S. Conrad v. DOT (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Steven Conrad, :
Petitioner :
: No. 557 C.D. 2022
v. :
: Submitted: March 31, 2023
Department of Transportation :
(Workers’ Compensation :
Appeal Board), :
Respondent
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
OPINION
BY JUDGE McCULLOUGH FILED: February 26, 2024
In this workers’ compensation case, Steven Conrad (Claimant) petitions
for review of the May 12, 2022 opinion and order of the Workers’ Compensation
Appeal Board (Board), which affirmed the October 8, 2021 decision and order of the
Workers’ Compensation Judge (WCJ). Therein, the WCJ (1) granted the Department
of Transportation’s (Employer) Modification Petition, (2) modified Claimant’s
disability status for his July 5, 2005 work injury to temporary partial disability effective
August 11, 2020, (3) found that Employer is entitled to a credit for the weeks of
temporary partial disability benefits paid from September 20, 2011, through November
1, 2016, and (4) ordered Employer to deduct 20% from the wage loss benefits payable
to Claimant and pay the same directly to Claimant’s Counsel in satisfaction of the
approved attorney fee agreement. Upon review we affirm.
I. Facts and Procedural History
On July 27, 2005, Employer issued a Notice of Compensation Payable
(NCP) accepting liability for a July 5, 2005 work-related injury sustained by Claimant
in the nature of a lower back strain; thereafter, Claimant began receiving temporary
total disability benefits. (WCJ Findings of Fact (FOF) 1.) On September 20, 2011,
Claimant underwent an impairment rating evaluation (IRE) provided for in Section
306(a.2) of the Pennsylvania Workers’ Compensation Act (WC Act),1 which resulted
in an impairment rating of less than 50%. (FOF 2; Reproduced Record (R.R.) at 41a-
46a.) Based on the results of the IRE, the WCJ modified Claimant’s disability status
from total to partial effective September 20, 2011, for a period of 500 weeks. Id; R.R.
at 30a-34a.
On November 1, 2016, before 500 weeks of payment of partial disability
benefits expired, Claimant filed a Reinstatement Petition alleging that his impairment
rating was invalid and unconstitutional, based on Protz v. Workers’ Compensation
Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017), and its progeny
declaring the IRE section of the WC Act2 unconstitutional. (Board Op. at 1.); R.R. at
22a-29a.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. Former Section
306(a.2), formerly 77 P.S. § 511.2, was added by the Act of June 24, 1996, P.L. 350 and was repealed
by the Act of October 24, 2018, P.L. 714, No. 111 (Act 111), 77 P.S. § 511.3.
2
In Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 124 A.3d
406 (Pa. Cmwlth. 2015) (Protz I), affirmed in part and reversed in part, 161 A.3d 827 (Pa. 2017)
(Protz II), this Court declared former Section 306(a.2), formerly 77 P.S. § 511.2, to be an
unconstitutional delegation of legislative authority to the extent that it proactively approved versions
of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA
Guides) “beyond the Fourth Edition without review.” Id. at 416. In Protz II, the Pennsylvania
Supreme Court held that the General Assembly, in authorizing the application of future versions of
the AMA Guides without review, had unconstitutionally delegated its lawmaking authority in
violation of the non-delegation doctrine. 161 A.3d at 840-41. The Protz II Court invalidated Section
306(a.2) in its entirety. Id. at 841.
Thereafter, Section 306(a.2) was repealed by Act 111 and replaced by Section 306(a.3), 77
P.S. § 511.3. Former Section 306(a.2) provided, in pertinent part, as follows:
(Footnote continued on next page…)
2
On January 31, 2018, a WCJ reinstated Claimant’s total disability benefits
as of September 20, 2011. (R.R. at 22a-29a.). On April 26, 2019, the Board affirmed
the reinstatement to total disability status but amended the effective date to November
1, 2016, the date Claimant filed his Reinstatement Petition. (R.R. at 35a-40a.)
On August 11, 2020, Claimant underwent a new IRE pursuant to Act 111,
which resulted in an impairment rating of 11%. (R.R. at 49a-58a.) Consequently, on
September 10, 2020, Employer filed the instant Modification Petition seeking (1) to
change Claimant’s benefit status back to partial disability based on the new IRE, and
(2) a credit for the partial disability benefits previously paid. (FOF 4.)
(1) When an employe has received total disability compensation pursuant to
clause (a) for a period of [104] weeks . . . the employe shall be required to
submit to a medical examination . . . 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 . . . pursuant to the most
recent edition of the [AMA Guides] . . . .
(2) If such determination results in an impairment rating that meets a threshold
impairment rating that is equal to or greater than [50%] . . . the employe shall
be presumed to be totally disabled and shall continue to receive total disability
compensation benefits. . . . If such determination results in an impairment
rating less than [50%] impairment . . . the employe shall then receive partial
disability benefits under class (b) . . . .
Former 77 P.S. § 511.2(1), (2).
Section 306(a.3) provided, in pertinent part, as follows:
(1) When an employe has received total disability compensation pursuant to
clause (a) for a period of [104] weeks . . . the employe shall be required to
submit to a medical examination . . . 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 . . . pursuant to the
[AMA Guides], [Sixth] edition (second printing April 2009).
(2) If such determination results in an impairment rating that meets less than
[35%] under the [AMA Guides], [Sixth] edition (second printing April
2009), the employe shall then receive partial disability benefits under class
(b) . . . .
77 P.S. § 511.3(1), (2) (emphasis added).
3
On November 24, 2020, before the WCJ, Claimant presented his sworn
testimony. (FOF 7; R.R at 6a-21a.) The WCJ summarized his testimony in pertinent
part as follows:
At the time of the hearing, Claimant was 68 years old. He
injured his lower back while working for Employer on July
5, 2005. Since the injury, Claimant had two back surgeries
performed by Dr. [Balint] Balog. Claimant had ongoing
problems with his lower back. He was treating for those
problems with Dr. [Jean] Santo [who] was prescribing a
narcotic. Claimant had a cane he used when walking because
he would lose the feeling in his legs and fall. He had been
using the cane for five to eight years. He felt his symptoms
were worse since he came under Dr. Santo’s care. He had
stabbing pain in his back with each step. His legs and back
were weaker. Dr. Santo suggested Claimant use a walker
during an October 2, 2020 appointment. Dr. Santo mentioned
a possible fusion surgery “down the road, but to put it off as
long as” possible. Dr. Santo mentioned the possible fusion
surgery “years ago,” perhaps in 2010. Claimant was only
treating with Dr. Santo. He had not had any recent surgical
consultations. In the five years prior to the hearing,
Claimant’s treatment had been the same, although his
medication changed.
Claimant had extreme, constant, toothache-like pain in his
lower back all day long. His legs worsened as the day went
on. In the evenings, his mobility was bad and his legs were
shaky. He had pain down his legs all the way to his toes, as
well as numbness and tingling. Claimant did not believe there
was any kind of work he could perform. He had not worked
since 2005.
Claimant took his narcotic before the IRE with Dr. [John]
Kline. Dr. Kline performed an examination and asked
questions. The entire appointment lasted 15 minutes. The
physical examination lasted five minutes.
(FOF 7.) The WCJ found Claimant’s testimony to be credible “regarding the work
injury he sustained and the treatment he pursued thereafter.” Id. 9(a). However, the
WCJ noted that Claimant is not qualified to render a medical opinion. Id.
4
Employer submitted (1) the Impairment Rating Determination Face Sheet
and Report relative to the September 20, 2011 IRE performed by Jill D’Amico, D.O.
(Dr. D’Amico), which found Claimant had a whole-person impairment rating of 15%
as a result of his work-related injury based upon Chapter 17 of the Sixth Edition of the
AMA Guides, (2) the May 2, 2012 Notice of Change of Workers’ Compensation
Disability Status that was completed subsequent to Dr. D’Amico’s September 20, 2011
IRE, and (3) the January 25, 2012 deposition testimony of Dr. D’Amico, wherein she
confirmed her opinion that Claimant was at maximum medical improvement and had
a whole-person impairment rating of 15% as a result of his work-related injury. Id. 6.
Employer also presented the December 22, 2020 deposition testimony of
John A. Kline, M.D. (Dr. Kline), who performed the August 11, 2020 IRE utilizing the
Sixth Edition of the AMA Guides and the Act 111 regulations. (FOF 8; R.R. at 71a-
172a.) The WCJ summarized Dr. Kline’s testimony in pertinent part as follows:
Dr. Kline obtained a history of injury and subsequent
treatment from Claimant. Dr. Kline also reviewed medical
records pertaining to Claimant’s treatment for his work
injury. Those records included diagnostic studies of
Claimant’s lumbar spine, as well as Dr. D’Amico’s prior
IRE.
Dr. Kline physically examined Claimant on August 11, 2020.
Claimant was morbidly obese, but he was able to move about
the room without a cane. There were no abnormalities to
structure or posture. There was no evidence of atrophy of the
lower limbs. Claimant walked normally. He could stand on
his tiptoes and his heels. Based upon Claimant’s body
habitus, Dr. Kline did not have Claimant walk on his tiptoes
or heels, nor did Dr. Kline have Claimant tandem walk.
Claimant had full range of motion of his low back but
reported pain. There was some limitation to internal rotation
and external rotation of both hips. There was tenderness to
palpation over the area of the post-operative scar in the L4-
5, L5-S1 region of the lower back. There was no tenderness
in the sacroiliac joints, buttocks area, hip area, or coccyx.
5
There were no spasms or trigger points. Neurological testing
of muscles in the lower limbs was normal. Claimant had 5
out of 5 strength. Reflex of the left patella was sluggish
compared to the right, but otherwise reflexes were equal.
There was diminished sensation on the outer portion of the
right calf and foot, but sensation was otherwise normal.
Straight leg raise testing was positive on the right and
negative on the left in a seated position. In a supine position,
straight leg raise testing was negative bilaterally. Claimant
reported pain with Patrick’s or Berber’s test. Pelvic
distraction and compression tests of the SI joint were
negative. Four out of five Waddell’s tests were positive,
which indicated a non-anatomic reason for some of the pain
or implied symptom magnification.
Based upon his history, records review, and physical
examination, Dr. Kline diagnosed the July 5, 2005 work
injury as a recurrent L4-5 disc herniation for which Claimant
had operative decompression, as well as radicular symptoms.
Arachnoiditis was a complication of Claimant’s work injury.
It caused radicular findings and symptoms, and it was
included in the diagnoses and symptoms Dr. Kline used to
perform his impairment rating evaluation. Dr. Kline opined
Claimant had clearly reached maximum medical
improvement [(MMI)] from his July 5, 2005 work injury. Dr.
Kline noted it was 15 years after the work injury. Claimant’s
condition was not likely to change for better or worse
throughout the course of the year, with or without additional
medical treatment. Dr. Kline utilized his diagnosis of
Claimant’s work injury in determining the degree of whole-
body impairment, given Claimant’s recurrent L4-5 disc
herniation, Dr. Kline noted that Claimant fell into category
2, which generally carries whole[-]person impairment
[rating] of 10% to 15%. Dr. Kline then addressed the grade
modifiers based upon physical examination, clinical studies,
and functional history. Claimant’s pain behavior
questionnaire and his objective score of 108 yielded a
functional history grade modifier of three. The physical
examination findings of diminished sensation within the
distribution of a nerve root and depressed deep tendon
reflexes yielded a physical examination grade modifier of
two. [The Magnetic Resonance Imaging (MRI)] study
demonstrating recurrent disc herniation was used to place
6
Claimant in category 2 and could not be used again as a
clinical studies grade modifier. As there were no
electrodiagnostic studies available, Claimant’s clinical
studies grade modifier was 0. After the grade modifiers, Dr.
