Edinger v. Salvage

1

Lloyd Edinger, Petitioner v. Rhodes Salvage/Edward Rhodes (Workers' Compensation Appeal Board), Respondent

No. 916 C.D. 2021

Commonwealth Court of Pennsylvania

April 25, 2023

OPINION NOT REPORTED

Submitted: March 25, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, ELLEN CEISLER STACY WALLACE, Judges

MEMORANDUM OPINION

RENÉE COHN JUBELIRER, PRESIDENT JUDGE

Lloyd Edinger (Claimant) petitions for review of a July 27, 2021 Order of the Workers' Compensation Appeal Board (Board), reversing a decision by a Workers' Compensation Judge (WCJ), suspending Claimant's benefits, and granting Rhodes Salvage/Edward Rhodes (Employer) a dollar-for-dollar credit against Claimant's future benefits from September 9, 2019, the date Claimant failed to attend a scheduled impairment rating evaluation (IRE), until Claimant attends an IRE. Before this Court, Claimant does not dispute that he did not attend the IRE but instead argues the Board erred because Employer's Suspension Petition was premature, pursuant to Bechtel Power Corporation v. Workmen's Compensation Appeal Board (Miller), 452 A.2d 286 (Pa. Cmwlth. 1982), as Claimant was appealing a separate WCJ order directing that he attend the IRE at the same time. Claimant also argues the Board erred in concluding Claimant had to seek supersedeas because the WCJ did not suspend Claimant's benefits. Finally, Claimant asserts the Board exceeded the scope of its authority when it ordered the dollar-for-dollar credit against future compensation benefits until Claimant attended the IRE and failed to consider Claimant's financial circumstances in making the award.^[1] Upon review, we affirm.

I. BACKGROUND

Given the issues involved and the parties' arguments, it is necessary to review the chronology of events leading up to this appeal. On May 9, 2008, Claimant suffered a work injury, specifically, lumbar spondylosis with radiculopathy, while in the course of employment with Employer. (Certified Record (C.R.) Item 19, 8/6/19 WCJ Decision, Finding of Fact (FOF) ¶ 1.) On April 11, 2019, Employer requested Claimant submit to an IRE pursuant to newly enacted Section 306(a.3) of the Workers' Compensation Act (WC Act), which was added by Section 1 of the Act of October 24, 2018, P.L. 714, No. 111 (Act 111).^[2] (Id. ¶ 3.)

An IRE was scheduled for May 28, 2019, and Claimant was notified of the appointment. (8/6/19 WCJ Decision, FOF ¶ 4.) Claimant's counsel notified Employer that Claimant would not attend the scheduled IRE because he believed Act 111 was unconstitutional, similar to the former IRE provision. (Id.) On May 28, 2019, Employer filed a Petition for Examination seeking an order from the WCJ to compel Claimant to attend an IRE, which the WCJ granted by Order dated August 5, 2019. In the decision accompanying the order, the WCJ stated that "Claimant, while having a legally cognizable legal argument as to why he should not attend the IRE . . ., the law, as written, obliges him to attend."^[3] (Id. ¶ 6.) The WCJ further explained that "[t]he failure of [] Claimant to attend a properly scheduled [IRE] would potentially preclude a legal determination regarding the propriety of Act 111" and "presupposes that [] Claimant's impairment rating would be less than 35%," which, under Act 111, would result in a change in Claimant's disability status from total to partial disability. (Id. ¶ 7.) The WCJ also stated that the "[i]nterest of judicial economy dictate[s] that the case would be in the proper posture for litigation once the [IRE] is conducted and [] Employer . . . attempts to modify [] Claimant's benefits based upon the results of that exam." (Id. ¶ 8.)

On August 12, 2019, Employer sent Claimant a letter advising the IRE had been rescheduled to September 9, 2019. (C.R. Item 21; see also C.R. Item 22.) On August 15, 2019, Claimant appealed the August 6, 2019 Decision ordering the IRE to the Board. (C.R. Item 13.) On August 26, 2019, Employer filed a Motion to Quash Claimant's Appeal with the Board, alleging the WCJ's order directing Claimant attend the IRE was an interlocutory order. (C.R. Item 14.)

On September 9, 2019, Claimant did not appear for the IRE. (C.R. Item 20; see also 12/18/19 WCJ Decision, FOF ¶ 5.) On September 27, 2019, Employer filed a Suspension Petition, alleging Claimant failed to appear for the IRE, as ordered. (C.R. Item 2.) On December 3, 2019, Claimant filed an answer, wherein Claimant asserted the Suspension Petition was "barred and collaterally estopped" because "this identical issue is currently on appeal." (C.R. Item 4.) Accordingly, Claimant requested that the Suspension Petition be dismissed with prejudice and sought an award of counsel fees. (Id.) In addition, Claimant stated he would attend a rescheduled IRE if it was "stipulated that he [wa]s not waiving any rights to object to the nature of the exam on constitutional or any other grounds." (Id.) The Suspension Petition was assigned to the same WCJ who issued the August 6, 2019 Order directing Claimant to attend the IRE. (C.R. Item 3.)

On December 18, 2019, the WCJ issued a Decision denying Employer's Suspension Petition. The WCJ recounted the procedural history of the matter and noted that the Board had yet to act on Claimant's appeal of the WCJ's prior order directing Claimant attend the IRE or Employer's Motion to Quash related thereto. (12/18/19 WCJ Decision ¶¶ 1-8.) As a result, the WCJ found he lacked the authority to act on the Suspension Petition, explaining that any such decision might conflict with the Board's and would "divest [] Claimant of his right of appeal to the . . . Board," as guaranteed by the WC Act. (Id. ¶¶ 9-10.) In particular, the WCJ found this Court's decision in Bechtel "persuasive," stating:

While the parties would have the ability to pursue other [p]etitions pending the [d]ecision of the . . . Board, [] Employer's [Suspension] Petition goes to the heart of the issue currently pending before the . . . Board. [] Employer would have the right to have [] Claimant attend a physical examination and an expert interview for purposes of filing a Modification Petition based upon earning capacity. Likewise, [] Claimant would have available to him the right to file a Petition to Review to amend the description of injury. Petitions of this type could not be adversely impacted by any [d]ecision rendered by the . . . Board on the pending Petition.

(Id. ¶ 11.)

The WCJ further found "[t]he appeal provides [] Claimant with a reasonable excuse for failing to attend the . . . IRE." (Id. ¶ 12.) Accordingly, the WCJ denied Employer's Suspension Petition.^[4] Employer timely appealed to the Board on January 3, 2020.

Shortly thereafter, the Board issued its January 7, 2020 order quashing Claimant's appeal of the WCJ order directing him to attend the IRE, concluding it lacked jurisdiction over the interlocutory order. See Edinger v. Workers' Comp. Appeal Bd. (Rhodes Salvage/Edward Rhodes) (Pa. Cmwlth., No. 127 C.D. 2020, filed June 30, 2020), slip op. at 3 (single-judge op.) (Edinger I). This Court affirmed the Board's order on June 30, 2020, holding "precedent clearly holds that a WCJ's order directing a claimant to attend an IRE is interlocutory and unappealable." Id. at 5.^[5]

On July 27, 2021, the Board issued its Opinion and Order, which is the subject of the instant appeal. The Board concluded the WCJ erred in failing to grant the Suspension Petition where Claimant did not comply with a WCJ order directing him to attend an IRE and did not request supersedeas while Claimant's appeal of that order was pending before the Board. (Board Opinion (Op.) at 4.) The Board explained Employer made the request for Claimant to attend the IRE pursuant to Section 306(a.3)(6) of the WC Act, and when Claimant initially refused, the WCJ ordered Claimant's attendance pursuant to Section 314 of the WC Act, 77 P.S. § 651. (Board Op. at 5.) The Board further stated that, consistent with Section 314, when a claimant refuses to attend an examination ordered by a WCJ, "without reasonable cause or excuse," the remedy is to deny the claimant "'the right to compensation' during the period of time that [the claimant] continues to refuse or neglect to attend an examination." (Id. (quoting 77 P.S. § 651).)

Here, the Board determined that, contrary to the WCJ's conclusion that Claimant had a "right to appeal," Claimant did not because the order from which he appealed was interlocutory and, therefore, not appealable. (Id. at 5-6.) The Board also concluded that an appeal of an order to attend an examination under Section 314 does not operate as an automatic supersedeas and an appeal of an interlocutory order is not a reasonable excuse for noncompliance with an order directing attendance. (Id. at 6 (citing Bradley v. Workers' Comp. Appeal Bd. (County of Delaware), 919 A.2d 293 (Pa. Cmwlth. 2006), and McCormick v. Workers' Comp. Appeal Bd. (City of Philadelphia), 734 A.2d 473 (Pa. Cmwlth. 1999)).) By concluding the appeal was a reasonable excuse for failing to attend the IRE, the Board concluded "the WCJ misapplied the law, resulting in an abuse of discretion." (Id.)

The Board further held that the WCJ erred in applying Bechtel, stating that "[u]nlike a case involving a normal appeal, Claimant here attempted to have the Board and [this] Court review a WCJ's [o]rder that was interlocutory and non-appealable," and thus "[t]here was never an appeal pending before the reviewing authorities that could have been impacted by the litigation of the Suspension Petition, or vice versa," which is "[t]he evil" that Bechtel aimed to avoid. (Id. at 7.) Assuming Claimant had a right to appeal the order directing him to attend the IRE, the Board stated Claimant did not seek supersedeas to stay his obligation to attend the IRE. (Id. at 8.) The...