L. Edinger v. Rhodes Salvage/E. Rhodes (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lloyd Edinger, :
Petitioner :
:
v. : No. 916 C.D. 2021
: Submitted: March 25, 2022
Rhodes Salvage/Edward Rhodes :
(Workers’ Compensation Appeal :
Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: April 25, 2023
Lloyd Edinger (Claimant) petitions for review of a July 27, 2021 Order of the
Workers’ Compensation Appeal Board (Board), reversing a decision by a Workers’
Compensation Judge (WCJ), suspending Claimant’s benefits, and granting Rhodes
Salvage/Edward Rhodes (Employer) a dollar-for-dollar credit against Claimant’s
future benefits from September 9, 2019, the date Claimant failed to attend a
scheduled impairment rating evaluation (IRE), until Claimant attends an IRE.
Before this Court, Claimant does not dispute that he did not attend the IRE but
instead argues the Board erred because Employer’s Suspension Petition was
premature, pursuant to Bechtel Power Corporation v. Workmen’s Compensation
Appeal Board (Miller), 452 A.2d 286 (Pa. Cmwlth. 1982), as Claimant was
appealing a separate WCJ order directing that he attend the IRE at the same time.
Claimant also argues the Board erred in concluding Claimant had to seek
supersedeas because the WCJ did not suspend Claimant’s benefits. Finally,
Claimant asserts the Board exceeded the scope of its authority when it ordered the
dollar-for-dollar credit against future compensation benefits until Claimant attended
the IRE and failed to consider Claimant’s financial circumstances in making the
award.1 Upon review, we affirm.
I. BACKGROUND
Given the issues involved and the parties’ arguments, it is necessary to review
the chronology of events leading up to this appeal. On May 9, 2008, Claimant
suffered a work injury, specifically, lumbar spondylosis with radiculopathy, while
in the course of employment with Employer. (Certified Record (C.R.) Item 19,
8/6/19 WCJ Decision, Finding of Fact (FOF) ¶ 1.) On April 11, 2019, Employer
requested Claimant submit to an IRE pursuant to newly enacted Section 306(a.3) of
the Workers’ Compensation Act (WC Act), which was added by Section 1 of the
Act of October 24, 2018, P.L. 714, No. 111 (Act 111).2 (Id. ¶ 3.)
An IRE was scheduled for May 28, 2019, and Claimant was notified of the
appointment. (8/6/19 WCJ Decision, FOF ¶ 4.) Claimant’s counsel notified
Employer that Claimant would not attend the scheduled IRE because he believed
Act 111 was unconstitutional, similar to the former IRE provision. (Id.) On May
28, 2019, Employer filed a Petition for Examination seeking an order from the WCJ
to compel Claimant to attend an IRE, which the WCJ granted by Order dated August
1
We have reordered Claimant’s arguments for ease of discussion.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.3. The General Assembly enacted
Act 111 after the previous IRE provisions in the WC Act, former Section 306(a.2) of the WC Act,
formerly 77 P.S. § 511.2, which were added by Section 4 of the Act of June 24, 1996, P.L. 350, was
struck down as an unconstitutional delegation of legislative authority in Protz v. Workers’
Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017). Act 111
repealed former Section 302(a.2).
2
5, 2019. In the decision accompanying the order, the WCJ stated that “Claimant,
while having a legally cognizable legal argument as to why he should not attend the
IRE . . . , the law, as written, obliges him to attend.”3 (Id. ¶ 6.) The WCJ further
explained that “[t]he failure of [] Claimant to attend a properly scheduled [IRE]
would potentially preclude a legal determination regarding the propriety of Act 111”
and “presupposes that [] Claimant’s impairment rating would be less than 35%,”
which, under Act 111, would result in a change in Claimant’s disability status from
total to partial disability. (Id. ¶ 7.) The WCJ also stated that the “[i]nterest of judicial
economy dictate[s] that the case would be in the proper posture for litigation once
the [IRE] is conducted and [] Employer . . . attempts to modify [] Claimant’s benefits
based upon the results of that exam.” (Id. ¶ 8.)
On August 12, 2019, Employer sent Claimant a letter advising the IRE had
been rescheduled to September 9, 2019. (C.R. Item 21; see also C.R. Item 22.) On
August 15, 2019, Claimant appealed the August 6, 2019 Decision ordering the IRE
to the Board. (C.R. Item 13.) On August 26, 2019, Employer filed a Motion to
Quash Claimant’s Appeal with the Board, alleging the WCJ’s order directing
Claimant attend the IRE was an interlocutory order. (C.R. Item 14.)
