Opinion
No. 1330 C.D. 2010
12-08-2011
Nicholas Ginter, Petitioner v. Workers' Compensation Appeal Board (Chili's Grill and Bar), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Nicholas Ginter (Claimant) petitions for review of the June 3, 2010, order of the Workers' Compensation Appeal Board (Board), which reversed the decision of a Workers' Compensation Judge (WCJ) to deny the petition of Chili's Grill and Bar (Employer) for an order directing Claimant to submit to an Impairment Rating Evaluation (IRE). Having concluded that this matter is not ripe for review, we dismiss Claimant's appeal as premature.
Claimant suffered a work related low back injury on September 14, 2006, and began receiving benefits pursuant to a Notice of Compensation Payable. On May 19, 2009, Employer filed a petition for an order directing Claimant to submit to an IRE pursuant to section 306(a.2) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1701-1719.2. This section was added by the Act of June 24, 1996, P.L. 350, 77 P.S. §511.2.
Section 306(a.2) of the Act provides:
Medical examination; impairment rating
(1) When an employe has received total disability compensation pursuant to clause (a) for a period of one hundred four weeks, unless otherwise agreed to, the employe shall be required to submit to a medical examination which shall be requested by the insurer within sixty days upon the expiration of the one hundred four weeks to determine the degree of impairment due to the compensable injury, if any. The degree of impairment shall be determined based upon an evaluation by a physician who is licensed in this Commonwealth, who is certified by an American Board of Medical Specialties approved board or its osteopathic equivalent and who is active in clinical practice for at least twenty hours per week, chosen by agreement of the parties, or as designated by the department, pursuant to the most recent edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment."
(2) If such determination results in an impairment rating that meets a threshold impairment rating that is equal to or greater than fifty per centum impairment under the most recent edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment," the employe shall be presumed to be totally disabled and shall continue to receive total disability compensation benefits under clause (a). If such determination results in an impairment rating less than fifty per centum impairment under the most recent edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment," the employe shall then receive partial disability benefits under clause (b): [FN2] Provided, however, That no reduction shall be made until sixty days' notice of modification is given.
(3) Unless otherwise adjudicated or agreed to based upon a determination of earning power under clause (b)(2), the amount of compensation shall not be affected as a result of the change in disability status and shall remain the same. An insurer or employe may, at any time prior to or during the five hundred-week period of partial disability, show that the employe's earning power has changed.
(4) An employe may appeal the change to partial disability at any time during the five hundred-week period of partial disability; Provided, That there is a determination that the employe meets the threshold impairment rating that is equal to or greater than fifty per centum impairment under the most recent edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment."
(5) Total disability shall continue until it is adjudicated or agreed under clause (b) that total disability has ceased or the employe's condition improves to an impairment rating that is less than fifty per centum of the degree of impairment defined under the most recent edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment."
(6) 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.
(7) In no event shall the total number of weeks of partial disability exceed five hundred weeks for any injury or recurrence thereof, regardless of the changes in status in disability that may occur. In no event shall the total number of weeks of total disability exceed one hundred four weeks for any employe who does not meet a threshold impairment rating that is equal to or greater than fifty per centum impairment under the most recent edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment" for any injury or recurrence thereof.
(8) (i) For purposes of this clause, the term "impairment" shall mean an anatomic or functional abnormality or loss that results from the compensable injury and is reasonably presumed to be permanent.
(ii) For purposes of this clause, the term "impairment rating" shall mean the percentage of permanent impairment of the whole body resulting from the compensable injury. The percentage rating for impairment under this clause shall represent only that impairment that is the result of the compensable injury and not for any preexisting work-related or nonwork-related impairment.
Claimant's answer to Employer's petition averred that he should not be compelled to submit to the physical examination because the IRE process is unconstitutional. The WCJ agreed and denied Employer's petition. The Board reversed and directed Claimant to attend the IRE.
On appeal to this Court, Claimant challenges the validity of the IRE provisions contained in Section 306(a.2) of the Act, arguing that they (1) unconstitutionally delegate the General Assembly's responsibility to determine liability and eligibility for Pennsylvania work injuries to the American Medical Association; and (2) abrogate the WCJ's role of making credibility determinations on the medical evidence. This Court is of the opinion, however, that the constitutional issues raised by Claimant are not ripe for our appellate review.
Our scope of review is to determine whether findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
"Ripeness" is defined as the presence of an actual controversy. Texas Keystone Incorporated v. Pennsylvania Department of Conservation and Natural Resources, 851 A.2d 228 (Pa. Cmwlth. 2004). As a legal principle, the concept of ripeness "arises out of a judicial concern not to become involved in abstract disagreements of administrative policies" and instructs this court to "review government actions only when the government's position has crystallized to the point at which a court can identify a relatively discrete dispute." Id. at 239. Lack of ripeness goes to this court's subject matter jurisdiction; thus we may raise the issue on our own. Id. n. 17.
The record in this case fails to specify any actual, present harm to Claimant. Although Claimant has been directed to attend an IRE, he will only be harmed if the examining physician determines that Claimant is, in fact, less than 50% impaired. See Section 306(a.2)(2) of the Act, 77 P.S. §511.2(2). Therefore, this court has no distinct context for review and there is no justiciable controversy at this time.
Accordingly, Claimant's petition is dismissed without prejudice.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 8th day of December, 2011, the petition for review of Nicholas Ginter is hereby dismissed without prejudice.
/s/_________
PATRICIA A. McCULLOUGH, Judge