Kline calculated the net adjustment score, wherein he began
with Claimant in category 2 and applied the grade modifiers
for an adjustment score of negative one. A negative one
adjustment score placed Claimant in the grade B category
and resulted in a whole[-]person impairment rating of 11 %
relative to the L4-5 disc herniation.
Dr. Kline reviewed Dr. Santo’s October 2, 2020 report. He
noted Dr. Santo did not truly contest the calculation of the
impairment rating, which is based on factual information.
Rather, Dr. Santo opined that Claimant was fully disabled,
and she was against the idea of an impairment rating. Dr.
Kline noted that Dr. Santo’s opinion that Claimant was fully,
completely, and permanently disabled meant Claimant was
at [MMI]. His functional impairment could not get any worse
than fully, completely, and permanently disabled. Dr.
Santo’s report did not change Dr. Kline’s opinion regarding
Claimant’s whole[-]person impairment rating. Dr. Kline
agreed he had records from Dr. Santo from December 2006
through April 2017 at the time he performed his [IRE]. He
later received the October 2, 2020 report Dr. Santo authored,
but he did not receive Dr. Santo’s records between April
2017 and October 2, 2020. Dr. Kline did not believe those
records could demonstrate a worsening indicating Claimant
was not at [MMI]. [MMI] typically occurs two years
following surgical intervention.
(FOF 8.) The WCJ found Dr. Kline’s testimony “logical, internally consistent, and
well supported by his records review and physical examination.” Id. 9(c).
On October 8, 2021, the WCJ granted Employer’s Modification Petition
under Act 111, concluding that Employer met its burden of proof for a modification of
Claimant’s disability status from total to partial effective August 11, 2020. (WCJ
Conclusion of Law (COL) 7). The WCJ also concluded that Employer is entitled to a
credit for the weeks of partial disability paid pursuant to the first IRE between
September 20, 2011, and November 1, 2016. Id. The WCJ recognized that Claimant
7
challenged Act 111’s constitutionality but concluded that he lacked the power to
adjudicate that challenge. (COL 8).
Claimant appealed from the WCJ’s decision to the Board arguing that the
WCJ erred in modifying Claimant’s disability status to partial disability based on the
August 11, 2020 IRE when Employer failed to give Claimant the statutory notice of
modification. (Board Op. at 3.) Claimant also argued that Employer failed to meet its
burden of proof for a modification because the IRE physician, Dr. Kline, did not have
an adequate evidentiary foundation or sufficient understanding of the facts for the IRE
or his opinion regarding MMI to be competent. Id. at 5. Claimant’s final argument
before the Board was that Act 111 is unconstitutional and void because it was passed
as a special law to provide relief to employers based on an impairment concept
unrelated to a claimant’s earning power, which does not comply with the legislative
scheme of the general WC Act. Id. at 11. The Board affirmed the WCJ’s decision and
order. Claimant now petitions for review in this Court.
II. Issues
On appeal,3 Claimant presents two issues: (1) whether Act 111 of 2018,
which purports to reinstitute the IRE procedure under the WC Act for injuries occurring
prior to October 24, 2018, is unconstitutional and cannot be applied to injuries before
that date; and (2) whether the IRE evaluation that does not consider the most recent
three years of medical records from Claimant’s treating doctor nor the most recent
seven years of diagnostic studies can be competent evidence sufficient to support
modification of benefits.
3
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. Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), 81 A.3d 830, 838 (Pa.
2013).
8
III. Discussion
Act 111
In his first issue, Claimant argues that Act 111 is unconstitutional and
violates article III, section 32 of the Pennsylvania Constitution.4 Claimant contends
that Act 111 is a special law regulating labor because it treats injured claimants who
have been entitled to total disability benefits for more than two years differently than
those who have been eligible for total disability benefits for a lesser period of time.