On September 9, 2019, Claimant did not appear for the IRE. (C.R. Item 20;
see also 12/18/19 WCJ Decision, FOF ¶ 5.) On September 27, 2019, Employer filed
a Suspension Petition, alleging Claimant failed to appear for the IRE, as ordered.
(C.R. Item 2.) On December 3, 2019, Claimant filed an answer, wherein Claimant
asserted the Suspension Petition was “barred and collaterally estopped” because
“this identical issue is currently on appeal.” (C.R. Item 4.) Accordingly, Claimant
requested that the Suspension Petition be dismissed with prejudice and sought an
3
The WCJ also noted he lacked the authority to address the constitutionality of Act 111.
(8/6/19 WCJ Decision, FOF ¶ 6.)
3
award of counsel fees. (Id.) In addition, Claimant stated he would attend a
rescheduled IRE if it was “stipulated that he [wa]s not waiving any rights to object
to the nature of the exam on constitutional or any other grounds.” (Id.) The
Suspension Petition was assigned to the same WCJ who issued the August 6, 2019
Order directing Claimant to attend the IRE. (C.R. Item 3.)
On December 18, 2019, the WCJ issued a Decision denying Employer’s
Suspension Petition. The WCJ recounted the procedural history of the matter and
noted that the Board had yet to act on Claimant’s appeal of the WCJ’s prior order
directing Claimant attend the IRE or Employer’s Motion to Quash related thereto.
(12/18/19 WCJ Decision ¶¶ 1-8.) As a result, the WCJ found he lacked the authority
to act on the Suspension Petition, explaining that any such decision might conflict
with the Board’s and would “divest [] Claimant of his right of appeal to the . . .
Board,” as guaranteed by the WC Act. (Id. ¶¶ 9-10.) In particular, the WCJ found
this Court’s decision in Bechtel “persuasive,” stating:
While the parties would have the ability to pursue other [p]etitions
pending the [d]ecision of the . . . Board, [] Employer’s [Suspension]
Petition goes to the heart of the issue currently pending before the . . .
Board. [] Employer would have the right to have [] Claimant attend a
physical examination and an expert interview for purposes of filing a
Modification Petition based upon earning capacity. Likewise, []
Claimant would have available to him the right to file a Petition to
Review to amend the description of injury. Petitions of this type could
not be adversely impacted by any [d]ecision rendered by the . . . Board
on the pending Petition.
(Id. ¶ 11.)
The WCJ further found “[t]he appeal provides [] Claimant with a reasonable
excuse for failing to attend the . . . IRE.” (Id. ¶ 12.) Accordingly, the WCJ denied
4
Employer’s Suspension Petition.4 Employer timely appealed to the Board on
January 3, 2020.
Shortly thereafter, the Board issued its January 7, 2020 order quashing
Claimant’s appeal of the WCJ order directing him to attend the IRE, concluding it
lacked jurisdiction over the interlocutory order. See Edinger v. Workers’ Comp.
Appeal Bd. (Rhodes Salvage/Edward Rhodes) (Pa. Cmwlth., No. 127 C.D. 2020,
filed June 30, 2020), slip op. at 3 (single-judge op.) (Edinger I). This Court affirmed
the Board’s order on June 30, 2020, holding “precedent clearly holds that a WCJ’s
order directing a claimant to attend an IRE is interlocutory and unappealable.” Id.
at 5.5
On July 27, 2021, the Board issued its Opinion and Order, which is the subject
of the instant appeal. The Board concluded the WCJ erred in failing to grant the
Suspension Petition where Claimant did not comply with a WCJ order directing him
to attend an IRE and did not request supersedeas while Claimant’s appeal of that
order was pending before the Board. (Board Opinion (Op.) at 4.) The Board
explained Employer made the request for Claimant to attend the IRE pursuant to
Section 306(a.3)(6) of the WC Act, and when Claimant initially refused, the WCJ
ordered Claimant’s attendance pursuant to Section 314 of the WC Act, 77 P.S. § 651.
(Board Op. at 5.) The Board further stated that, consistent with Section 314, when
a claimant refuses to attend an examination ordered by a WCJ, “without reasonable
cause or excuse,” the remedy is to deny the claimant “‘the right to compensation’
The WCJ also denied Claimant’s request for unreasonable contest fees.
4
5
Before the Court, Employer also filed a motion to quash, which the Court treated as an
application for summary relief pursuant to Rule 1532(b) of the Pennsylvania Rules of Appellate
Procedure, Pa.R.A.P. 1532(b). Edinger I, slip. op at 1. In doing so, the Court explained that
quashal was inappropriate because the appeal of the Board’s decision to this Court was not
interlocutory, untimely, or otherwise resulted in the Court lacking jurisdiction. Id. at 1 n.1.
5
during the period of time that [the claimant] continues to refuse or neglect to attend
an examination.” (Id. (quoting 77 P.S. § 651).)
Here, the Board determined that, contrary to the WCJ’s conclusion that
Claimant had a “right to appeal,” Claimant did not because the order from which he
appealed was interlocutory and, therefore, not appealable. (Id. at 5-6.) The Board
also concluded that an appeal of an order to attend an examination under Section
314 does not operate as an automatic supersedeas and an appeal of an interlocutory
order is not a reasonable excuse for noncompliance with an order directing
attendance. (Id. at 6 (citing Bradley v. Workers’ Comp. Appeal Bd. (County of
Delaware), 919 A.2d 293 (Pa. Cmwlth. 2006), and McCormick v. Workers’ Comp.
Appeal Bd. (City of Philadelphia), 734 A.2d 473 (Pa. Cmwlth. 1999)).) By
concluding the appeal was a reasonable excuse for failing to attend the IRE, the
Board concluded “the WCJ misapplied the law, resulting in an abuse of discretion.”
(Id.)
The Board further held that the WCJ erred in applying Bechtel, stating that
“[u]nlike a case involving a normal appeal, Claimant here attempted to have the
Board and [this] Court review a WCJ’s [o]rder that was interlocutory and non-
appealable,” and thus, “[t]here was never an appeal pending before the reviewing
authorities that could have been impacted by the litigation of the Suspension
Petition, or vice versa,” which is “[t]he evil” that Bechtel aimed to avoid. (Id. at 7.)
Assuming Claimant had a right to appeal the order directing him to attend the IRE,
the Board stated Claimant did not seek supersedeas to stay his obligation to attend
the IRE. (Id. at 8.) The Board continued:
The issues in the Suspension Petition are different than those decided
in the prior litigation. They are: 1) did Claimant attend the IRE that
was scheduled for September 9, 2019; and 2) if not, did he have a
6
reasonable excuse? The answer to the first question is no, as a matter
of undisputed fact. The answer to the second question is no, as a matter
of law.
(Id.)
The Board explained that if Claimant’s and the WCJ’s reasoning were
accepted, “it would necessarily mean that Claimant could keep appealing the [o]rder
to attend an IRE all the way to the Supreme Court and all the while prevent
[Employer] from obtaining an IRE and/or pursuing a suspension of benefits for
months or perhaps even years,” which “is not an outcome sanctioned by Bechtel.”
(Id. at 8-9.)
Based on the above, the Board held, as a matter of law, that Claimant had
neither a right to appeal the order directing him to attend the IRE nor a reasonable
basis for failing to attend, and the Suspension Petition was not precluded by
Claimant’s interlocutory appeal. (Id. at 9.) Consequently, the Board reversed the
WCJ’s Decision dismissing the Suspension Petition and ordered Claimant’s
disability benefits suspended as of the date he was supposed to attend the IRE. (Id.)
Further, because Employer was not entitled to reimbursement through the
Supersedeas Fund, the Board held that, “[i]n order to avoid Claimant’s unjust
enrichment, [Employer]’s sole remedy in this situation is to recoup the overpayment
of disability benefits during the period of Claimant’s suspension by taking a dollar-
for-dollar credit against Claimant’s future compensation payable.” (Id. (citing
Bureau of Workers’ Comp. v. Workmen’s Comp. Appeal Bd. (Lukens Steel Co.), 524
A.2d 1041 (Pa. Cmwlth. 1987), and Linton v. Workers’ Comp. Appeal Bd. (Amcast
Indus. Corp.) (Pa. Cmwlth., No. 1707 C.D. 2007, filed March 26, 2008)).)6
6
Unreported panel decisions of this Court may be cited for their persuasive value pursuant
to Rule 126(b)(1) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 126(b)(1), and
Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
7
Claimant filed a timely Petition for Review.
II. PARTIES’ ARGUMENTS
On appeal,7 Claimant asserts numerous errors by the Board. First, Claimant
argues the Board erred in distinguishing Bechtel and, in doing so, misapplied
statutory authority and case law. According to Claimant, Bechtel controls this matter
and because Claimant’s appeal of the WCJ order directing him to attend an IRE was
pending before the Board, the WCJ properly dismissed the Suspension Petition.
(Claimant’s Brief (Br.) at 11-12.) Claimant also argues the Board erred in awarding
a dollar-for-dollar credit against future compensation benefits. In support of this
argument, Claimant asserts the Board lacked authority to issue such an award under
Section 413(a) of the WC Act, 77 P.S. § 771, because recoupment or restitution here
would be an equitable remedy, and the Board lacks equitable powers unless there is
a mathematical error or misunderstanding contained in any agreement between the
parties or the notice of compensation payable (NCP), which here there was not.
(Claimant’s Br. at 13-14 (citing Fahringer, McCarty & Grey, Inc. v. Workmen’s
Comp. Appeal Bd. (Green), 529 A.2d 56 (Pa. Cmwlth. 1987)).) Assuming the Board
did have such authority, Claimant argues that the Board erred in concluding
Claimant should have sought supersedeas of the WCJ’s order directing him to attend
the IRE, reasoning he could not have asked for supersedeas as his benefits had not
been suspended. (Id. at 15-16.) Finally, Claimant contends the Board erred as it did
not consider Claimant’s financial circumstances before ordering the relief, which is
also contrary to Fahringer and the humanitarian purposes behind the WC Act. (Id.
7
Our review is limited to determining whether constitutional rights were violated, whether
errors of law were committed, or whether necessary findings of fact are supported by substantial
evidence. Universal Am-Can, Ltd. v. Workers’ Comp. Appeal Bd. (Minteer), 762 A.2d 328, 331
n.2 (Pa. 2000).
8
at 14-15.) Here, Claimant asserts the relief “is more punitive than remedial,”
explaining that had he attended the September 9, 2019 IRE, at worse, Claimant’s
benefit amount would not have been reduced; instead, his disability status would
have been modified from total to partial. (Id. at 15.)
Employer responds that this Court has previously determined that an appeal
from a WCJ order requiring a claimant to attend a medical exam is interlocutory and
does not provide a reasonable excuse for not attending because such an appeal does
not operate as an automatic supersedeas. Employer contends McCormick is
analogous to the instant matter and thus controls. Employer also argues that Bechtel
involved a “narrow” issue, specifically “whether an employer should be permitted
to appeal a WCJ’s finding of disability, alleging that no disability occurred, while
simultaneously petitioning for termination of benefits alleging that disability had
ceased.” (Employer’s Br. at 9.) Here, “the issues are not identical,” and “Employer
is not trying to ‘relitigate’ anything.” (Id. at 10.) Rather, “this case involves different
parties pursuing different relief at different levels.” (Id.) Employer notes that at the
time the Board issued its Order, this Court had already determined the order directing
Claimant to attend the IRE was interlocutory and nonappealable in Edinger I. (Id.
at 11-12.) Thus, Employer asserts the Board’s Order suspending Claimant’s
disability benefits was proper. Employer also argues that the dollar-for-dollar credit
is appropriate and consistent with precedent. To the extent Claimant argues financial
hardship, Employer argues “Claimant brought that hardship upon himself” by
refusing to attend the IRE he was ordered by the WCJ to attend. (Id. at 12.)
According to Employer, “[t]he humanitarian purposes of the [WC] Act are not
served by allowing claimants to exploit the system in this manner.” (Id. at 12-13.)
9
In a reply brief, Claimant asserts Employer could have immediately stopped
paying Claimant’s disability benefits but chose not to do so, and under Section
413(a), “stopping benefits in the future for conduct that occurred in the past was not
permissible.” (Claimant’s Reply Br. at 5-6 (emphasis in original).)8 Claimant
asserts this interpretation of Section 413(a) is “buttressed” by Section 314(a) of the
WC Act, which “reads in the present tense, not the past tense.” (Id. at 6.) Claimant
also reasserts that the Board failed to consider Claimant’s financial circumstance
before ordering the relief it did. (Id. at 7-8.)
III. DISCUSSION
Preliminarily, we briefly review the underlying statutory framework to help
understand the context of this litigation. Under Section 306(a.3)(1) of the WC Act,
after a claimant receives 104 weeks of total disability benefits, an employer/insurer
8
Claimant relies upon the Court’s memorandum opinion granting supersedeas for this
argument. See 12/29/21 Memorandum Opinion at 8-9 (single-judge op.) Therein, the Court held
that Claimant satisfied the first criterion for supersedeas relief under Pennsylvania Public Utility
Commission v. Process Gas Consumers Group, 467 A.2d 805 (Pa. 1983), as “although the Board
may have ultimately made the correct decision regarding the dollar-for-dollar credit,” Claimant
made a strong showing of success on the merits as to whether the Board “erred in failing to first
consider his financial situation before crafting such a remedy.” Id. at 8 (emphasis in original).
The Court also explained there are competing interpretations of Section 413(a) of the WC Act and
under one interpretation, “Employer was authorized to immediately stop paying [Claimant]
benefits” when he did not attend the IRE, which resulted in Employer being potentially entitled to
a very large credit, which supports the requirement that Claimant’s financial situation should have
been considered. Id. at 8-9 (emphasis in original). As to the remaining Process Gas criteria, the
Court concluded Claimant would suffer irreparable harm absent supersedeas as the workers’
compensation benefits were his sole source of income, Employer would not be harmed as it could
still recover its monies, just over a longer period of time, and there was no evidence public interest
would be harmed if supersedeas relief was granted. Id. at 9-10.
It appears that in discussing this issue, which Claimant now adopts as part of his argument,
the Court may have inadvertently transposed numbers and referred to Section 413(a) of the WC
Act as being ambiguous instead of Section 314(a) of the Act, although it correctly quoted the
language of Section 314(a).
10
may request the claimant attend an IRE to determine the degree of impairment 9 due
to the work injury, which a claimant must attend. 77 P.S. § 511.3(1). If the IRE
results in an impairment rating10 that is less than 35% under the American Medical
Association “Guides to the Evaluation of Permanent Impairment,” sixth edition
(second printing April 2009), a claimant’s disability status could be changed to
partial upon 60 days’ notice as required by Section 306(a.3)(2), 77 P.S. § 511.3(2).
Any claimant disputing the change can appeal the change in status pursuant to
Section 306(a.3)(4), 77 P.S. § 511.3(4). The change in status from total to partial
disability does not affect the amount of compensation paid. 77 P.S. § 511.3(3).
Rather, the change in status limits a claimant to receiving 500 weeks of partial
disability compensation. Section 306(b)(1) of the WC Act, 77 P.S. § 512(1); Diehl
v. Workers’ Comp. Appeal Bd. (I.A. Constr.), 972 A.2d 100, 104-05 (Pa. Cmwlth.
2009).
Section 306(a.3)(6) provides:
Upon request of the insurer, the employe shall submit to an independent
medical examination in accordance with the provisions of section 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. § 511.3(6). Section 314(a) of the WC Act also requires a claimant to submit
to a medical exam, if requested, and further provides the procedure to follow and
remedy available when a claimant fails to do so. It provides:
9
“[I]mpairment” is defined as “an anatomic or functional abnormality or loss that results
from the compensable injury and is reasonably presumed to be permanent.” 77 P.S. § 511.3(8)(i).
10
“[I]mpairment rating” is defined as “the percentage of permanent impairment of the
whole body resulting from the compensable injury.” 77 P.S. § 511.3(8)(ii).
11
At any time after an injury the employe, if so requested by his
employer, must submit himself at some reasonable time and place
for a physical examination or expert interview by an appropriate
health care provider or other expert, who shall be selected and paid for
by the employer. If the employe shall refuse upon the request of the
employer, to submit to the examination or expert interview by the
health care provider or other expert selected by the employer, a [WCJ]
assigned by the [D]epartment [of Labor and Industry (department)]
may, upon petition of the employer, order the employe to submit to
such examination or expert interview at a time and place set by the
[WCJ] and by the health care provider or other expert selected and paid
for by the employer or by a health care provider or other expert
designated by the [WCJ] and paid for by the employer. The [WCJ] may
at any time after such first examination or expert interview, upon
petition of the employer, order the employe to submit himself to such
further physical examinations or expert interviews as the [WCJ] shall
deem reasonable and necessary, at such times and places and by such
health care provider or other expert as the [WCJ] may designate; and in
such case, the employer shall pay the fees and expenses of the
examining health care provider or other expert, and the reasonable
traveling expenses and loss of wages incurred by the employe in order
to submit himself to such examination or expert interview. The refusal
or neglect, without reasonable cause or excuse, of the employe to
submit to such examination or expert interview ordered by the
[WCJ], either before or after an agreement or award, shall deprive him
of the right to compensation, under this article, during the
continuance of such refusal or neglect, and the period of such
neglect or refusal shall be deducted from the period during which
compensation would otherwise be payable.
