            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Debra Thompson,                          :
                         Petitioner      :
                                         :
              v.                         :    No. 1227 C.D. 2016
                                         :    Submitted: January 13, 2017
Workers’ Compensation Appeal             :
Board (Exelon Corporation),              :
                        Respondent       :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE JOSEPH M. COSGROVE, Judge


OPINION BY JUDGE BROBSON                             FILED: August 16, 2017


              Petitioner Debra Thompson (Claimant) petitions for review of an
order of the Workers’ Compensation Appeal Board (Board), dated July 8, 2016.
The Board affirmed, in part, and reversed, in part, the decision and order of a
Workers’ Compensation Judge (WCJ). The Board affirmed the WCJ’s denial of
Claimant’s petition to review compensation benefits and modified Claimant’s
benefits as of August 30, 2005. The Board reversed the WCJ’s expansion of the
description of Claimant’s work injury.       For the reasons that follow, we now
reverse, in part.
              The parties stipulated to the relevant facts in the instant case.
(Reproduced Record (R.R.) at 56a.) Thus, the factual background in this matter is
not in dispute. Claimant sustained a work-related injury on October 16, 1998, and
Exelon Corporation (Employer) issued a notice of compensation payable.
Claimant received total disability workers’ compensation benefits from
October 20, 1998, through November 2, 1999. From November 2, 1999, until
May 8, 2000, Claimant received partial disability benefits. Claimant’s workers’
compensation benefits were suspended from May 9, 2000, until October 7, 2001.
On October 8, 2001, Claimant began working in a light duty position and received
partial disability benefits.
              Employer laid off Claimant from her light duty position on
September 23, 2003.            Claimant   received   severance   and   unemployment
compensation benefits until September 15, 2004, at which time Claimant’s total
disability benefits were reinstated. On September 12, 2005, Employer requested a
designation of a physician to perform an impairment rating evaluation (IRE) of
Claimant.     On September 19, 2005, Claimant received notice of an IRE
appointment with James Bonner, M.D., and Dr. Bonner performed the IRE on
October 13, 2005.       Dr. Bonner concluded that Claimant’s impairment rating
was 23%. As a result of the IRE, Claimant received a notice of change of workers’
compensation disability status (Notice), which indicated that Claimant’s disability
status was changed from total to partial, effective August 30, 2005.
              Employer filed a petition to modify and suspend benefits on
December 29, 2010, alleging that Claimant would reach 500 weeks of partial
disability benefits as of October 8, 2012. On April 5, 2011, Claimant filed a
review petition, seeking review of the 2005 IRE determination, because she had
not reached maximum medical improvement (MMI). A WCJ consolidated the
various petitions and issued a decision. The WCJ granted, in part, Employer’s
modification petition, denied Employer’s suspension petition, and denied, in part,
Claimant’s review petition.        The WCJ concluded that the results of the IRE
established that Employer was entitled to modify Claimant’s benefits from total
disability to partial disability. The WCJ concluded that because Claimant had not


                                            2
received    total   disability   benefits    from     September       23,   2003,     through
September 15, 2004, Employer had properly requested the IRE within 60 days of
the expiration of Claimant’s 104-week total disability period pursuant to what was
then Section 306(a.2) of the Workers’ Compensation Act (the Act).1 The WCJ
also determined that Claimant had reached MMI by October 13, 2005. The WCJ,
however, concluded that the effective date for the modification of benefits should
be January 4, 2006, rather than August 30, 2005. Both Claimant and Employer
appealed to the Board.



      1
         Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.2, added by the Act of
June 24, 1996, P.L. 350, held unconstitutional by Protz v. Workers’ Comp. Appeal Bd. (Derry
Area Sch. Dist.), 161 A.3d 827 (Pa. 2017) (Protz II). Former Section 306(a.2) of the Act
provided, in pertinent part:
      (1) When an employe has received total disability compensation pursuant to
      clause (a) for a period of one hundred four weeks, unless otherwise agreed to, the
      employe shall be required to submit to a medical examination which shall be
      requested by the insurer within sixty days upon the expiration of the one hundred
      four weeks to determine the degree of impairment due to the compensable injury,
      if any. The degree of impairment shall be determined based upon an evaluation
      by a physician who is licensed in this Commonwealth . . . .
      (2) If such determination results in an impairment rating that meets a threshold
      impairment rating that is equal to or greater than fifty per centum impairment
      under the most recent edition of the American Medical Association “Guides to the
      Evaluation of Permanent Impairment,” the employe shall be presumed to be
      totally disabled and shall continue to receive total disability compensation
      benefits under clause (a). If such determination results in an impairment rating
      less than fifty per centum impairment under the most recent edition of the
      American Medical Association “Guides to the Evaluation of Permanent
      Impairment,” the employe shall then receive partial disability benefits under
      clause (b): Provided, however, [t]hat no reduction shall be made until sixty days’
      notice of modification is given.
(Emphasis added).