(Claimant’s Br. at 16.) Claimant asserts that Act 111 created a systemic approach to
changing claimants’ disability benefits by focusing on impairment rather than
disability.
Employer responds that this Court has rejected Act 111 constitutionality
challenges in Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth.
2019), Pierson v. Workers’ Compensation Appeal Board (Consol Pennsylvania Coal
Company LLC), 252 A.3d 1169 (Pa. Cmwlth. 2021), and more recently in Hutchinson
v. Annville Township (Workers’ Compensation Appeal Board), 260 A.3d 360 (Pa.
Cmwlth. 2021). Given this precedent, Employer asks the Court to affirm the Board’s
order.
This Court has addressed various constitutional challenges to Act 111.
First, in AFL-CIO, we held Act 111, unlike its predecessor, was not an unconstitutional
delegation of legislative authority. 219 A.3d at 319. In Pierson, we rejected an
argument that the IRE a claimant underwent was premature because fewer than 104
weeks had passed between the enactment of Act 111 and the IRE. In that case, the
Article III, section 32 of the Pennsylvania Constitution provides: “The General Assembly
4
shall pass no local or special law in any case which has been or can be provided for by general law
and specifically the General Assembly shall not pass any local or special law: . . . 7. Regulating labor,
trade, mining or manufacturing[.]” Pa. Const. art. III, § 32.
9
claimant underwent an IRE and had his disability status modified to partial after the
enactment of Act 111. Citing Rose Corporation v. Workers’ Compensation Appeal
Board (Espada), 238 A.3d 551 (Pa. Cmwlth. 2020), the Court explained that Act 111
plainly provides for credit of weeks of temporary total and partial disability benefits
previously paid and that the General Assembly explicitly provided the credit provisions
were to be given retroactive effect. Pierson, 252 A.3d at 1179-80. Rose Corporation
also holds that the plain language of Section 3 of Act 111 explicitly gives employers
credit for previous weeks of disability benefits paid. 238 A.3d at 563. The claimant in
Pierson also asserted the vested rights argument, which was rejected. The Court held
that the claimant’s “‘vested rights’ have not been abrogated by Act 111,” id. at 1180,
because “there are reasonable expectations under the Act that benefits may change.”
Id. at 1179. We explained that Act 111 did not automatically strip a claimant of any
rights; rather, Act 111 provided employers with a mechanism to modify a claimant’s
disability status from total to partial. Id. In Hutchinson, the Court reaffirmed these
holdings. 260 A.3d at 366-67. We note that other claimants have invited the Court to
revisit these holdings, but we have declined to do so. See, e.g., Sochko v. National
Express Transit Service (Workers’ Compensation Appeal Board), 276 A.3d 1218 (Pa.
Cmwlth. 2022); Hender-Moody v. American Heritage Federal Credit Union (Workers’
Compensation Appeal Board), 274 A.3d 778 (Pa. Cmwlth. 2022); and Dohn v. Beck N’
Call (Workers’ Compensation Appeal Board), 264 A.3d 830 (Pa. Cmwlth. 2021).
Claimant relies on Duffey v. Workers’ Compensation Appeal Board
(Trola-Dyne, Inc.), 152 A.3d 984 (Pa. 2017), which notably was decided before Protz
II, in support of his argument that Act 111 created a systemic approach to changing
claimants’ disability benefits by focusing on impairment rather than disability.
10
Specifically, in his brief, Claimant quotes the following excerpt from the case:5 “the
approach of tying the continuation of disability benefits to impairment rating protocols
has been described by many physicians and characterized as ‘unappealing, if not
Orwellian’ in commentary. . . .” Id. at 995 n.18; Claimant’s Br. at 20. However,
Claimant conveniently fails to include the rest of the language from the footnote, where
the Pennsylvania Supreme Court stated “[w]e make this observation not as an adoption
of such viewpoint, but rather, to add perspective to our adherence to the specific
statutory directives embodying the legislative policy choices that have been made in
the impairment-rating arena.” Id.Claimant’s argument6 that Act 111 is a special law enacted in violation of
article III, section 32 of the Pennsylvania Constitution has not been specifically
5
The full language from the case is as follows:
In this regard, we note that the approach of tying the continuation of disability
benefits to impairment rating protocols has been decried by many physicians
and characterized as “unappealing, if not Orwellian” in commentary. David B.
