The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brandon Bonanno, :
Petitioner :
:
v. : No. 1266 C.D. 2024
:
Rosebud Mining Company : Submitted: June 3, 2025
(Workers’ Compensation Appeal :
Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: July 22, 2025
Brandon Bonanno (Claimant) petitions for review of the September 10,
2024 order of the Workers’ Compensation (WC) Appeal Board (Board), which
affirmed the WC Judge’s (WCJ) decision granting the modification petition
(Modification Petition) filed by Rosebud Mining Company (Employer). In the
Modification Petition, Employer sought to modify Claimant’s disability status from
total to partial disability based on the results of Claimant’s impairment rating
evaluation (IRE) conducted pursuant to Section 306(a.3)(1) of the WC Act.1 After
careful review, we must affirm.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. Section
306(a.3)(1) of the Act, added by the Act of October 24, 2018, P.L. 714, provides that once a claimant
receives 104 weeks of total disability benefits, the insurer or employer may require him to participate
in an IRE to assess the degree of impairment attributable to his compensable injury pursuant to the
American Medical Association “Guides to the Evaluation of Permanent Impairment,” Sixth Edition
(second printing April 2009) (AMA Guides). 77 P.S. § 511.3(1).
Background
The relevant facts and procedural history of this case are as follows. On
March 17, 2016, while Claimant was working for Employer as an underground coal
miner, a piece of equipment struck him in the back, pinning him to the floor. Employer
issued a Notice of Temporary Compensation Payable on March 28, 2016, which
converted to a Notice of Compensation Payable describing Claimant’s injury as a right
hip fracture, and Employer paid him total disability payments. The parties
subsequently executed various supplemental agreements documenting Claimant’s
periods of total, partial, and no disability. In June of 2019, the parties by agreement
expanded the work injury to include anxiety. Claimant filed a review petition, and on
December 13, 2019, WCJ Robert Vonada (WCJ Vonada) further expanded the
description of Claimant’s injury to include post-traumatic stress disorder (PTSD).
On December 29, 2022, Employer filed a Modification Petition seeking
to change Claimant’s disability status to partial based upon an IRE conducted by
Michael Wolk, M.D. (Dr. Wolk), which assigned Claimant a whole-person impairment
rating of 12 percent. At his April 6, 2023 deposition, Dr. Wolk testified that he is Board
certified in physical medicine and rehabilitation, spinal cord injury medicine, and
independent medical examinations (IMEs). Dr. Wolk further testified that he is
certified to perform IREs in Pennsylvania using the AMA Guides and was designated
by the Department of Labor and Industry, Bureau of WC, to be the IRE physician in
this case. (Notes of Testimony (N.T.), 4/06/23, at 5, 11.) Dr. Wolk indicated that he
practices medicine for at least 20 hours per week, spends the majority of his time on
patient care, and focuses his practice on inpatient and outpatient rehabilitation, treating
patients who have impairments that would result in a disability or handicap. (N.T., at
2
8-10.) Counsel for Claimant did not object to Dr. Wolk’s competency to testify during
voir dire, and the following exchange took place between counsel:
[Counsel for Employer]: I will now offer Dr. Wolk’s CV
with the accompanying Certificate and Recertification Letter
as Dr. Wolk Deposition Exhibit A.
[Counsel for Claimant]: No objection.
(Id. at 6 ) (emphasis added).
Dr. Wolk testified that he performed an IRE of Claimant on August 19,
2022, during which he obtained a medical history from Claimant, reviewed his medical
records, made a whole-person impairment rating calculation, and prepared a report.
After conducting the examination and considering Claimant’s history and medical
records, Dr. Wolk assigned Claimant a 7 percent whole-person impairment rating.
(N.T., at 15.)
Dr. Wolk relayed that he performed a second IRE of Claimant on
December 9, 2022, in order to consider his psychological conditions of anxiety,
depression, and PTSD. (N.T., at 20.) At that time, Claimant was attending therapy
sessions with a psychologist for treatment of his PTSD. Dr. Wolk testified that he
reviewed Claimant’s medical records and WCJ Vonada’s December 2019 decision
regarding Claimant’s diagnoses. Dr. Wolk explained that Chapter 14 of the AMA
Guides is used to establish the impairment rating for psychological conditions and that
using the three required scales, he calculated a whole-person impairment rating of 5
percent. (N.T., at 22-23, 25.) Dr. Wolk then combined the 5 percent psychiatric
impairment rating with the 7 percent rating for Claimant’s physical injury to arrive at
the whole-person impairment rating of 12 percent. (N.T., at 24.) At the conclusion of
Dr. Wolk’s direct testimony, the following exchange took place between counsel:
3
[Counsel for Employer]: I will now offer Dr. Wolk’s report
dated December 9th, 2022 as Exhibit C.
[Counsel for Claimant]: No objection.
(Id. at 24) (emphasis added).
On cross-examination, Dr. Wolk testified that he rated Claimant for
anxiety, depression, and PTSD, which are within Chapter 14 of the AMA Guides, and
that he came to these diagnoses by considering “what [Claimant] had told [him] plus
what was identified within the medical records.” (N.T., at 25.) Claimant did not
testify or submit any evidence in opposition to the Modification Petition.
By Decision and Order circulated November 7, 2023, WCJ Steven
Minnich (WCJ Minnich) granted Employer’s Modification Petition and changed
Claimant’s disability status to partial disability, effective December 9, 2022, based on
the whole-person impairment rating of less than 35 percent. Claimant appealed to the
Board, which affirmed the decision and order of the WCJ. This petition for review
followed.2
Discussion
Claimant challenges Dr. Wolk’s legal competency to establish
Claimant’s impairment rating of less than 35 percent and specifically takes issue with
Dr. Wolk’s ability to perform the psychiatric portion of the evaluation because Dr.
Wolk has not been trained in psychiatry or psychology. According to Claimant, Dr.
Wolk was not qualified to perform the IRE pursuant to Chapter 14 of the AMA Guides,
as he did not reach his diagnosis of Claimant’s condition based on the criteria set forth
in Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Test
2
Our standard of review is “limited to determining whether the necessary findings of fact are
supported by substantial evidence, whether errors of law were made, or whether constitutional rights
were violated.” Wright v. Workers’ Compensation Appeal Board (Larpat Muffler, Inc.), 871 A.2d
281, 284 (Pa. Cmwlth. 2005).
4
Revision (“DSM-IV-TR”), as required by Chapter 14 of the AMA Guides. (Claimant’s
Br. at 9, 11-12.) Citing Chapter 14.1 of the AMA Guides, which sets forth the
“Principles of Assessment,” Claimant argues that Employer offered no evidence that
Dr. Wolk has “expertise in the utilization of the [DSM-IV-TR],” “the psychiatric and
psychological evaluation of patients,” or “the diagnosis and treatment of mental and
behavioral disorders.” Id. at 11. He contends that Dr. Wolk’s testimony suggests that
his current practice is limited to treating patients who have a wide variety of different
physical problems, and his board certification is in physical medicine and
rehabilitation. Further, Claimant argues that Dr. Wolk offered no testimony that any
part of his practice touches on the treatment of individuals with psychiatric,
psychological, mental, or behavioral disorders. Accordingly, Claimant contends, Dr.
Wolk was not qualified to perform an IRE pursuant to Chapter 14 of the AMA Guides.
In response, and central to our disposition, Employer emphasizes the fact
that although Claimant’s counsel cross-examined Dr. Wolk as to his qualifications
during voir dire, “counsel did not object on the record to Dr. Wolk’s qualifications nor
did Claimant submit a preservation of objection to Dr. Wolk’s qualifications after the
deposition.” (Employer’s Br. at 8.) Not only did Claimant neglect to object, Employer
maintains, he also failed to present any evidence whatsoever to rebut Dr. Wolk’s
application of the AMA Guides or calculation of his whole-person impairment rating.
Employer maintains, in the alternative, that notwithstanding Claimant’s patent waiver
of this issue, Dr. Wolk’s report and testimony clearly demonstrated a command of the
pertinent provisions of the AMA Guides to support his calculations and that he met the
statutory standard to conduct the IRE, as he is licensed to practice medicine in
Pennsylvania, is Board certified in physical medicine, and is active in clinical practice
5
for at least 20 hours per week.3 Employer also points out that Dr. Wolk, in conducting
his evaluation, considered each of Claimant’s already-accepted work injuries, as
diagnosed by his treating physicians.
As a threshold matter, we address Employer’s waiver argument and the
impact of Claimant’s failure to object to Dr. Wolk’s qualifications or his competency
to testify during his deposition. It is axiomatic that “an issue is waived unless it is
preserved at every stage of the proceeding.” Dennis v. Inglis House (Workers’
Compensation Appeal Board), 303 A.3d 559, 566 (Pa. Cmwlth. 2023). This Court has
held that
[t]he strict doctrine of waiver applies to a workers’
compensation proceeding. The purpose of the waiver
doctrine is to ensure that the WCJ is presented with all
cognizable issues so that the integrity, efficiency, and orderly
administration of the [WC] scheme of redress for work-
related injury is preserved.
Marriott Corp. v. Workers’ Compensation Appeal Board (Knechtel), 837 A.2d 623,
630 (Pa. Cmwlth. 2003) (emphasis added).
Additionally, 34 Pa. Code § 131.66(b) governs the admissibility of oral
depositions and provides as follows:
(b) Objections shall be made and the basis for the
objections stated at the time of the taking of the
depositions. Only objections which are identified in a
separate writing, introduced prior to the close of the
evidentiary record, . . . and stating the specific nature of the
objections and the pages where they appear in the deposition
3
See 77 P.S. § 511.3(1) (setting forth statutory standard to conduct IMEs and requiring that
the physician evaluator be licensed to practice in Pennsylvania, certified by an American Board of
Medical Specialties-approved board or its osteopathic equivalent, and active in clinical practice for at
least 20 hours per week).
6
or the exhibits to which they refer will be preserved for
ruling. Objections not so preserved are waived.
34 Pa. Code § 131.66(b) (emphasis added). Similarly, Pennsylvania Rule of Civil
Procedure 4016(b) provides as follows with respect to objections to witness
competency:
Rule 4016. Taking of Depositions. Objections
(b) Objections to the competency of a witness or to the
competency, relevancy, or materiality of the testimony are
not waived by failure to make them before or during the
taking of the deposition, unless the ground of the objection
is one which was known to the objecting party and which
might have been obviated or removed if made at that
time.
Pa.R.Civ.P. 4016 (emphasis added). Thus, “[i]t is well established that objections to
a witness’ competency to testify at the deposition are waived if they are not raised
before or during the deposition where the ground for the objections are known to
the objecting party.” Wheeler v. Workers’ Compensation Appeal Board (Reading
Hospital and Medical Center), 829 A.2d 730, 735 (Pa. Cmwlth. 2003) (emphasis
added) (relying on Rule 4016 in concluding that the claimant waived his objections to
the competency of employer’s expert testimony where his attorney stated at the
deposition that he had no objection to the expert’s qualifications or to the admission of
his deposition testimony into evidence).
In Marriott, this Court addressed the issue of waiver under circumstances
where the employer maintained that one of the claimant’s treating physicians was not
competent to render an expert opinion regarding the claimant’s psychological condition
because he never reviewed any records from the claimant’s treating psychiatrist, and
his own records did not address the claimant’s depression. See 837 A.2d at 630. While
the employer had made a written objection to the physician’s deposition, stating “an
7
objection to competency based on [the doctor’s] area of expertise and specialty,” the
Marriott Court held that “such objections do not have the effect of preserving the
argument that [the physician] was not competent to testify because he had not reviewed
certain records and created certain records of his own.” Id. at 631. We determined that
the employer failed to preserve this separate and distinct competency issue at all stages
of the proceeding and that it was therefore waived.
Here, as detailed above, counsel for Claimant clearly stated at the
deposition that he had no objection to Dr. Wolk’s qualifications to testify as an
expert or to the admission of his deposition testimony into evidence. Therefore,
because Claimant failed to preserve his objection to Dr. Wolk’s competency to testify
regarding his psychological condition, the issue is waived.
Further, it is well settled that a claimant may introduce his own evidence
during modification proceedings concerning his degree of impairment to challenge the
IRE findings made by the performing physician. Diehl v. Workers’ Compensation
Appeal Board (I.A. Construction), 5 A.3d 230, 245 (Pa. 2010). Here, however,
although Claimant had the opportunity to introduce his own evidence regarding his
degree of impairment to rebut Dr. Wolk’s IRE findings, he offered no evidence
whatsoever to challenge his application of the AMA Guides or method of calculating
his whole-person impairment rating.4
4
Moreover, because the argument section of Claimant’s brief is unsupported by discussion of
pertinent legal authority, his arguments are waived on this basis as well. See Pa.R.A.P. 2119, 2101
(requiring that each issue raised on appeal be supported by discussion and analysis of pertinent legal
authority and providing that failure to cite any authority in support of contention may result in waiver).
8
In light of the foregoing, we must conclude that Claimant has waived his
challenge to Dr. Wolk’s competency to testify. Accordingly, we affirm the order of
the Board.
________________________________
PATRICIA A. McCULLOUGH, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brandon Bonanno, :
Petitioner :
:
v. : No. 1266 C.D. 2024
:
Rosebud Mining Company :
(Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
AND NOW, this 22nd day of July, 2025, the September 10, 2024 order
of the Workers’ Compensation Appeal Board is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge