not disputing that, there
    was or was not. I’m saying that the radiculopathy is coming
    from herniation. You can’t have a radiculopathy any other
    way except from compression or chemical irritation or just
    direct inflammation. But a fracture in and of itself where
    there is designated doesn’t cause radiculopathy.
    (R.R. at 75a-76a.)
    Dr. Yarus acknowledged that x-rays and an MRI performed on Claimant
    contained indications of an L4 fracture. However, he testified that the L4 fracture
    was not ratable because it had healed and did not produce any ratable symptoms at
    the time of his exam. Moreover, Dr. Yarus confirmed that there were other injuries
    that had been accepted as part of the work injury, such as a shoulder sprain and a
    compression injury of the thoracic spine, that he did not include in his diagnoses
    because they did not produce ratable symptoms. (R.R. at 76a-79a.)
    After the record was closed, Claimant submitted a copy of AMA
    Classifications and Corrections to the Sixth Edition of the AMA Guides (revised
    Sixth Edition) that had been published in January 2008 with a request that the WCJ
    take judicial notice of the same. Employer objected to Claimant’s submission and the
    WCJ reopened the record for oral argument on the admissibility of the revised Sixth
    Edition. At the hearing, Claimant argued that Dr. Yarus did not apply the most recent
    edition of the AMA Guides because he used the Sixth Edition of the AMA Guides
    instead of the revised Sixth Edition. Employer responded that the revised Sixth
    7
    Edition contained only minor changes to the prior version. The WCJ admitted the
    document over Employer’s objection, refused to take judicial notice of the same, and
    gave the parties sixty days to raise an objection to the document’s authenticity, which
    neither party did. (R.R. at 49a-59a.)
    By order dated March 26, 2014, the WCJ granted Employer’s petition
    and modified Claimant’s compensation benefits from “temporary total” to
    “temporary partial” as of March 19, 2012. The WCJ found Dr. Yarus credible and
    noted that his testimony was uncontradicted. Additionally, the WCJ determined that
    Dr. Yarus used the most recent edition of the AMA Guides and based his impairment
    rating only on objective evidence, as required by the AMA Guides.
    Claimant appealed the WCJ’s determination to the Board, arguing that
    the IRE was invalid because Dr. Yarus failed to rate all of the adjudicated injuries and
    did not use the most recent version of the AMA Guides. The Board rejected his
    arguments and affirmed the WCJ, reasoning that an IRE considers only the
    impairments found at the time of examination and that Claimant failed to establish
    that Dr. Yarus did not use the most recent version of the AMA Guides.
    On appeal,3 Claimant argues that the IRE was not performed under the
    most recent edition of the AMA Guides because this Court’s 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), mandates that the
    3
    Our scope of review is limited to determining whether the necessary findings of fact are
    supported by substantial evidence, whether constitutional rights were violated, or whether an error
    of law was committed. City of Philadelphia v. Workers’ Compensation Appeal Board (Brown), 
    830 A.2d 649
    , 653 n.2 (Pa. Cmwlth. 2003).
    8
    Fourth Edition is the most recent edition of the AMA Guides as a matter of law.4
    Alternatively, Claimant argues that Dr. Yarus should have performed the IRE
    pursuant to the revised Sixth Edition of the AMA Guides. Claimant also argues that
    an impairment rating must be based on a compensable injury; Dr. Yarus’s findings
    that Claimant’s injuries were old and did not cause Claimant’s condition were
    precluded by prior adjudications; and the WCJ’s decision was not based on
    substantial evidence.
    Discussion
    Section 306(a.2) of the Act 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.”
    4
    The Protz decision was issued on September 18, 2015, approximately two months after
    Claimant’s petition for review was filed and approximately one month before Claimant’s appellate
    brief was filed. We invited the parties to advise the Court whether this matter should be stayed
    pending the resolution of Protz. Although one party indicated that it would not object to a stay, the
    other party objected to the same. Therefore, we are proceeding to dispose of this matter.
    9
    (2) 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
    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.
    77 P.S. §§511.2(1)-(2).
    However, in Protz, this Court determined that section 306(a.2) of the Act
    constituted “an unconstitutional delegation of legislative authority insofar as it
    proactively approved versions of the AMA Guides beyond the Fourth Edition without
    review.” 
    124 A.3d at 416
     (emphasis in original). Accordingly, we remanded the
    matter to the WCJ to apply the Fourth Edition of the AMA Guides because we
    determined that was the edition that the General Assembly adopted as its
    methodology when it enacted section 306(a.2) of the Law.5                   Thus, this Court’s
    decision in Protz mandates that the Fourth Edition of the AMA Guides is the most
    recent edition of the AMA Guides as a matter of law.
    Notwithstanding our decision in Protz, Employer argues that this Court’s
    decision in Wingrove v. Workers’ Compensation Appeal Board (Allegheny Energy),
    5
    On March 22, 2016, the Pennsylvania Supreme Court granted appeal to review whether
    this Court erred in remanding the case to the WCJ with instructions to apply the Fourth Edition of
    the AMA Guides. Protz v. Workers’ Compensation Appeal Board (Derry Area School District),
    
    133 A.3d 733
     (Pa. 2016).
    10
    
    83 A.3d 270
     (Pa. Cmwlth. 2014), instructs that a remand to apply the Fourth Edition
    of the AMA Guides in the instant matter is not warranted because Claimant failed to
    allege how an IRE performed pursuant to the Fourth Edition of the AMA Guides
    would affect his IRE and, therefore, he failed to sufficiently develop his argument.
    In Wingrove, a claimant challenged the constitutionality of section
    306(a.2) of the Act when his status was changed from total to partial disability
    following an IRE performed pursuant to the Sixth Edition of the AMA Guides.
    Specifically, he alleged that the legislature improperly ceded its law-making power to
    the AMA and argued that subsequent editions of the AMA Guides provide different
    standards for evaluating impairment such that a claimant who may have previously
    qualified for total disability under the most recent edition of the AMA Guides may
    not qualify for total disability under a subsequent edition. We rejected the claimant’s
    constitutional challenge, noting that a legislative enactment enjoys a strong
    presumption that it does not violate the Constitution and stating that the party
    challenging a statute’s constitutionality has a “very heavy burden” in overcoming the
    presumption; specifically, the challenger must show that the statute “clearly,
    palpably, and plainly” violates the Constitution. 
    Id. at 276-77
    . Accordingly, we
    determined that the claimant failed to sufficiently develop his constitutional argument
    because he failed to allege how an alternative version of the AMA Guides would
    have affected his IRE. Moreover, we reasoned that the claimant did not establish a
    plain and palpable constitutional violation because his argument was conclusory and
    he addressed none of the pertinent statutory interpretation issues.
    Employer argues that Wingrove instructs that a remand is not warranted
    in the instant matter because Claimant failed to allege how his IRE would have been
    11
    affected had it been performed pursuant to the Fourth Edition of the AMA Guides.
    We disagree.
    In Wingrove, our holding was predicated on the nature of the claimant’s
    challenge; the claimant failed to overcome his very heavy burden to establish a plain
    and palpable constitutional violation. However, the relevant constitutional issue has
    been resolved.       See Protz, 
    124 A.3d 406
    .            Therefore, here, Claimant need not
    overcome a “very heavy burden” and establish a plain and palpable constitutional
    violation because he has not asserted a constitutional challenge. Rather, he alleged
    that the IRE was invalid as a matter of law because it was not performed pursuant to
    the Fourth Edition of the AMA Guides based on our decision in Protz. As such,
    unlike the situation presented in Wingrove, it is not fatal to Claimant’s argument that
    he failed to allege how an IRE performed pursuant to the Fourth Edition of the AMA
    Guides would affect his impairment rating. Instead, Claimant identified an error of
    law that was committed before the lower tribunal and a remand is warranted to
    correct that error.6 See Stanish v. Workers’ Compensation Appeal Board (James J.
    Anderson Construction Co.), 
    11 A.3d 569
    , 577 (Pa. Cmwlth. 2010).
    6
    The record indicates that Employer timely requested that an IRE be performed, i.e., within
    sixty days after Claimant received 104 weeks of total disability. 77 P.S. §511.2(1). Presuming the
    IRE physician calculated an impairment rating of less than 50% under the Fourth Edition of the
    AMA Guides, Employer would be entitled to self-executing relief in the nature of Claimant’s
    disability status being changed to partial disability. Gardner v. Workers’ Compensation Appeal
    Board (Genesis Health Ventures), 
    888 A.2d 758
    , 766-67 (Pa. 2005). If we were to reverse the
    Board’s order and find that the impairment rating calculated was invalid because Dr. Yarus did not
    use the Fourth Edition of the AMA Guides, we would deprive Employer of its entitlement under the
    Act to obtain self-executing relief. Any subsequent IRE would be made beyond sixty days of
    Claimant’s receipt of 104 weeks of total disability. Therefore, Employer could only change
    Claimant’s disability status from total to partial through the traditional administrative process. 
    Id.
    Here, Employer complied with the statutory time requirements for requesting an IRE and should not
    be penalized for circumstances beyond its control, i.e., this Court’s decision in Protz holding that
    section 306(a.2) of the Act “constituted an unconstitutional delegation of legislative authority
    (Footnote continued on next page…)
    12
    Accordingly, the Board’s order is vacated. The matter is remanded to
    the Board with specific instructions to remand to the WCJ to permit Employer to
    have Claimant submit to a new IRE performed pursuant to the Fourth Edition of the
    AMA Guides.7
    ________________________________
    PATRICIA A. McCULLOUGH, Judge
    (continued…)
    insofar as it proactively approved versions of the AMA Guides beyond the Fourth edition without
    review.” 
    124 A.3d at 416
     (emphasis in original).
    7
    Based on the foregoing determination, we need not address Claimant’s remaining
    arguments regarding whether an impairment rating must be based on a compensable injury, whether
    Dr. Yarus’s findings that Claimant’s injuries were old and did not cause Claimant’s condition were
    precluded by prior adjudications, and whether the WCJ’s decision was based on substantial
    evidence.
    13
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Henry Mazuruk,                           :
    Petitioner             :
    :    No. 1216 C.D. 2015
    v.                           :
    :
    Workers’ Compensation Appeal             :
    Board (Gillin and Sons Contracting,      :
    Inc.),                                   :
    Respondent            :
    ORDER
    AND NOW, this 26th day of August, 2016, the June 15, 2015 order of
    the Workers’ Compensation Appeal Board (Board) in the above-captioned matter
    is vacated. The matter is remanded to the Board with specific instructions to
    further remand to the Workers’ Compensation Judge to permit Gillin and Sons
    Contracting, Inc. to have Henry Mazuruk submit to a new impairment rating
    evaluation performed pursuant to the Fourth Edition of the American Medical
    Association Guides to the Evaluation of Permanent Impairment.
    Jurisdiction relinquished.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge
    

Document Info

Docket Number: 1216 C.D. 2015

Judges: McCullough, J.

Filed Date: 8/26/2016

Precedential Status: Precedential

Modified Date: 8/27/2016