Opinion
No. 1172 C.D. 2012
05-07-2013
Robert Carter, Petitioner v. Workers' Compensation Appeal Board (GenCorp, Inc.), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Robert Carter (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board). The Board reversed the decision of a Workers' Compensation Judge (WCJ), which denied and dismissed a petition for physical examination filed by GenCorp, Inc. (Employer) against Claimant. The Board's order also directed Claimant to attend an impairment rating evaluation (IRE). We now quash Claimant's petition for review.
Claimant sustained a work-related injury on September 28, 1999, and received benefits pursuant to a notice of compensation payable. (Reproduced Record (R.R.) at 25a.) On or about August 13, 2010, Employer filed an examination petition, requesting the WCJ to order Claimant to submit to a physical examination for purposes of an IRE, alleging that Claimant refused or failed to appear at a physical examination on July 27, 2010. (R.R. at 1a.) Employer also alleged that the date of the last physical examination of Claimant was June 5, 2000. (Id.) Claimant filed an answer to the examination petition indicating that, inter alia, Employer was not entitled to an IRE because Employer failed to obtain an opinion with respect to whether Claimant has reached maximum medical improvement (MMI). (Id. at 5a.)
By decision and order dated December 7, 2010, the WCJ denied and dismissed Employer's examination petition. (Id. at 7a-12a.) In addressing Claimant's argument that Employer is not entitled to an IRE until Employer establishes that Claimant has reached MMI, the WCJ looked to Section 306(a.2) of the Workers' Compensation Act (Act) and this Court's decision in Combine v. Workers' Compensation Appeal Board (National Fuel Gas Distribution Corp.), 954 A.2d 776 (Pa. Cmwlth. 2008), appeal denied, 600 Pa. 765, 967 A.2d 961 (2009), for guidance. In rejecting Employer's argument that Combine makes it clear that an IRE physician can conduct the MMI evaluation, the WCJ interpreted Combine and Section 306(a.2) to require that Employer first independently establish that Claimant has reached MMI by means of an examination performed by a physician other than the IRE physician before requesting that Claimant undergo an IRE. (Id. at 10a-11a.) Because Employer had failed to establish Claimant's MMI in such a manner, the WCJ concluded that it was not reasonable to have Claimant undergo an IRE at that time. (Id. at 11a.)
Act of June 2, 1915, P.L. 736, added by the Act of June 24, 1996, P.L. 350, 77 P.S. § 511.2. Under Section 306(a.2) of the Act, when an employee has received total disability compensation for a period of 104 weeks, an insurer shall request, and an employee shall submit to, a physical examination to determine the degree of impairment due to the employee's compensable injury.
Employer appealed to the Board, which reversed the decision and order of the WCJ and directed Claimant to attend an IRE. (Id. at 31a.) The Board concluded that the WCJ's interpretation of Combine and Section 306(a.2) of the Act was incorrect. (Id. at 29a-30a.) The Board concluded that in Combine, this Court did not hold that under Section 306(a.2) an employer was required to independently establish that a claimant had first reached MMI by means of an examination performed by a physician other than the IRE physician before conducting an IRE. (Id. at 28a-29a.) Rather, the Board interpreted Combine to hold that an IRE physician may opine as to whether a claimant has reached MMI prior to conducting an IRE, stating that this Court's conclusion in Combine was that the IRE physician was required to conduct an MMI evaluation before evaluating the claimant's impairment rating. (Id. at 29a-30a.) The Board also concluded that, under the circumstances of this matter, Section 306(a.2)(1) of the Act imposes a mandatory obligation on Claimant to submit to the IRE examination requested by Employer. (Id. at 30a.)
Claimant now petitions this Court for review, arguing that (1) the Board erred in concluding that Employer does not need to offer proof of a prior independent MMI evaluation of Claimant before requesting an IRE and (2) the Board erred in ordering Claimant to attend an IRE.
This Court's standard of review of a decision of the Board is limited to considering whether necessary factual findings are supported by substantial evidence, and whether an error of law or violation of constitutional rights occurred. 2 Pa. C.S. § 704.
Although not addressed by the parties in their initial briefs to this Court, in Groller v. Workers' Compensation Appeal Board (Alstrom Energy Systems), 873 A.2d 787 (Pa. Cmwlth. 2005), appeal denied, 587 Pa. 708, 897 A.2d 1185 (2006), this Court held that an order requiring a claimant to submit to an IRE is a non-appealable, interlocutory order. Id. at 789; see Kuzo v. Workers' Comp. Appeal Bd. (St. Luke's Miner's Memorial Med Center), 936 A.2d 1216, 1218 (Pa. Cmwlth. 2007) (quashing appeal of interlocutory order to submit to IRE for lack of jurisdiction), appeal denied, 596 Pa. 756, 947 A.2d 738 (2008). Because the Board's order is a non-appealable, interlocutory order, we lack jurisdiction to consider this matter at this juncture.
By order dated February 20, 2013, this Court allowed the parties the opportunity to address our decision in Groller and Kuzo by directing the parties to submit memoranda of law on the issue of whether the Board's order in this matter constitutes a non-appealable, interlocutory order. Based on our review of the memoranda of law submitted by Claimant and Employer, we are unconvinced that this matter is distinguishable from the precedent cited above. --------
Accordingly, we quash Claimant's petition for review.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 7th day of May, 2013, the petition for review filed by Robert Carter is hereby QUASHED.
/s/_________
P. KEVIN BROBSON, Judge BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
CONCURRING OPINION BY SENIOR JUDGE FRIEDMAN
I respectfully concur in the result. I write separately to address Robert Carter's (Claimant) argument that the order of the Workers' Compensation Appeal Board (Board) requiring Claimant to submit to an impairment review evaluation (IRE) is appealable under Pa. R.A.P. 311(f), which provides:
(f) Administrative remand. An appeal may be taken as of right from: (1) an order of a common pleas court or government unit remanding a matter to an administrative agency or hearing officer for execution of the adjudication of the reviewing tribunal in a manner that does not require the exercise of administrative discretion; or (2) an order of a common pleas court or government unit remanding a matter to an administrative agency or hearing officer that decides an issue which would ultimately evade appellate review if an immediate appeal is not allowed.(Emphasis added.) Here, the Board's order did not remand this matter to the workers' compensation judge (WCJ). Rather, the Board reversed the order of the WCJ and ordered Claimant to attend an IRE. Because the Board's order did not remand this matter to the WCJ, Pa. R.A.P. 311(f) is inapplicable.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge