McGaffin v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge SMITH-RIBNER.

I respectfully dissent from the majority’s ruling that the significant first-impression issue presented in this case may not be addressed because the issue was waived. The issue concerns whether a Workers’ Compensation Judge (WCJ) may entertain and grant a termination petition when an unappealed permanent impairment rating is in place 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. § 511.2. Laurence A. McGaffm (Claimant) suffered injury in a fall on February 8, 1999. He had back *103surgery related to the work injury, but he has continued to treat with Dr. Anna Matthew for pain. As the majority relates, at the request of Manatron, Inc. (Employer), Claimant submitted to an impairment rating evaluation (IRE) pursuant to Section 306(a.2)(1) of the Act, 77 P.S. § 511.2(1), performed by Nenad Janicijevic, M.D., F.A.C.E.P., on August 22, 2001. Certified Record, Judge Ex. B.

Section 306(a.2)(l) provides that when an employee has received total disability compensation pursuant to Section 306(a), 77 P.S. § 511, for a period of 104 weeks, unless otherwise agreed to, the employee shall be required to submit to a medical examination by a physician with specified qualifications, which shall be requested by the insurer within 60 days of the expiration of 104 weeks, to determine the degree of impairment due to the compensable injury, if any, applying the standards in the most recent edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment” (AMA Guides). Section 306(a.2)(2), 77 P.S. § 511.2(2), provides that if the threshold impairment rating is 50 percent or above under the AMA Guides, the employee shall be presumed to be totally disabled, and he or she shall continue to receive total disability benefits. If the rating is less than 50 percent, the employee shall then receive partial disability benefits under Section 306(b), 77 P.S. § 512. Under Section 306(a.2)(3), 77 P.S. § 511.2(3), this change shall not affect the amount of compensation unless otherwise agreed to or adjudicated based on a determination of earning power under Section 306(b)(2), 77 P.S. § 512(b)(2), although an insurer or employee may show at any time during the 500-week period of partial disability that earning power has changed. As amicus Pennsylvania Trial Lawyers Association stresses, Section 306(a.2)(8)(i), 77 P.S. § 511.2(8)(i), provides that for purposes of Section 306(a.2), “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.” (Emphasis added.)

The IRE report of Dr. Janicijevic from August 22, 2001, based on the doctor’s review of 259 pages of clinical medical records for Claimant along with his physical examination, established an impairment rating of 26 percent of the whole person. Certified Record, Judge Ex. B. This independent impairment rating determination was not appealed. See Section 306(a.2)(4), 77 P.S. § 511.2(4) (providing that an employee may appeal the change to partial disability at any time during the 500-week period).1 Employer arranged for Claimant to be examined by Roger Ferguson, M.D. on March 12, 2002. Dr. Ferguson prepared a report opining that Claimant had a *104normal physical evaluation in all areas. On May 31, 2002, Employer filed a termination petition. The proceeding was consolidated with that on a petition to review filed by Claimant seeking to correct the description of-the injury in the amended notice of compensation payable to include clinical depression. The IRE was admitted into the record and is identified in the decision of the WCJ as Judge Ex. B. After hearings and the submission of depositions and reports by physicians for Claimant and for Employer and by Claimant’s treating psychologist and a psychiatrist testifying for Employer, the WCJ granted the termination petition and denied the review petition.

As noted by the majority, Claimant’s appeal to the Workers’ Compensation Appeal Board (Board) did not specifically mention the effect of the unappealed IRE. The appeal exceptions stated, inter alia, that Dr. Ferguson evaluated Claimant once for an independent medical examination and that Dr. Ferguson rejected Claimant’s recognized diagnosis. Claimant represents to the Court that both he and Employer filed briefs with the Board addressing the sole question of whether the WCJ had authority to grant the termination petition when an earlier IRE had determined that Claimant was permanently, impaired as a result of his work injury.2 Claimant includes in the Reproduced Record a copy of his brief. While I agree that the Court may not consider the brief, which is not included in the record certified to the Court by the Board nor certified and transmitted as a supplemental record pursuant to Pa. R.A.P.1926, I disagree that the failure of Claimant or of the Board to include the brief in the certified record is sufficient reason to find waiver and to dismiss the appeal.

First, I note that the question of waiver of the effect of the IRE is not raised by Employer but rather is raised by the majority sua sponte. As the majority acknowledges, Employer responds with an argument on the merits of this issue. Questions that involve a want of subject matter jurisdiction may be raised by the Court sua sponte. Heath v. Workers’ Compensation Appeal Board (Pennsylvania Board of Probation and Parole), 580 Pa. 174, 860 A.2d 25 (2004). In the present case, however, the question is not one of subject matter jurisdiction because the Court plainly has authority to determine controversies of the general class to which the case belongs. See id.; also see Riedel v. Human Relations Commission of Reading, 559 Pa. 34, 739 A.2d 121 (1999) (holding that where the question did not involve subject matter jurisdiction, this Court should not have raised sua sponte whether the local commission had authority to enforce a provision not analogous to any in the statewide human relations statute). The present matter is not like Heath and Riedel, where this Court raised a determinative substantive issue sua sponte.

*105Although it is well settled that issues not raised before the Board are waived, Jonathan Sheppard Stables v. Workers’ Compensation Appeal Board (Wyatt), 739 A.2d 1084 (Pa.Cmwlth.1999), the representation of counsel for Claimant, which is not challenged or disputed by Employer, is that the sole issue of the effect of the unap-pealed permanent impairment rating was raised in their argument before the Board and in their briefs to the Board. If this is true, then the issue was raised before the Board. The majority refers to a statement in Matticks v. Workers’ Compensation Appeal Board (Thomas J. O’Hora Co., Inc.), 872 A.2d 196 (Pa.Cmwlth.2005), that it was unavailing that an employer argued an issue to the Board in its brief where it failed to comply with 34 Pa.Code § 111.11(a) by not raising the issue in the appeal documents. However, Matticks and Jonathan Sheppard Stables, upon which it relied, were both cases where the employer listed findings of fact and conclusions of law that were challenged without providing any specific bases for the challenges stated, thereby violating § 111.11(a) and failing to preserve any issues at the outset. There is no dispute here that McGaffin initially complied with 34 Pa. Code § 111.11(a) by filing an appeal raising issues with the required specificity. Also in Matticks the waiver issue was raised by the opposing party and not raised by the Court sua sponte.

The Court recently concluded in Pennsylvania Independent Waste Haulers Association v. Township of Lower Merion, 872 A.2d 224, 228 n16 (Pa.Cmwlth.2005), that even though the township did not raise before the trial court an issue regarding the severance of offending licensing and inspections provisions of the township’s code, this Court might address the issue because the association did not argue that the issue was waived and, as a result, the association had “waived any potential waiver of the issue.... ” The Court cited Musko v. Workers’ Compensation Appeal Board (Calgon Carbon Corporation), 729 A.2d 657, 659, n6 (Pa.Cmwlth.1999), where Judge Doyle concluded that, although the issue regarding failure of the WCJ to order payment of the claimant’s medical bills up to the date of decision was not raised before the Board and ordinarily would constitute a waiver for appellate review, the employer did not argue that the issue was waived and “accordingly, has waived the waiver of the issue, and we will address it.” In these cases, the Court refused to sua sponte raise waiver of an issue even when the issue had not been raised before the Board, unlike the situation here where the issue of the IRE’s impact upon the termination petition in fact was raised before the government unit.

Additionally, in Sheridan v. Workers’ Compensation Appeal Board (Anzon, Inc.), 713 A.2d 182 (Pa.Cmwlth.1998), the Court did observe that the claimant’s statement of an issue in his notice of appeal to the Board was sufficient to make it an issue “raised before the government unit” within the meaning of Pa. R.A.P. 1551(a), even though the claimant did not file a brief with the Board arguing the issue. The Court went on to state, however, that even if it were to conclude that the claimant’s failure to file a brief constituted waiver, such would not bar the Court from addressing the issue, citing Link v. Lipsett Steel Prods., Inc., 9 Pa.Cmwlth. 98, 305 A.2d 387 (1973). It noted further that where an appellant’s failure to adequately raise an issue below does not interfere with an appellate court’s ability to exercise effective appellate review, the appellate court may address the issue and that even where a lower tribunal does not address an issue, an appellate court may do so if all of the facts necessary to the appellate court’s *106decision have been found by the fact finder, citing Shuman v. Cumberland Valley School District Board of Directors, 113 Pa.Cmwlth. 63, 536 A.2d 490 (1988). Thus in Sheridan a precise statement of an issue in the appeal documents to the Board was not viewed as an absolute condition to the Court’s review.3

Under the circumstances here where the issue deemed waived by the majority in fact was raised before the Board and Employer presented no waiver argument to this Court, it is clear that the proper course is to vacate the Board’s order and to remand this case to the Board for a determination of the question raised by Claimant: namely, whether a WCJ has the authority to rule that a claimant’s benefits may be terminated on the basis of a determination of full recovery from a work-related injury while an impairment rating evaluation establishing the claimant’s permanent impairment remains unaltered. I therefore dissent from the dismissal of Claimant’s appeal.

. I note that following the Section 306(a.2) procedure resulted in a substantive change in Claimant's status from total disability status to partial disability status, the same as would otherwise result from an adjudication on a modification petition filed by employer or from an agreement filed with the Board, although there was no legal proceeding involved. As the Supreme Court stated in Gardner v. Workers' Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 380, 888 A.2d 758, 766 (2005):

The General Assembly thus has supplemented the traditional approach for securing a reduction in benefits to partial disability by incorporating the concept of an IRE, providing for a self-executing, automatic modification of benefits where an insurer secures a dispositive impairment rating within a defined time period, under 77 P.S. § 511.2(l)-(2), and affording insurers the opportunity to establish an impairment rating in other time periods to reduce benefits via the traditional administrative process, under [Section 306(a.2)(5)-(6),] 77 P.S. §511.2(5-6). (Emphasis added.)

. Claimant argued before the Court that the WCJ lacked jurisdiction to grant a termination petition when an existing IRE established a permanent impairment of 26 percent and there had been no effort to secure another IRE that might show a different permanent impairment. Claimant also argued that he could raise the WCJ's lack of jurisdiction because Pa. R.A.P. 1551(a)(2) authorizes a question to be raised before the appellate court regarding “the jurisdiction of the government unit over the subject matter of the adjudication.” Claimant's argument, however, is that the WCJ erred as a matter of law in ruling as he did, not that the WCJ lacked competency to consider controversies of the general class to which the case presented belongs. Heath v. Workers' Compensation Appeal Board (Pennsylvania Board of Probation and Parole), 580 Pa. 174, 860 A.2d 25 (2004). He conceded that he did not raise the jurisdiction question before the WCJ.

. As cases such as Pennsylvania Independent Waste Haulers, Musko and Sheridan illustrate, the question of compliance with Pa. R.A.P. 1551(a) is not a jurisdictional question.