                                              3
            The Board issued an opinion and order on December 17, 2014. In its
opinion, the Board did not address whether the WCJ erred by not including in the
calculation of the 104-week period of total disability the time Claimant received
only severance and unemployment compensation benefits or whether the WCJ
erred in finding that Claimant had reached MMI. Rather, the Board concluded that
Claimant was time-barred from challenging the change of her disability status,
because she did not appeal within the 60-day period after she received the Notice,
nor could she appeal within the 500-week period of partial disability without a
qualifying IRE determination.
            Claimant petitioned this Court for review, arguing: (1) the Notice
deprived her of due process, and, therefore, the Board erred in concluding that she
was time-barred from challenging the change of her disability status; (2) the WCJ
erred in finding that the period during which Claimant received severance benefits
should not be counted in determining whether the IRE occurred within 60 days
after Claimant had      received total disability benefits for 104          weeks;
and (3) substantial evidence did not support the WCJ’s finding that Claimant had
reached MMI on the day of her IRE. This Court held that the language in the
Notice was inadequate so as to deprive Claimant of her due process rights and that
the Board should have considered the merits of her appeal. Thompson v. Workers’
Comp. Appeal Bd. (Exelon Corp.), (Pa. Cmwlth., No. 34 C.D. 2015, filed
Jan. 29, 2016) (Thompson I). Accordingly, we vacated the Board’s order, dated




                                        4
December 17, 2014, and remanded the matter to the Board to consider the merits
of Claimant’s appeal.2
               On remand, by opinion and order dated July 8, 2016, the Board
concluded that the WCJ did not err in determining that Employer was entitled to an
automatic modification of Claimant’s benefits under then Section 306(a.2) of the
Act and that Claimant’s benefits should be modified from total to partial disability
effective August 30, 2005. The Board reasoned that Claimant did not receive
workers’      compensation       benefits     between       September       24,    2003,     and
September 15, 2004, because she was receiving severance benefits in lieu of
workers’ compensation benefits, and, thus, Employer properly excluded that time
period for purposes of calculating the 104-week time period required under
Section 306(a.2)(1) of the Act. The Board further concluded that Dr. Bonner’s
opinion was sufficient to support his finding that Claimant suffered from
a 23% whole body impairment, and, thus, Claimant’s benefits should be modified
from total to partial disability benefits as of August 30, 2005, when Claimant
reached 104 weeks of total disability.
               In her petition for review,3 Claimant now raises the following
issues: (1) whether the WCJ erred in concluding that the time period that Claimant
received severance benefits in lieu of workers’ compensation benefits should be

       2
         Because we remanded the matter to the Board for further consideration, we did not
address the remaining issues that Claimant raised in her petition for review of the Board’s order,
dated December 17, 2014.
       3
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.



                                                5
excluded from the calculation of the 104-week time period pursuant to what was
then Section 306(a.2)(1) of the Act; (2) whether the WCJ erred in relying on
Dr. Bonner’s opinion that Claimant had reached MMI on October 13, 2005;
and (3) whether the WCJ erred in concluding that Claimant’s benefits were
modified based on an IRE performed using the Fifth Edition of the American
Medical Association’s (AMA) Guides, the use of which, at the time of the filing of
the petition for review, had been declared unconstitutional by this Court in Protz v.
Workers’ Compensation Appeal Board (Derry Area School District), 124 A.3d
406, 416 (Pa. Cmwlth. 2015) (Protz I), aff’d, in part, rev’d, in part, 161 A.3d 827
(Pa. 2017) (Protz II).4
               In Protz I, this Court declared Section 306(a.2) of the Act to be “an
unconstitutional delegation of legislative authority insofar as it proactively


       4
          Employer does not argue that the use of the Fifth Edition of the AMA Guides has not
been declared unconstitutional, nor does Employer contest that Dr. Bonner actually used the
Fifth Edition of the AMA Guides in conducting the IRE. Instead, Employer argues that
Claimant failed to timely raise the issue of Dr. Bonner’s use of the Fifth Edition of the AMA
Guides and that Claimant should be barred from raising the constitutionality of
Section 306(a.2)(1) of the Act because Claimant failed to notify the Attorney General of a
constitutional challenge. Because this matter began before Protz I and Protz II were decided and
this appeal implicates the validity of Section 306(a.2)(1) of the Act, Claimant raised this issue at
the first opportunity to do so. See Pa. R.A.P. 1551(a). Thus, Claimant is not precluded from
raising the issue of the improper use of the Fifth Edition of the AMA Guides on appeal. See
Mazuruk v. Workers’ Comp. Appeal Bd. (Gillin & Sons Contracting, Inc.) (Pa. Cmwlth., No.
1216 C.D. 2015, filed Oct. 14, 2016) (applying Protz I even though case was decided after
Board’s decision and claimant’s petition for review). Furthermore, Claimant was not required to
notify the Attorney General of a constitutional challenge, because she is arguing that this Court
should remand for the WCJ to apply our precedent in Protz I, which concluded that
Section 306(a.2)(1) of the Act is unconstitutional as to the Fifth Edition of the AMA Guides.
Claimant, herself, is not litigating the constitutionality of Section 306(a.2)(1) of the Act, which
has just recently been decided by our Supreme Court.



                                                 6
approved versions of the AMA Guides beyond the Fourth Edition without review.”
Protz I, 124 A.3d at 416. “We vacate[d] the Board’s decision with respect to [the
e]mployer’s modification petition and remanded the matter to the Board with
instruction to remand to the WCJ to apply the Fourth Edition of the AMA Guides
in adjudicating the same.”          Id. Our Supreme Court, in Protz II, agreed that
Section 306(a.2) constituted an unconstitutional delegation of legislative authority,
but it disagreed with the remedy provided by this Court. The Supreme Court
concluded that as a result of the unconstitutional delegation, the entirety of
Section 306(a.2) of the Act must be stricken as unconstitutional.5 In so doing, the
Supreme Court essentially struck the entire IRE process from the Act.6 Thus, we
are compelled to reverse the Board’s affirmance of the WCJ’s modification of


       5
          Under former Section 306(a.2)(1) of the Act, an employer could request that a claimant
who has received total disability benefits for a total of 104 weeks undergo an IRE to evaluate the
degree of permanent impairment caused by a work injury and any change of a claimant’s
disability status from total disability to partial disability. IA Constr. Corp. v. Workers’ Comp.
Appeal Bd. (Rhodes), 139 A.3d 154, 155-56 (Pa. 2016). If an employer requested the IRE
within 60 days after the claimant has received 104 weeks of total disability benefits, an
impairment rating of less than 50% operated to automatically reduce the claimant’s status to
partial disability. Gardner v. Workers’ Comp. Appeal Bd. (Genesis Health Ventures), 888 A.2d
758, 765-68 (Pa. 2005). Under former Section 306(a.2)(6) of the Act, an employer could request
an IRE beyond that 60-day period, but any reduction of claimant’s status to partial disability
based on the results of such an IRE was not automatic and had to be sought through a
modification petition. Gardner, 888 A.2d at 766-68. The requirements for a valid IRE set forth
in former Section 306(a.2)(1) of the Act, other than the 60-day limitation, also applied to IREs
requested and performed under former Section 306(a.2)(6). Logue v. Workers’ Comp. Appeal
Bd. (Cmwlth. of Pa.), 119 A.3d 1116, 1119 (Pa. Cmwlth.), appeal denied, 130 A.3d 1293
(Pa. 2015). An IRE requested before the claimant has received 104 weeks of total disability
benefits was invalid and could not support a modification of benefits to partial disability.
Dowhower v. Workers’ Comp. Appeal Bd. (Capco Contracting), 919 A.2d 913, 917-18
(Pa. 2007).
       6
           Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.



                                                7
Claimant’s benefits, because under the Supreme Court’s recent decision in Protz II,
Section 306(a.2) is stricken and no other provision of the Act allows for
modification of benefits based on an IRE.
            Accordingly, the Board’s opinion and order is reversed to the extent
that it modified Claimant’s workers’ compensation benefits from full to partial.




                                P. KEVIN BROBSON, Judge




                                         8
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Debra Thompson,                        :
                        Petitioner     :
                                       :
            v.                         :   No. 1227 C.D. 2016
                                       :
Workers’ Compensation Appeal           :
Board (Exelon Corporation),            :
                        Respondent     :



                                     ORDER


            AND NOW, this 16th day of August, 2017, the order of the Workers’
Compensation Appeal Board (Board), dated July 8, 2016, is REVERSED to the
extent that it modified Petitioner’s workers’ compensation benefits from total to
partial.




                              P. KEVIN BROBSON, Judge
