Diane Hinkle, Petitioner,
Workers’ Compensation Appeal Board (Pennsylvania Liquor Control Board and CompServices, Inc.), Respondents.
No. 2645 C.D. 2010.
Commonwealth Court of Pennsylvania.
Submitted: March 25, 2011.Filed: May 3, 2011.
BEFORE: BONNIE BRIGANCE LEADBETTER, President Judge; PATRICIA A. McCULLOUGH, Judge; JOHNNY J. BUTLER, Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER
Diane Hinkle petitions for review of the order of the Workers’ Compensation Appeal Board (Board), which affirmed the decision of the Workers’ Compensation Judge (WCJ) to grant the modification petition of the Pennsylvania Liquor Control Board (Employer). We reverse.
Hinkle suffered a work-related shoulder injury in September 2000, and began receiving benefits pursuant to the Pennsylvania Workers’ Compensation Act (Act). In 2008, Employer requested an Impairment Rating Evaluation (IRE). Hinkle underwent an IRE conducted by Dr. Eduardo Violago on June 11, 2008. Dr. Violago submitted a report indicating that, based on his exam and the standards in the Fifth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (Impairment Guide), Hinkle had a whole person impairment rating of 8%. Based on this report, Employer filed a Petition to Modify Compensation Benefits, alleging that Hinkle was only entitled to partial benefits.
Before the WCJ, Hinkle argued that Dr. Violago’s report was flawed because it relied on an outdated version of the Impairment Guide. It is undisputed that Dr. Violago based his 2008 report on the Fifth Edition, when the Sixth Edition was published in December 2007. Section 306(a.2)(5) of the Act requires that:
Total disability shall continue until … 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 [Impairment Guide].
77 P.S. § 511.2(5) (emphasis added). In response, Employer argued that it would be impractical to immediately require doctors to base their opinions on new editions of the Impairment Guide when a new edition is published, as it takes time for them to acquire the necessary certification to do so. In addition, Employer pointed to a statement published in the Bureau of Workers’ Compensation’s “News and Notes” in the winter of 2007, which stated:
The [B]ureau will accept IREs performed using either the 5th or 6th editions of the Guides until August 31, 2008. Effective September 1, 2008, the [B]ureau will accept only IREs performed using the 6th edition of the Guides.
See Board Decision, filed Nov. 5, 2010, at 5. The WCJ granted the modification petition.
Hinkle appealed to the Board, continuing to argue that Dr. Violago’s report was flawed because it relied on an outdated version of the Impairment Guide, and arguing that the report could not be accepted because it failed to establish that Hinkle had reached Maximum Medical Improvement (MMI). The Board affirmed, and an appeal to this court followed.
On appeal, Hinkle raises both the Impairment Guide and MMI issues. However, we only find it necessary to reach the first issue.
This court has addressed a very similar topic in the past. In Stanish v. Workers’ Compensation Appeal Board (James J. Anderson Construction Co.), 11 A.3d 569 (Pa. Cmwlth. 2010), an employer sought self-executing relief under Section 306(a.2)(1) of the Act to move an employee from total to partial disability. That section, in language very similar to Section 306(a.2)(5), requires that “[t]he degree of impairment shall be determined based upon an evaluation by a physician … pursuant to the most recent edition of the [Impairment Guide].” Section 306(a.2)(1) of the Act, 77 P.S. § 511.2(1). As in this case, the employer’s IRE was based on the Fifth Edition of the Impairment Guide and had been performed after the publication of the Sixth Edition.
In Stanish, this court held that the Bureau’s decision, announced in its “News and Notes,” to accept IREs based on the Fifth Edition after the publication of the Sixth Edition was “inconsistent with the plain language of Section 306(a.2)(1) of the Act …. The Bureau’s interpretation of its regulation as expressed in its notification is, therefore, invalid and is hereby disregarded since it is contrary to the statutory intent.” Id. at 576 [citing Gardner v. Workers' Comp. Appeal Bd. (Genesis Health Ventures), 585 Pa. 366, 888 A.2d 758 (2005); Mercy Reg'l Health Sys. v. Dep't of Health, 645 A.2d 924 (Pa. Cmwlth. 1994)]. This court went on to conclude that the IRE based on the Fifth Edition was invalid and that the employer had therefore not met its burden to prove an impairment of less than 50%.
Employer argues against the application of Stanish to Section 306(a.2)(5) of the Act. Despite the similarity of the language, Employer argues that differences in the provisions require different results. Specifically, Section 306(a.2)(1) governs an employer’s request for an IREwithin sixty days of the 104th week of benefits. This relief, if granted, is backdated to the 104th week of benefits. See Ford Motor/Visteon Sys. v. Workers’ Comp. Appeal Bd. (Gerlach),970 A.2d 517 (Pa. Cmwlth. 2009). In contrast, Section 306(a.2)(5) governs requests for IREs after the 60-day window has closed. Modification in these cases takes effect from the date that the IRE was administered. Id. Employer argues that, under our holding in Stanish, at the time a new edition of the Impairment Guide is published, there will be a delay in conducting IREs while physicians receive the necessary training and certification. This is not an issue under Section 306(a.2)(1), because modifications are backdated to the end of the 104th week of benefits. If we apply Stanish to proceedings under Section 306(a.2)(5), however, the delay will impose costs on employers, because benefits will not be modified until the IREs actually take place.
Employer makes an interesting argument. However, Stanish is clearly controlling in this case. It interprets identical statutory language (“the most recent edition of the [Impairment Guide]“) from a different subsection of the very same section of the Act. In addition, the holding inStanish is mandated by the plain language of the Act. Quite simply, when the Act states that the most recent edition of the Impairment Guide is to be used, it means that the most recent edition must be used. “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded on the pretext of pursuing its spirit.” 1 Pa. C.S. § 1921(b). For this reason, if Employer is to receive relief from the problem it has identified, it must come from our General Assembly, not from this court.
We therefore hold that Dr. Violago’s IRE was invalid because it was based on an outdated version of the Impairment Guide. The Board erred in affirming the modification of Hinkle’sbenefits based on the invalid IRE. Therefore, we reverse.
AND NOW, this 3rd day of May, 2011, the order of the Workers’ Compensation Appeal Board in the above-captioned matter is hereby REVERSED. Jurisdiction relinquished.