77 P.S. § 651(a) (emphasis added).
With this backdrop in mind, we turn to the instant matter. It is undisputed that
Employer requested Claimant attend an IRE, Claimant refused, Employer filed a
petition seeking an order from a WCJ to attend that IRE, the WCJ issued such an
order, and Claimant did not comply with that order. At issue is whether Claimant
was required to comply with the order and attend the IRE when Claimant’s appeal
12
of that order was still pending with the Board, and assuming the Claimant was
required to attend the IRE, what the consequence of noncompliance should be.
With regard to the first issue, Claimant argues the Court’s decision in Bechtel
controls and required dismissal of Employer’s Suspension Petition as premature
because Claimant was in the process of appealing the WCJ’s order to attend the IRE.
In Bechtel, a referee11 granted a claim petition, awarding the claimant disability
benefits for injuries he sustained in the course of his employment. The employer
appealed the decision to the Board and, while the appeal was pending, the employer
filed a termination petition, which was dismissed as prematurely filed. Faced with
this “procedural quagmire,” the Court aptly identified the narrow issue on appeal as
whether an employer should “be permitted to attack the referee’s finding of
disability, alleging that no disability occurred, while at the very same time
petitioning for termination of benefits alleging that the disability has ceased[.]”
Bechtel, 452 A.2d at 287-88. The Court answered the question in the negative,
reasoning that it “would contravene the [WC] Act’s established appeal process,[]
making proceedings subject to collateral attack at any time,” which was “not
conducive to judicial or administrative economy.” Id. at 288 (footnote omitted). We
further explained the “evil” of “unnecessary and counter-productive relitigation of
identical issues” was avoided by this result. Id. Accordingly, we affirmed the
Board’s order dismissing the termination petition as premature.
Subsequently, in Gieniec v. Workers’ Compensation Appeal Board
(Palmerton Hospital), the Court explained that, pursuant to Bechtel, a second
petition should not be entertained if it is premature, meaning “it depended on the
outcome of the appeal” of the first petition, or the second petition raised issues
11
WCJs were formerly known as referees.
13
identical to those already on appeal, meaning the same arguments and evidence are
presented. Gieniec, 130 A.3d 154, 158-59 (Pa. Cmwlth. 2015). We also explained
that Bechtel had been expanded to preclude a party from taking a position that is not
consistent with the position on appeal. Id. at 158.
More recently, the Court held that Bechtel did not preclude litigation of an
employer’s modification petition, which was filed while the claimant’s reinstatement
petition was still pending. Hutchinson v. Annville Township (Workers’ Comp.
Appeal Bd.), 260 A.3d 360, 365 (Pa. Cmwlth. 2021). In Hutchinson, the employer
filed a modification petition based upon an IRE that the claimant underwent in
January 2019 pursuant to Act 111, which the claimant contended was premature
because the employer’s modification petition preceded disposition of a reinstatement
petition that the claimant had previously filed following the Supreme Court’s
invalidation of the prior IRE provisions. In concluding Bechtel did not apply, the
Court determined the two petitions did not raise identical issues. Id. at 365. The
Court reasoned the claimant’s reinstatement petition raised the legal question of
when total disability status should be reinstated based upon the former IRE
provisions being declared unconstitutional, whereas the employer’s modification
petition raised the factual question of the degree of the claimant’s impairment under
the new IRE. Id. at 365-66.
For similar reasons as in Hutchinson, we hold Bechtel is inapplicable to
Claimant’s appeal. While related, the issues in Claimant’s appeal were not identical
to the issues before the WCJ in the Suspension Petition proceedings. In the former
proceeding, Claimant was challenging the constitutionality of the IRE provision in
Act 111, which is a legal issue, whereas in the latter, the issue, as the Board observed,
was whether Claimant attended the IRE and if not, if he had a reasonable excuse for
14
not doing so, which is a mixed question of law and fact. Nor was the Suspension
Petition premature; rather, Claimant’s appeal of the WCJ’s order directing him to
attend the IRE was. As the Board correctly noted and this Court subsequently held
in Edinger I, Claimant’s initial appeal was of an interlocutory order. It is well settled
that an “interlocutory appeal . . . is not a reasonable excuse for [a claimant’s] failure
to comply with” an order directing the claimant to attend a medical examination.
Bradley, 919 A.2d at 295. Moreover, unlike in Bechtel, no party is taking an
inconsistent position in the two different proceedings. Employer’s position was, and
remains, that Claimant was required to attend the IRE, and Claimant’s position was,
and remains, that he does not. Finally, Claimant would not lose his right to appeal
if the Suspension Petition proceeded, as the WCJ subsequently found. Rather, as the
WCJ originally found, Claimant would be able to raise his constitutional claims to
the Board in the normal course, if and when Employer sought to modify Claimant’s
disability status based upon the results of the IRE and the WCJ issued a final,
appealable decision. Thus, we agree with the Board that the WCJ erred, as a matter
of law, in finding Bechtel precluded litigation of Employer’s Suspension Petition
while Claimant’s interlocutory appeal was pending.
Moreover, we note that Claimant did not seek supersedeas of the WCJ’s order
directing him to attend the IRE. In McCormick, the claimant was ordered to attend
an independent medical examination (IME), and while that appeal was pending, did
not attend the IME, resulting in the employer filing a petition to suspend. The WCJ
granted the petition to suspend, finding the claimant did not proffer reasonable cause
for not attending. On appeal to this Court, the claimant argued the appeal of the
WCJ’s order effectively stayed the order compelling the IME and constituted
reasonable cause and excuse for not attending. We rejected this argument, holding
15
an appeal does not automatically stay an order unless there is a specific provision
granting automatic supersedeas, and here there was not. McCormick, 734 A.2d at
477-78. See also Bradley, 919 A.2d at 295. Claimant also asserts that because the
WCJ’s order directing that he attend the IRE did not suspend Claimant’s benefits,
he could not have sought supersedeas. (Claimant’s Br. at 15-16.) We are not
persuaded by Claimant’s argument as he cites no legal support for this argument.
For the first time in his reply brief, Claimant also argues Employer, under the
WC Act, could have, and presumably should have, immediately stopped Claimant’s
benefits when he did not attend the IRE as ordered and, because Employer did not
do so, it is barred from recovering against his future benefits based on past conduct.
As it does not appear Claimant raised this issue until now, it is arguably waived. See
McGaffin v. Workers’ Comp. Appeal Bd. (Manatron, Inc.), 903 A.2d 94, 101 (Pa.
Cmwlth. 2006). Regardless, we are not persuaded by Claimant’s argument. “[A]n
employer has no right to suspend benefits for a claimant’s failure to attend an exam
without first having obtained an order” directing the claimant to attend the exam.
Maranc v. Workers’ Comp. Appeal Bd. (Bienenfeld), 751 A.2d 1196, 1201 (Pa.
Cmwlth. 2000). See also Robb v. Workers’ Comp. Appeal Bd. (Dep’t of Pub.
Welfare), 718 A.2d 875, 881 (Pa. Cmwlth. 1998) (“[O]nce the WCJ has issued an
order requiring the claimant to attend an [exam], a subsequent refusal by the claimant
to attend the exam, without reasonable cause or excuse, gives the WCJ the authority
to suspend [the c]laimant’s benefits as of the date on which the [c]laimant was to
attend the [exam].”) (emphasis omitted); Blair v. Workmen’s Comp. Appeal Bd.
(Fullington Bus Co.), 471 A.2d 1289, 1292 (Pa. Cmwlth. 1984) (“Although
[S]ection 314 is not free of ambiguity, we believe that the legislature intended that a
referee, not an employer, determine if an employee had reasonable cause or excuse
16
for not submitting to a board-ordered examination. Thus, only a referee can deduct
compensation under [S]ection 314.”) Thus, Employer followed the appropriate
procedure here to initiate suspension of Claimant’s benefits.
Next, Claimant argues that the Board erred in awarding a dollar-for-dollar
credit against future compensation benefits and, relatedly, should have considered
his financial situation first. He contends the Board’s Order is contrary to this Court’s
decision in Fahringer. In Fahringer, an NCP incorrectly listing the claimant’s
average weekly wage was issued, which resulted in the claimant receiving a larger
benefit amount than he was entitled. The parties later entered into a supplemental
agreement related to partial disability benefits. The error went undetected for
approximately six years, resulting in an overpayment of more than $18,000, which
the employer sought to recoup. 529 A.2d at 58. The referee modified the parties’
supplemental agreement, but refused to order recoupment of the $18,000 on the basis
of equitable estoppel, and the Board affirmed. Id. We held equitable estoppel did
not apply as there was no justifiable reliance in the employer miscalculating the
claimant’s own wages; however, we did find there was unjust enrichment. We
explained that “[t]he doctrine of unjust enrichment is an equitable one; the Board,
however, does not have its roots in equity. While we do not believe that this fact
precludes the Board from employing certain equitable principles, its use of such
principles must be restricted in light of its statutory constraints.” Id. at 59. The
statutory constraints were found in Section 413(a) of the WC Act, which provides
an NCP or an agreement between the parties could be modified or set aside at any
time if it “was in any material respect incorrect.” Id. at 58 (quoting 77 P.S. § 771).
Thus, we concluded the Board could invoke Section 413(a) to modify an award if
there was a mathematical miscalculation or it was correcting an error to existing
17
agreements. Id. at 58-59. Since the original agreement was no longer in effect, we
held the employer could not recover for any overpayment made under that
agreement, but it could recover any overpayment made pursuant to the supplemental
agreement. Id. at 59. However, in making such an award, we directed the Board to
first take into consideration Claimant’s financial circumstances. Id.
Here, the Board did not proceed under Section 413(a). Rather, it acted in
accord with Section 314, which provides the remedy when a claimant does not
appear for a scheduled examination. Section 314 expressly provides for the relief
the Board granted here:
The refusal or neglect, without reasonable cause or excuse, of the
employe to submit to such examination or expert interview ordered by
the [WCJ], either before or after an agreement or award, shall deprive
him of the right to compensation, under this article, during the
continuance of such refusal or neglect, and the period of such neglect
or refusal shall be deducted from the period during which
compensation would otherwise be payable.
77 P.S. § 651(a) (emphasis added); see also Lukens Steel, 524 A.2d at 1043 (noting
that employer is not entitled to reimbursement from the Supersedeas Fund and
Section 314, which had remained unchanged since its enactment, “gives the
employer only the right to charge against future payments, if any”). Thus, as in cases
where there was an error or miscalculation under Section 413(a), Section 314 also
provides a statutory basis for the Board to remedy an employer’s harm when a
claimant does not appear, as ordered, for a medical examination. Therefore, the
Board had the authority to award the relief it did.
This result is also consistent with our holding in Linton, where the claimant
refused to submit to an expert interview with a vocational representative after being
ordered by a WCJ to do so. A WCJ ultimately suspended the claimant’s benefits,
18
noting that the claimant had avoided the interview for two years through litigating
the matter, finding the claimant was unjustly enriched as a result, and directing a
dollar-for-dollar recoupment by the employer. Linton, slip op. at 5.
Finally, Claimant argues the Board erred in not considering Claimant’s
financial circumstances, also in violation of Fahringer, wherein the Court held the
Board should have considered the claimant’s financial situation when fashioning its
recoupment remedy. 529 A.2d at 59. As discussed above, Fahringer involved an
incorrect AWW, which resulted in the claimant receiving a substantial overpayment.
Claimant cites no cases where the Court has applied the equitable principle of
Fahringer to a situation where a claimant refused to attend a medical exam, such as
here, nor could the Court find any. The Act specifically provides for a credit in such
situations, see 77 P.S. § 651(a), and we “have no authority to add or insert language
into a statute and should not, through interpretation, add a requirement that the
General Assembly did not include,” Township of Washington v. Township of Burrell,
184 A.3d 1083, 1089 (Pa. Cmwth. 2018) (internal quotation and citation omitted).
Although the Act is humanitarian in nature, the Supreme Court has recently
cautioned this Court about “engraft[ing] onto the Act a requirement” not in the Act
in order “[t]o remedy [a] perceived infirmity.” Keystone RX LLC v. Bureau of
Workers’ Comp. Fee Rev. Hearing Off. (CompServices, Inc./Amerihealth Casualty
Servs.), 265 A.3d 322, 329 (Pa. 2021). In the absence of some authority to do so,
the Court declines to extend the equitable principles applied where there was an
inadvertent error in Fahringer to cases such as this where a claimant, without
reasonable cause or excuse, refuses to attend a medical examination that a WCJ
ordered the claimant to attend.
19
IV. CONCLUSION
In summary, the Board did not err in suspending Claimant’s disability benefits
after Claimant failed to attend an IRE as ordered by the WCJ. Although Claimant
was in the process of appealing that order, it was an interlocutory order, which did
not operate as an automatic supersedeas, and Claimant did not separately seek
supersedeas. Furthermore, pursuant to this Court’s precedent, failing to attend the
IRE under these circumstances did not serve as reasonable cause or excuse for not
attending as directed. Moreover, the Board did not exceed its authority by awarding
Employer a dollar-for-dollar credit as Section 314 of the WC Act provides for this
exact relief. Accordingly, we affirm the Board’s Order.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lloyd Edinger, :
Petitioner :
:
v. : No. 916 C.D. 2021
:
Rhodes Salvage/Edward Rhodes :
(Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
NOW, April 25, 2023, the Order of the Workers’ Compensation Appeal
Board, in the above-captioned matter, is AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge