D. Cutter v. Com. of PA (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donna Cutter, :
Petitioner :
:
v. : No. 1170 C.D. 2021
: Submitted: March 11, 2022
Commonwealth of Pennsylvania :
(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
JUDGE CEISLER FILED: April 27, 2022
Donna Cutter (Claimant) petitions this Court for review of the October 19,
2021 order of the Workers’ Compensation (WC) Appeal Board (Board), which
affirmed the decision of a workers’ compensation judge (WCJ) modifying
Claimant’s disability status based on the results of a February 26, 2019 impairment
rating evaluation (IRE) conducted pursuant to Section 306(a.3) of the Workers’
Compensation Act (WC Act).1 Claimant asserts that she has not been paid the weeks
1
Act of June 2, 1915, P.L. 736, as amended, added by Act of October 24, 2018, P.L. 714
No. 111 (Act 111), 77 P.S. § 511.3. Section 306(a.3) of the WC Act provides that a claimant who
has received total disability benefits for 104 weeks must submit to an IRE conducted pursuant to
the Sixth Edition (second printing April 2009) of the American Medical Association’s Guides to
the Evaluation of Permanent Impairment (AMA Guides), which calculates the claimant’s degree
of impairment due to the compensable injury. If a claimant’s whole-body impairment (WBI) rating
is less than 35%, the claimant shall receive partial disability benefits pursuant to Section 306(b) of
(Footnote continued on next page…)
of total disability benefits necessary to trigger the IRE process under the WC Act.
Rather, Claimant has only received compensation for a September 21, 2015 work
injury pursuant to Section 1 of the Act of September 2, 1961, P.L. 1224, No. 534
(Act 534 benefits),2 61 P.S. § 951. Therefore, the WCJ erred in modifying her total
disability benefits under the WC Act. Alternatively, Claimant argues that the
February 26, 2019 IRE failed to consider all diagnoses relating to her work injury
and it cannot support a modification of her total disability benefits. After careful
review, we affirm.
I. Background
The underlying facts in this matter are undisputed. Claimant sustained the
September 21, 2015 work injury while in the course of her employment as a youth
development aide at the South Mountain Secure Treatment Facility (Facility)
operated by DHS (Employer), following an assault by a resident of the Facility.
Certified Record (C.R.), Item No. 4, WCJ Decision, Finding of Fact (F.F.) No. 1.
Employer accepted Claimant’s work injury through issuance of a notice of
compensation payable (NCP), which acknowledged that Claimant sustained injuries
to her head, right eye, neck, and back. C.R., Item No. 21. The NCP acknowledged
that Claimant would receive Act 534 benefits in lieu of compensation under the WC
Act. Id. The description of Claimant’s injury was later amended to include facial
the WC Act. Section 306(b) of the WC Act limits a claimant’s receipt of partial disability benefits
to 500 weeks. 77 P.S. § 512.
2
Act 534 amended the Act of December 8, 1959, P.L. 1718. Section 1 of Act 534
relevantly provides that an employee of a youth development center operated by the Pennsylvania
Department of Human Services (DHS) who is injured in the course of employment shall receive
her full salary “until the disability arising therefrom no longer prevents” her return to work at the
salary she earned at the time of injury. 61 P.S. § 951. Any compensation “received or collected”
under the WC Act during the period in which an employee receives Act 534 benefits “shall be
turned over to the Commonwealth and paid into the General Fund[.]” Id.
2
contusions, concussion, post-concussion syndrome, tinnitus, a deviated septum,
post-traumatic stress disorder (PTSD), trigeminal neuralgia “and/or atypical face
pain,” central auditory processing disorder, damage to Claimant’s right cochlea, and
mild bilateral hearing loss.3 C.R., Item No. 15 at 6; Item No. 16, Conclusion of Law
(C.O.L.) No. 2; Item No. 17 at 4.
Based on the February 26, 2019 IRE performed by Scott Naftulin, M.D.,
which assigned Claimant a WBI rating of 26%, Employer filed a petition seeking to
modify Claimant’s total disability benefits under the WC Act. C.R., Item No. 2.
Claimant did not file a response to Employer’s modification petition.
Claimant testified before the WCJ on October 21, 2019 that she continues to
receive treatment for her PTSD and “occipital neuralgia.” C.R., Item No. 10, Notes
of Testimony (N.T.), 10/21/19, at 12-13. On “good days[,]” Claimant is able to
drive, shop at the store, and perform chores. Id. at 18. However, Claimant’s PTSD
frequently prevents her from leaving the home, and she suffers from headaches and
vision problems. Id. at 18-19. She does not feel capable of returning to her pre-
injury job or of working in any capacity. Id. at 19.
Dr. Naftulin testified at depositions held on January 6, 2020, and August 24,
2020. C.R., Item Nos. 19-20. He related Claimant’s relevant medical history, as
reported to him by Claimant, and as reflected in her medical records. Naftulin
deposition, 1/6/20, at 15-17, 22. At the time of Dr. Naftulin’s evaluation, Claimant
complained of right-sided occipital pain, hearing loss, and tinnitus. Id. at 17. She
reported a diagnosis of “right occipital neuralgia[,]” for which she received treatment
from a neurologist. Id. at 16, Ex. No. 2. Claimant’s mental status during the
3
The parties stipulated to some of Claimant’s additional diagnoses in agreements executed
on March 21, 2017, and October 8, 2018, which a WCJ, Thomas Kutz (Judge Kutz), adopted in
decisions circulated on April 6, 2017, and January 11, 2019. C.R., Item Nos. 15, 17.
3
evaluation was appropriate and she did not appear to be in any stress. Naftulin
deposition, 1/6/20, at 19. Her physical examination was mostly normal, although
Claimant had a positive Romberg sign, indicating a difficulty with balance, mild
limitation in the range of motion in her cervical spine, and intermittent tremors in
her upper extremities. Id. at 20-21. Based on the results of his physical examination
and review of Claimant’s medical records, Dr. Naftulin opined that Claimant had
reached maximum medical improvement (MMI) with respect to her work injury, and
he assigned Claimant a WBI rating of 26%. Id. at 22-23, 26. From that total, 11%
related to Claimant’s visual impairment, 2% to her residual headaches, and 10% for
PTSD. Id. at 27-30. Because Claimant received “ongoing treatment for occipital
neuralgia after successful treatment of atypical face pain,” Dr. Naftulin assigned
Claimant a 5% WBI rating, the “highest” available, for her occipital neuralgia. Id.
at 29, Ex. No. 2. He noted that Claimant received a 0% WBI rating for any accepted
diagnoses that had either resolved or for which Claimant was asymptomatic.4
Naftulin deposition, 1/6/20, at 28-29.
Dr. Naftulin’s opinion did not consider whether Claimant required additional
treatment for her diagnosed conditions or whether she could return to her pre-injury
job, as the purpose of an IRE did not include such determinations. Id. at 36-37. Dr.
Naftulin agreed that his initial calculation of Claimant’s WBI did not consider her
diagnosed tinnitus, central auditory process disorder, damage to her right cochlea,
or her mild bilateral hearing loss. Id. at 35, 38. Therefore, Dr. Naftulin reviewed
4
Dr. Naftulin found no evidence of ongoing lacerations or contusions, for example, and he
assigned 0% impairment to those diagnoses. Naftulin deposition, 1/6/20, at 28. Dr. Naftulin’s
calculation of Claimant’s WBI was likewise unaffected by Claimant’s deviated septum, which had
been repaired and from which Claimant reported no ongoing problems. Id. Claimant’s back
injury was no longer symptomatic and Dr. Naftulin attributed any limitations in Claimant’s range
of motion to a cervical fusion that preexisted the September 21, 2015 work injury. Id.
4
additional medical records relating to those diagnoses and recalculated Claimant’s
WBI, which he opined was 30%. C.R., Item No. 20, Naftulin deposition, 8/26/20,
Id. at 10-11, 14. Dr. Naftulin reiterated his opinion that Claimant had achieved MMI.
Id. at 15.
During cross-examination, Dr. Naftulin conceded he did not perform a
hearing test as part of the February 26, 2019 IRE. Id. at 21. He did, however, review
Claimant’s audiology records as part of the IRE. Id. at 16-17. Dr. Naftulin clarified
that, to perform an IRE, one does not have to be a specialist for every diagnosed
condition; rather, one must “know how to use the [AMA] Guides and the concepts
behind performing [an IRE].” Id. at 27. Dr. Naftulin has performed IREs for
approximately 20 years, since the inception of the IRE process, and he commonly
evaluates individuals for conditions that he does not regularly treat. Id. at 27-28.
Occasionally, he will refer a claimant to a specialist for additional testing as part of
the IRE process. Id. at 27. A referral is unnecessary, however, if the necessary
testing results are “already in the records[.]” Id.
The WCJ granted Employer’s modification petition on February 26, 2021.
C.R., Item No. 4. The WCJ credited Claimant’s testimony regarding her limitations
that relate to the work injury, and the WCJ found that her residual symptoms were
consistent with Dr. Naftulin’s assessment that Claimant had a WBI of 30%.
The WCJ also credited Dr. Naftulin’s testimony as “credible, persuasive, and
unrebutted[,]” noting that “Dr. Naftulin explained the history, complaints, and
findings on examination” that factored into his calculation of Claimant’s WBI, and
the percentage he attributed to each of Claimant’s diagnoses. Id., F.F. No. 25.
Based on the evidence presented, the WCJ concluded that Employer established that
Claimant’s WBI fell below the threshold required to modify her disability benefits
5
from total to partial under Section 306(a.3) of the Act, effective February 26, 2019.
Id., C.O.L. No. 1.
Claimant appealed to the Board, arguing that the WCJ’s finding with respect
to Dr. Naftulin’s credibility was not supported by competent evidence. C.R., Item
No. 5. Claimant also argued that the WCJ’s conclusion that Employer established
the elements necessary to modify Claimant’s benefits under Section 306(a.3) of the
WC Act was not supported by “competent evidence or pertinent authority.” Id. In
its October 19, 2021 opinion, the Board noted that Claimant argued for the first time
on appeal that she had never received total disability benefits under the WC Act,
and, therefore, the WCJ erred in modifying her benefits pursuant to Section 306(a.3).
C.R., Item No. 7, Bd. op. at 7. Because Claimant had not previously raised that issue
before the WCJ, the Board deemed it waived. Id.
The Board also rejected Claimant’s challenge to the competency of Dr.
Naftulin’s testimony and opinions, as Dr. Naftulin assessed Claimant’s condition at
the time of the IRE, and he was not required to address conditions that had resolved.
Id. Claimant’s assertion that Dr. Naftulin failed to specifically consider her
diagnosed trigeminal neuralgia was refuted by Dr. Naftulin’s testimony that he
assigned Claimant the “highest rating under the AMA Guides[,]” in light of her
continued occipital neuralgia. Naftulin deposition, 1/6/20, at 29, Ex. No. 2. Dr.
Naftulin “provided an opinion on the injuries that [were] accepted and adjudicated
as work-related.” Bd. op. at 8. The Board noted that Claimant provided no authority
to support her contention that Dr. Naftulin’s opinions should be rejected because he
6
did not specialize in the treatment of Claimant’s diagnosed conditions. Accordingly,
the Board affirmed the WCJ. This appeal followed.5
II. Issues
On appeal, Claimant argues that the WCJ could not modify her benefits under
the WC Act, because she has not received the 104 weeks of total disability benefits
necessary to trigger the IRE provisions in Section 306(a.3) of the Act. Claimant also
argues that the WCJ erred in relying on Dr. Naftulin’s IRE to modify her benefits,
as it failed to consider all of Claimant’s accepted work injuries.
III. Discussion
A. Act 534 Benefits
Claimant first argues that she has never received total disability benefits under
the WC Act. Rather, Claimant only receives Act 534 benefits for her work injury.
Claimant maintains that her receipt of Act 534 benefits cannot be considered when
determining whether she received 104 weeks of total disability benefits under the
WC Act.
Act 534 benefits are similar to those provided under what is commonly known
as the Heart and Lung Act (HLA),6 which provides full-salary benefits to police
officers, firefighters, and other public safety employees injured on the job. Like
5
Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Phoenixville Hosp.
v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830, 838 (Pa. 2013).
6
Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-638. Section 1(a) of the HLA
relevantly provides that an employee enumerated in Section 1(a) who is injured in the performance
of his or her duties “shall be paid by the Commonwealth of Pennsylvania . . . his [or her] full rate
of salary . . . until the disability arising therefrom has ceased.” 53 P.S. § 637(a). Any compensation
received under the WC Act “shall be turned over to the Commonwealth of Pennsylvania . . . and
paid into the treasury thereof, and if such payment [is not made, it] shall be deducted from any
salary then or thereafter becoming due and owing.” Id.
7
Section 1(a) of Act 534, Section 1(a) of the HLA anticipates that an injured employee
may seek benefits under both the HLA and the WC Act; however, the
Commonwealth is entitled to recoup the amount of disability benefits a claimant
receives under the WC Act. 53 P.S. § 637(a). Given the similarities in purpose and
construction between the HLA and Act 534, our analysis of one statutory provision
may be applied to the other. Polk Ctr./Dep’t of Pub. Welfare v. Workmen’s Comp.
Appeal Bd. (Pochran), 682 A.2d 889, 894 (Pa. Cmwlth. 1996). When a self-insured
employer begins paying benefits under the HLA pursuant to an NCP, two-thirds of
the amount paid automatically represents the payment of workers’ compensation
benefits under the WC Act. Bureau of Workers’ Comp. v. Workers’ Comp. Appeal
Bd. (Excalibur Ins. Mgmt. Servs.), 32 A.3d 291, 294 (Pa. Cmwlth. 2011). Such a
conclusion is premised on the understanding that a claimant receiving either HLA
or Act 534 benefits, whose employer is insured by a third party, would forward the
insurer’s payment of disability benefits to the employer in fulfillment of its right to
subrogation for any workers’ compensation paid. Id. at 294. A self-insured
employer, however, would not be expected to pay workers’ compensation to a
claimant who would simply return the check as mandated by the relevant provision
of either the HLA or Act 534. Id. It therefore stands to reason that a self-insured
employer paying a claimant’s full salary under the HLA or Act 534 would “hardly
reimburse itself for that portion of a claimant’s benefits that represents benefits under
the [WC] Act.” Id. (quoting Wisniewski v. Workmen’s Comp. Appeal Bd. (City of
Pittsburgh), 621 A.2d 1111, 1113 (Pa. Cmwlth. 1993)).
In Wisniewski, 621 A.2d at 1113, this Court held that a self-insured employer,
which issued an NCP but only paid benefits under the HLA, could seek termination
of a claimant’s benefits under the WC Act, as two-thirds of her HLA benefits
8
represented the payment of workers’ compensation benefits. In Polk, 682 A.2d at
895, we applied this principle to a claimant’s receipt of Act 534 benefits. In Nelson
v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania) (Pa.
Cmwlth., No. 692 C.D. 2015, filed December 10, 2015),7 we held that a claimant’s
receipt of Act 534 benefits constituted the receipt of total disability benefits under
the WC Act and her workers’ compensation benefits were accordingly subject to
modification by an IRE.
Instantly, the Board declined to address Claimant’s argument that she had
never received total disability benefits under the WC Act, and the WCJ could not
modify those benefits, because she had not previously raised it before the WCJ.
Section 703(a) of the Administrative Agency Law provides that a party may not raise
on appeal any question not raised before the agency. 2 Pa.C.S. § 703(a). See also
Pa.R.A.P. 1551 (no question shall be heard by this Court that was not raised before
the governmental unit).8 While a litigant may make new arguments in support of a
preserved issue, she cannot advance “an entirely new and different theory of relief
for the first time on appeal.” Arnold v. Workers’ Comp. Appeal Bd. (Lacour
Painting, Inc.), 110 A.3d 1063, 1071 (Pa. Cmwlth. 2015).
We agree with the Board that Claimant has waived this issue. Claimant’s
appeal to the Board raised the following issues: (1) “[F.F. No.] 25 is not supported
7
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, we may cite an
unreported opinion of this Court for its persuasive value. 210 Pa. Code § 69.414(a).
8
Rule 1551 provides three exceptions to the general rule that this Court may not review
questions not raised before the governmental unit. We may address questions concerning the
validity of a statute, the subject matter jurisdiction of the governmental unit, and questions that the
petitioner could not, through the exercise of due diligence, have raised before the governmental
unit. Pa.R.A.P. 1551(a)(1)-(3). The issues raised by Claimant do not implicate any of the
exceptions to the general rule.
9
by competent evidence[;]” and (2) “[C.O.L. No.] 1 is not supported by competent
evidence or pertinent authority.” C.R., Item No. 5. The first issue questions the
WCJ’s credibility determination with respect to Dr. Naftulin. The second issue
challenges the WCJ’s conclusion that Employer sustained its burden of
demonstrating that Claimant’s disability benefits should be modified based on the
February 26, 2019 IRE. While these issues call into question the sufficiency of the
IRE, and the competency of Dr. Naftulin’s testimony and opinions, they do not
suggest that the prerequisites for requesting an IRE have not been satisfied.
The WCJ held five separate hearings in this matter,9 and at no point did
Claimant suggest that Employer acted prematurely in seeking an IRE because she
had not received the weeks of total disability benefits necessary to trigger the IRE
process in Section 306(a.3) of the WC Act. The three decisions rendered by Judge
Kutz likewise provide no indication that a dispute existed regarding Claimant’s
receipt of total disability benefits under the WC Act.
Even had Claimant not waived her first argument, it would not provide her
relief, as Employer is self-insured10 and our precedent holds that two-thirds of
Claimant’s Act 534 benefits represents the payment of total disability benefits under
the WC Act. Employer’s NCP indicates that Claimant began receiving Act 534
benefits on September 22, 2015. C.R., Item No. 21. The October 8, 2018 stipulation
9
The WCJ conducted hearings on August 22, 2019, October 21, 2019, April 13, 2020, July
13, 2020, and October 19, 2020. C.R., Item Nos. 9-13.
10
This Court takes judicial notice that the Commonwealth of Pennsylvania is designated
as a self-insured employer for workers’ compensation purposes on the official website of the
Pennsylvania Department of Labor and Industry. Workers’ Compensation Insurance, Self-Insured
Employers, https://www.dli.pa.gov/Businesses/Compensation/WC/insurance/Pages/Self-Insured-
Employers-A-C.aspx (last visited Apr. 27, 2022). See Hill v. Dep’t of Corr., 64 A.3d 1159, 1165
n.3 (Pa. Cmwlth. 2013) (taking judicial notice of policies and handbooks that appear on the
Department of Corrections’ official website).
10
of facts executed by the parties acknowledged that Claimant continued to receive
Act 534 benefits in lieu of total disability benefits under the WC Act. C.R., Item
No. 17 at 6. Nothing in the record suggests that Claimant did not receive Act 534
benefits continuously throughout this three-year period, and she has not argued
otherwise. Therefore, Claimant’s receipt of Act 534 benefits for a period exceeding
104 weeks satisfies the prerequisite necessary for Employer to seek an IRE under
Section 306(a.3) of the WC Act.
B. Sufficiency of IRE
Next, Claimant argues that the WCJ erred in granting Employer’s
modification petition because Dr. Naftulin’s February 26, 2019 IRE failed to
consider all of Claimant’s accepted diagnoses. Claimant generally questions the
sufficiency and extent of Dr. Naftulin’s physical examination and Claimant suggests
that Dr. Naftulin offered no opinion regarding her tinnitus, central auditory process
disorder, damage to her right cochlea, her mild bilateral hearing loss, or her
trigeminal neuralgia. While Claimant acknowledges that, after the February 26,
2019 IRE, Dr. Naftulin reviewed additional medical records relating to her auditory
conditions, she contends that his calculation and opinion of her WBI is incompetent,
as Dr. Naftulin did not reevaluate her in person. Claimant further maintains that Dr.
Naftulin never considered the accepted diagnosis of trigeminal neuralgia. Claimant
provides no authority to support her assertion that a subsequent, in-person evaluation
was required.
The burden in an IRE proceeding rests with the employer. Westmoreland
Reg’l Hosp. v. Workers’ Comp. Appeal Bd. (Pickford), 29 A.3d 120, 127 n.10 (Pa.
Cmwlth. 2011). A physician performing an IRE must consider and determine
whether a claimant’s particular impairment relates to a compensable injury, and a
11
WCJ may reject an IRE that fails to address conditions attributable to that injury.
Duffey v. Workers’ Comp. Appeal Bd. (Trola-dyne, Inc.), 152 A.3d 984, 989 (Pa.
2017). A physician’s IRE is not rendered invalid, however, where the physician
finds no objective evidence of residual impairment caused by an accepted work
injury. Pickford, 29 A.3d at 126. The purpose of the IRE is to present a “snapshot
of the claimant’s condition at the time of the IRE, not a survey of the claimant’s
work-related injuries over a period of time.” Id at 128.
An IRE is “entitled to no more or less weight than the results of any other
examination[,]” and a WCJ’s decision should be affirmed, providing the “essential
findings are supported by substantial evidence and there has been no constitutional
violation, procedural irregularity, or error of law.” IA Constr. Corp. v. Workers’
Comp. Appeal Bd. (Rhodes), 139 A.3d 154, 158, 161 (Pa. 2016). A WCJ is the
ultimate finder of fact and arbiter of credibility and evidentiary weight. Id. at 161.
In executing this role, the WCJ is free to accept or reject, in whole or in part, the
testimony of any witness. Lindemuth v. Workers’ Comp. Appeal Bd. (Strishock Coal
Co.), 134 A.3d 111, 125 (Pa. Cmwlth. 2016). It is irrelevant whether the record
contains evidence to support findings other than those made by the WCJ, as the
inquiry before this Court is whether the existing evidence supports the findings
actually made. Id.; See also Minicozzi v. Workers’ Comp. Appeal Bd. (Indus. Metal
Plating, Inc.), 873 A.2d 25, 29 (Pa. Cmwlth. 2005).
Instantly, having reviewed the entire record, we agree with the Board that Dr.
Naftulin considered all of Claimant’s diagnosed conditions relating to her work
injury before assigning Claimant a 30% WBI rating. Claimant’s principal brief
primarily focuses on whether Dr. Naftulin addressed Claimant’s trigeminal neuralgia
when calculating her WBI. A diagnosis of “trigeminal neuralgia and/or atypical face
12
pain” was added to the description of Claimant’s work injury by Judge Kutz’s
January 4, 2019 decision, based on the credited testimony of Claimant’s surgeon,
James McInerney, M.D. C.R., Item No. 16, F.F. No. 17(a). Claimant responded
“extremely well” to Dr. McInerney’s 2017 surgical treatment of her trigeminal
neuralgia, “experiencing significant improvement of her symptoms[.]” Id., F.F. No.
9(d).
In his first deposition, Dr. Naftulin specifically acknowledged Claimant’s
trigeminal neuralgia diagnosis, and the surgery performed by Dr. McInerney in 2017
to treat this condition. Naftulin deposition, 1/6/20, at 16. Dr. Naftulin’s testimony
and written report both reflect that Claimant primarily complained of right-sided
occipital pain during the February 26, 2019 IRE. Id. at 17, Ex. No. 2. Claimant self-
reported that her current diagnoses included occipital neuralgia, and she continued
to treat for this condition. Id. Based on Claimant’s ongoing treatment for occipital
neuralgia, Dr. Naftulin assigned Claimant a 5% WBI for this condition,11 which
demonstrates his understanding that, as of February 26, 2019, Claimant’s trigeminal
neuralgia symptoms had improved following the 2017 surgery, but she continued to
suffer from occipital neuralgia.
We also discern no merit to Claimant’s assertion that Dr. Naftulin failed to
address her auditory conditions. Dr. Naftulin conceded during his first deposition
that he had not considered Claimant’s tinnitus, central auditory process disorder,
damage to her right cochlea, or her mild bilateral hearing loss when he initially
calculated her WBI. He rectified this omission with a subsequent review of
additional medical records, including the results of hearing tests and audiology
reports. Thereafter, he determined that Claimant’s WBI was 30%. The WCJ
11
It is noteworthy that Claimant has not asserted she would have received a higher rating
for trigeminal neuralgia versus occipital neuralgia.
13
credited Dr. Naftulin’s testimony and opinions and we will not disturb his credibility
determinations based on the record before us.
IV. Conclusion
Claimant’s receipt of Act 534 benefits represents the receipt of total disability
benefits under the WC Act. The WCJ credited Dr. Naftulin’s opinion assigning
Claimant a WBI rating of 30%, and this Court will not overturn that determination.
Accordingly, we conclude that the WCJ did not err in modifying Claimant’s total
disability benefits to partial disability, pursuant to Section 306(a.3) of the WC Act,
and we affirm the Board.
____________________________
ELLEN CEISLER, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donna Cutter, :
Petitioner :
:
v. : No. 1170 C.D. 2021
:
Commonwealth of Pennsylvania :
(Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
AND NOW, this 27th day of April, 2022, the October 19, 2021 order of the
Workers’ Compensation Appeal Board is hereby AFFIRMED.
____________________________
ELLEN CEISLER, Judge