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Commonwealth Court of Pennsylvania
October 23, 2020, Submitted; February 9, 2021, Filed
No. 423 C.D. 2020
[*1171] OPINION BY JUDGE CROMPTON
Johnny Pierson, Jr. (Claimant) petitions for review of the April 2, 2020 Opinion and Order (Order) of the Workers' Compensation Appeal Board (Board), affirming the November 8, 2019 Decision and Order of the Workers' Compensation Judge (WCJ), which granted the Petition to Modify Compensation Benefits (Modification Petition) filed by Consol Pennsylvania Coal Company LLC (Employer). In addition, Claimant requests that this Court grant his Application for Argument Before En Banc Panel (Application), filed on October 28, 2020, asserting that "this case presents issues of great public importance" and "will have a significant impact on the success or failure of many [w]orker[s'] [c]ompensation claimant[s'] cases," with a constitutional impact on the workers' compensation impairment rating evaluation (IRE) process provided in the Pennsylvania Workers' Compensation Act (Act).1 Application, 10/28/2020, at 1-2. For the [**2] reasons that follow, we deny Claimant's Application and affirm the Board's Order.
I. WCJ's Decision and Order
On August 13, 2014, Claimant sustained a work-related injury in the nature of a "labral tear of the right shoulder," after he tripped while unloading pipe. The injury was recognized by Employer via a Notice of Compensation Payable (NCP). WCJ's Decision and Order, 11/8/2019, Finding of Fact (FOF) No. 1.
[*1172] On December 21, 2018, Employer filed the Modification Petition, alleging that Claimant's benefits should be modified from temporary total disability (TTD) to partial disability, effective December 19, 2018, based on an IRE performed by Dr. Jeffrey Moldovan, D.O., on that date. FOF No. 2.
The WCJ found that Dr. Moldovan is trained and certified in the performance of IREs pursuant to the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (Guides). FOF No. 4.a. Dr. Moldovan determined that Claimant had a whole body impairment rating of three percent based on the Sixth Edition of the Guides. FOF No. 4.e. The WCJ accepted Dr. Moldovan's testimony as credible and determined that Claimant had reached maximum medical improvement [**3] and had a whole body permanent impairment of three percent as of December 19, 2018. FOF No. 7.
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252 A.3d 1169 *; 2021 Pa. Commw. LEXIS 386 **
Johnny Pierson, Jr., Petitioner v. Workers' Compensation Appeal Board (Consol Pennsylvania Coal Company LLC), Respondent
Subsequent History: Appeal denied by Pierson v. Workers' Comp. Appeal Bd. (Consol Pa. Coal Co. LLC), 2021 Pa. LEXIS 3414 (Pa., Aug. 17, 2021)
Prior History: Pierson v. Workers' Comp. Appeal Bd. (Consol Pa. Coal Co. LLC), 250 A.3d 547, 2020 Pa. Commw. Unpub. LEXIS 627 (Pa. Commw. Ct., Feb. 9, 2021)
Claimant, impairment, benefits, partial disability, total disability, orthopedics, calculation, Edition, asserts, workers' compensation, credible, argues, vested right, insurer, rating, retroactive, provisions, retroactive effect, effective date, time of injury, unconstitutional delegation, legislative authority, compensation benefit, en banc, disturbed
Administrative Law, Judicial Review, Standards of Review, Constitutional Right, Workers' Compensation & SSDI, Clearly Erroneous Standard of Review, Substantial Evidence, Evidence, Admissibility of Evidence, Medical Evidence, Benefit Determinations, Temporary Partial Disabilities, Governments, State & Territorial Governments, Legislatures, Legislation, Effect & Operation, Retrospective Operation, Temporary Total Disabilities, Administrative Proceedings, Awards, Credits, Interpretation