Torrey & Andrew E. Greenberg, West’s Pa. Prac., Workers’ Compensation
§6.51 (2008 & July 2016 Supp.) (quoting Nortin M. Hadler, Impairment Rating
in Disability Determination for Low Back Pain: Placing the AMA Guides and
the Quebec Institute Report in Perspective, in John F. Burton, Jr. & Timothy
P. Schmidle, Workers’ Compensation Desk Book I-132 (LRP Pubs. 1992));
see also [id.] §6:48:50 (discussing controversy surround the AMA Guides,
including the criticism that they lack any empirical basis). We make this
observation not as an adoption of such viewpoint, but rather, to add perspective
to our adherence to the specific statutory directives embodying the legislative
policy choices that have been made in the impairment-rating arena.
Duffey, 152 A.3d at 995 n.18.
6
Claimant specifically argues:
[G]iven that [] Employer received a credit for ‘partial disability’
benefits paid from September 20, 2011 to November 1, 2016 and his
benefits were modified effective August 11, 2020, his indemnity
(Footnote continued on next page…)
11
addressed by this Court in the past. However, we find the argument without merit
because Act 111 did not create an arbitrary classification, and Claimant’s equal
protection rights are not violated.
Pennsylvania’s proscription against local or special laws is currently
found in article III, section 32, and was first adopted in the Pennsylvania Constitution
of 1874. Pennsylvania Turnpike Commission v. Commonwealth of Pennsylvania, 899
A.2d 1085, 1094 (Pa. 2006). Like many constitutional provisions, it was adopted in
response to immediate past abuses. Id. The main purpose behind article III, section 32
was “to put an end to the flood of privileged legislation for particular localities and for
private purposes which was common in 1873.” Id. (quoting Haverford Township v.
Siegle, 28 A.2d 786, 789 (Pa. 1942)). Over the years, the underlying purpose of article
III, section 32 has been recognized to be analogous to federal principles of equal
protection under the law, see U.S. Const. amend. XIV, § 1, and, thus, special legislation
claims, and equal protection claims have been reviewed under the same jurisprudential
rubric. Id. The common constitutional principle at the heart of the special legislation
proscription and the equal protection clause is that like persons in like circumstances
should be treated similarly by the sovereign. Id.; Kramer v. Workers’ Compensation
Appeal Board (Rite Aid Corp.), 883 A.2d 518, 532 (Pa. 2005). Nonetheless, it is settled
that equal protection principles do not “vitiate the Legislature’s power to classify,
which necessarily flows from its general power to enact regulations for the health,
safety, and welfare of the community,” nor do these principles “prohibit differential
treatment of persons having different needs.” Pennsylvania Turnpike Commission, 899
benefits will soon run out. There is no rational reason why [Claimant]
should be treated differently regarding his right to receive ongoing
workers’ compensation indemnity benefits under the law than another
injured worker who has not yet received 104 weeks of benefits.
(Claimant’s Br. at 21.)
12
A.2d at 1094. There are a legion of cases recognizing that a legislative classification
which appears to be facially discriminatory may nevertheless be deemed lawful if the
classification has a rational relationship to a legitimate state purpose. Id. at 1095.
Furthermore, legislative classifications must be founded on “real distinctions in the
subjects classified and not on artificial or irrelevant ones used for the purpose of
evading the constitutional prohibition.” Id. (quoting Harrisburg School District v.
Hickok, 761 A.2d 1132, 1136 (Pa. 2000)). Finally, in analyzing a special
legislation/equal protection challenge, a reviewing court is free to hypothesize reasons
the General Assembly might have had for the classification of certain groups. Id.The WC Act is remedial legislation designed to compensate claimants for
earnings loss occasioned by work-related injuries. City of Erie v. Worker’s
Compensation Appeal Board (Annunziata), 838 A.2d 598, 601 (Pa. 2003). As
previously discussed, Act 111 was enacted simply to repeal Section 306(a.2) of the WC
Act invalidated by the Supreme Court and reenact the language clarifying the
guidelines to be used for IREs without proposing any substantive changes. Rose
Corporation, 238 A.3d at 552-53. The legislative intent behind Section 306(a.2) was
to ensure efficiency within the worker’s compensation system. Diehl v. Workers’
Compensation Appeal Board (I.A. Constr.), 607 A.3d 230 (Pa. 2010).
Claimant’s constitutional argument is asserted without supporting
references to legal authority or facts that Act 111 unconstitutionally violates his right
to equal protection. Not only were the cases cited by Claimant in his brief decided
prior to Protz II, his assertion that Act 111 is a special law passed in direct violation of
article III, section 32 of the Pennsylvania Constitution is not supported by any relevant
authority. There is no evidence that Claimant was treated differently than anyone else
who is eligible for workers’ compensation benefits; therefore, his equal protection
13
rights could not have been violated. Any employee who has received total disability
compensation pursuant to the WC Act for a period of 104 weeks is required to submit
to an IRE to determine the degree of impairment due to compensable injury. 77 P.S. §
511.3(1). If the degree of impairment is determined to be less than 35 % pursuant to
the AMA Guides, the employee shall then receive partial disability benefits. 77 P.S. §
511.3(2). The change in disability status does not change the amount of compensation
during the 500 weeks of partial disability. 77 P.S. § 511.3(3).
Here, Claimant underwent an IRE which resulted in an impairment rating
of 11%, therefore his disability status was modified to partial disability. Employer then
properly received credit for the weeks of partial disability paid between September 20,
2011 and November 1, 2016, pursuant to the plain language of Section 3 of Act 111.
Rose Corporation, 238 A.3d at 563. Therefore, nothing in the record supports the
assertion that Claimant was somehow treated differently, and his argument is without
merit.
IRE
Claimant argues that because Dr. Kline failed to obtain and review
Claimant’s medical records of treatment for the most recent three years immediately
before the IRE and the diagnostic studies in the seven years immediately before the
IRE violates foundational requirements for an IRE by the AMA Guides. (Petitioner’s
Brief at 24.) Even though Claimant submits that the AMA Guides do not set forth
specific medical records physicians must obtain, review, or consider, the AMA Guides
state that the IRE should include a comprehensive, accurate medical history and a
review of all pertinent records. Id. Claimant also asserts that the AMA Guides also
state that the physician needs to review and document actual studies and findings from
relevant diagnostic studies, including laboratory tests, x-rays, Computed Tomography
14
(CT) scans, MRI scans, ultrasound exams and Electromyography/Nerve Conduction
Studies (EMG/NCS). Id. Claimant argues that Dr. Kline did neither, resulting in
inadequate foundation for the IRE testimony. Id.
It is well established that the WCJ is the factfinder, and it is solely for the
WCJ to assess credibility and to resolve conflicts in the evidence. Hawbaker v.
Workers’ Compensation Appeal Board (Kriner’s Quality Roofing Services &
Uninsured Employer Guaranty Fund), 159 A.3d 61, 69 (Pa. Cmwlth. 2017). Neither
the Board nor this Court may reweigh the evidence or the WCJ’s credibility
determinations. Id. In addition, it is solely for the WCJ, as the factfinder, to determine
what weight to give to any evidence. Id. As such, the WCJ may reject the testimony of
any witness in whole or in part. Id. In this regard, “[d]etermining the credibility of the
witnesses is . . . not an exact science, and the ultimate conclusion comprises far more
than a tally sheet of its various components.” Dorsey v. Workers’ Compensation Appeal
Board (Crossing Construction Co.), 893 A.2d 191, 195-96 (Pa. Cmwlth. 2006)
(declining to “dissect and analyze each of the WCJ’s reasons for his credibility
determination”). For purposes of appellate review, it is irrelevant whether there is
evidence to support contrary findings; if substantial evidence supports the WCJ’s
necessary findings, those findings will not be disturbed on appeal. Verizon
Pennsylvania Inc. v. Workers’ Compensation Appeal Board (Mills), 116 A.3d 1157,
1162 (Pa. Cmwlth. 2015).
In this case, Employer submitted the testimony of Dr. Kline, who is board
certified in physical medicine, rehabilitation, and pain management and performed the
IRE of Claimant on August 11, 2020. Dr. Kline took Claimant’s history, reviewed
medical records and diagnostic studies, and performed a physical examination. Dr.
Kline understood that Claimant’s 2005 work injury was a recurrence of an earlier L4-
15
5 disc herniation with radicular symptoms, for which he underwent decompression
surgery. The work injury also included arachnoiditis. Dr. Kline testified that based on
the work injury, Claimant had a whole person impairment rating of 11% under the
AMA Guides. Dr. Kline opined that Claimant was at MMI, explaining that Claimant
was 15 years out from the injury and had undergone surgery, and that his condition was
stable and not likely to change for the better or worse throughout the course of the next
year, with or without additional medical treatment. Dr. Kline reviewed an October 2,
2020 report from Claimant’s treating physician, Dr. Santo, who believes that Claimant
is fully and completely disabled despite any impairment rating, and that his condition
is steadily worsening. Dr. Kline testified that Dr. Santo’s report did not change his
medical opinion and that Dr. Santo appears to have limited knowledge of the AMA
Guides’ definition of MMI. On cross-examination, Dr. Kline testified that the most
recent diagnostic test he reviewed was an MRI from 2013. In addition, Dr. Kline
reviewed Dr. Santo’s records from 2006 to 2017, as well as the October 2020 report,
but there were three years of records, from 2017 to 2020, that Dr. Kline did not see.
Nevertheless, Dr. Kline testified that he discussed Claimant’s current treatment and
symptoms with him and had enough information to perform the IRE. Dr. Kline also
reiterated his opinion that Claimant “is truly at [MMI] . . . I don’t really think that’s
even debatable, at this point. I mean - - even two years following the surgical
intervention, it would generally render you at [MMI]. At this point, he is now 15 years
out from the injury[.]” (Dr. Kline Dep., 12/22/2020 at 10-11, 13-33, 36, 38-39, 41-48,
55-60, 62-63, 108; R.R. at 121a.) The WCJ accepted as credible Claimant’s testimony
regarding his work injury, the treatment he received thereafter, the fact that it has been
years since he discussed possible surgery with Dr. Santo, and the fact that except for a
change in medication, his treatment has not changed over the past five years. (FOF
16
9(a).) The WCJ accepted Dr. Kline’s testimony as credible and consistent with the
AMA Guides, including his opinion that Claimant was at MMI. Id. 9(c). The WCJ
found there was no medical evidence of record indicating that Claimant was not at
MMI under the AMA Guides. Id. Based on the credible evidence, the WCJ found that
Dr. Kline conducted the August 11, 2020, IRE in accordance with the AMA Guides
and that Claimant was at MMI relative to his work injury and had a whole person
impairment rating of 11 %. Id. 9(d).
Upon review, we determine that the WCJ did not err in granting
Employer’s Modification Petition based on Dr. Kline’s IRE. We find Claimant’s
second argument without merit.
IV. Conclusion
Upon review, we affirm the Board.
________________________________
PATRICIA A. McCULLOUGH, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Steven Conrad, :
Petitioner :
: No. 557 C.D. 2022
v. :
:
Department of Transportation :
(Workers’ Compensation :
Appeal Board), :
Respondent
ORDER
AND NOW, this 26th day of February, 2024, the order of the Workers’
Compensation Appeal Board, dated May 12, 2022 is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge