           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Debra Thompson,                         :
                         Petitioner     :
                                        :
            v.                          :   No. 34 C.D. 2015
                                        :   Submitted: July 2, 2015
Workers’ Compensation Appeal            :
Board (Exelon Corp),                    :
                      Respondent        :


BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                        FILED: January 29, 2016

            Petitioner Debra Thompson (Claimant) petitions for review of an
order of the Workers’ Compensation Appeal Board (Board). The Board affirmed
in part, modified in part, and reversed in part the order of a Workers’
Compensation Judge (WCJ).         The WCJ’s order granted, in part, Exelon
Corporation’s (Employer) modification petition, denied Employer’s suspension
petition, denied Claimant’s review petition, and expanded the description of
Claimant’s work injury. As to the modification and suspension petitions, the
Board modified the WCJ’s order, thereby changing the effective date of the
modification of Claimant’s workers’ compensation benefits. As to the review
petition, the Board affirmed the WCJ’s order. The Board reversed the WCJ’s
expansion of the description of Claimant’s work injury.       We now vacate the
Board’s order and remand the matter to the Board for consideration of the merits.
             Claimant sustained a work-related injury on October 16, 1998, and
Employer issued a notice of compensation payable. (Reproduced Record (R.R.) at
1a.)   Claimant received workers’ compensation benefits on and off from
October 20, 1998, through September 23, 2003. (Id. at 54a.) Claimant was laid off
on September 23, 2003, and received severance and unemployment compensation
benefits until September 15, 2004. (Id. at 55a.) Claimant’s total disability benefits
were reinstated on September 15, 2004. (Id.) On September 12, 2005, Employer
requested a designation of a physician to perform an impairment rating evaluation
(IRE) of Claimant. (Id. at 7a.) 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. (Id. at 9a, 11a-12a.) Dr. Bonner opined that Claimant’s
impairment rating was 23%. (Id. at 13a.) As a result of the IRE, Claimant
received a notice of change of workers’ compensation disability status, which
indicated that Claimant’s disability status was changed from total to partial,
effective August 30, 2005. (Id. at 14a-15a.)
             Employer filed a petition to modify and suspend benefits on
December 29, 2010, which alleged that Claimant would reach 500 weeks of partial
disability benefits as of October 8, 2012.     (Id. at 25a-27a.) On April 5, 2011,
Claimant filed a review petition seeking review of the 2005 IRE determination,
because “she has not reached maximum medical improvement.” (Id. at 29a-30a.)
A WCJ consolidated the various petitions and issued a decision. As noted above,
the WCJ granted Employer’s modification petition in part, denied Employer’s
suspension petition, and denied Claimant’s review petition in part. In so doing, the
WCJ determined that Employer had “established its right to a modification of . . .
Claimant’s . . . [b]enefits on the basis of an [IRE].” (WCJ Decision at 25-26.) The


                                         2
WCJ concluded that because Claimant had not received total disability benefits
from September 23, 2003, through September 15, 2004, Employer had properly
requested the IRE of Claimant within 60 days of the expiration of Claimant’s
104-week total disability period. (Id. at 23-24.) The WCJ further found that
Claimant had reached maximum medical improvement by October 13, 2005.
(Id. at 15.)    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.
               The Board issued an opinion and order on December 17, 2014. In so
doing, the Board did not address whether the WCJ erred in failing to include the
period during which Claimant received only severance and unemployment
compensation benefits in its calculation of the 104-week period of total disability
or whether the WCJ erred in finding that Claimant had reached maximum medical
improvement. 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 of change in disability status, nor
could she appeal within the 500-week period of partial disability without a
qualifying IRE determination. Claimant now petitions this Court for review.
               On appeal,1 Claimant argues that the notice of change of disability
status 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, that


       1
         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.



                                               3
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 that
substantial evidence did not support the WCJ’s finding that Claimant had reached
maximum medical improvement on the day of her IRE.
              At the outset, we note that a claimant generally has two opportunities
to appeal a change in her disability status. See Section 306(a.2) of the Workers’
Compensation Act (Act).2          A claimant is first afforded an immediate appeal
pursuant to Section 306(a.2)(2) of the Act, which “provides that no reduction in the
employee’s disability status shall be made until 60 days notice of modification is
given.”    Johnson v. Workers’ Comp. Appeal Bd. (Sealy Components Grp.),
982 A.2d 1253, 1257 (Pa. Cmwlth. 2009), appeal denied, 996 A.2d 493 (Pa. 2010).
This allows a claimant to “appeal the reduction of his or her disability status before
the reduction bec[omes] effective.” Id. After the 60-day notice period allowing
for immediate appeal expires, the Act provides a claimant the opportunity to
challenge the change of her disability status at any point during the 500-week
period of partial disability. Id. at 1258. To challenge a change of disability status




       2
          Act of June 2, 1915, P.L. 736, added by the Act of June 24, 1996, P.L. 350, 77 P.S.
§ 511.2. This Court, in Protz v. Workers’ Compensation Appeal Board (Derry Area School
District), 124 A.3d 406 (Pa. Cmwlth. 2015), recently held that Section 306(a.2) of the Act
constitutes “an unconstitutional delegation of legislative authority insofar as it proactively
approved versions of the [American Medical Association (AMA)] Guides beyond the Fourth
Edition without review.” Protz, 124 A.3d at 416. In Protz, we vacated the Board’s decision with
respect to the employer’s modification petition and remanded the matter for application of the
Fourth Edition of the AMA Guides.



                                              4
during this period, however, a claimant must provide an IRE determination
indicating that the claimant has an impairment rating in excess of 50%. Id.
               We first address Claimant’s argument concerning due process.
Claimant contends that she did not appeal the 2005 notice of change of disability
status due to the language of the notice. The notice provided: “You may appeal an
adjustment in your workers’ compensation status to a [WCJ] by filing a Petition for
Review with the Bureau of Workers’ Compensation, . . . which must include a
qualified impairment rating physician’s determination of impairment which is
equal to or greater than 50%.”3 (R.R. at 15a (emphasis added).) Claimant asserts
that based on the language of the notice, she believed that she was precluded from
raising any issues on appeal because she did not have an IRE providing that her
impairment rating was greater than 50%. She argues that the prohibitory language
of the notice deprived her of due process, and, thus, the Board erred in concluding
that she was time-barred from challenging the change of her disability status on the
basis that she had not reached maximum medical improvement and that the IRE
was untimely.
               While incapable of exact definition, the essential elements of
procedural due process are “notice and opportunity to be heard and to defend in an
orderly proceeding adapted to the nature of the case before a tribunal having
jurisdiction of the cause.” Fiore v. Bd. of Fin. & Revenue, 633 A.2d 1111, 1114
(Pa. 1993) (quotations omitted). Whether due process has been afforded must be



       3
         We note that the notice of change of disability status form has since been revised and no
longer includes this language. See BUREAU OF WORKERS’ COMP., PA. DEP’T OF LABOR & INDUS.,
LIBC-764 (2013).



                                                5
examined in relation to the particular circumstances of each case. Dunn v. Dep’t of
Transp., Bureau of Driver Licensing, 819 A.2d 189, 192 (Pa. Cmwlth. 2003).
“Notice is the most basic requirement of due process . . . . Notice should be
reasonably calculated to inform interested parties of the pending action. . . . The
form of the notice required depends on what is reasonable, considering the interests
at stake and the burdens of providing notice.”               Pa. Coal Mining Ass’n v. Ins.
Dep’t, 370 A.2d 685, 692-93 (Pa. 1977). “Failure to provide adequate notice is a
jurisdictional defect that invalidates administrative action until the defect is cured.”
Clark v. Dep’t of Pub. Welfare, 427 A.2d 712, 713 (Pa. Cmwlth. 1981) (quotations
omitted).
               Claimant appears to argue that because the language of the notice of
the change of disability was inadequate so as to deprive her of her due process
rights, the Board should have considered the merits of her appeal.4 We agree. It is
undisputed that Claimant did not immediately appeal the change of her disability
status within the time period provided in Section 306(a.2)(2) of the Act. See
Johnson, 982 A.2d at 1257-58. In Johnson, this Court held that a claimant’s
appeal of an IRE determination was prohibited by Section 306(a.2) of the Act,


       4
         Employer counters that Claimant has waived this argument by failing to raise it before
the Board. It is well-settled that issues must be raised at the earliest possible opportunity. Rox
Coal Co. v. Workers’ Comp. Appeal Bd. (Snizaski), 807 A.2d 906, 912-13 (Pa. 2002). This
Court will not review any issue that has not been raised before the agency unless the issue “could
not by the exercise of due diligence have [been] raised before the [agency].” Pa. R.A.P. 1551(a).
Claimant could not have raised this issue before the Board, because at that stage in the litigation
there was no adverse ruling that Claimant was time-barred from appealing the notice of change
of disability status. Claimant did not need to raise the issue prior to the Board’s determination
that Claimant was time-barred from appealing. We, therefore, reject Employer’s argument that
Claimant has waived this argument.



                                                6
because the claimant did not take advantage of her immediate appeal rights under
Section 306(a.2)(2) of the Act, nor did she present and IRE determination
indicating that she had an impairment rating in excess of 50% so as to permit an
appeal during the 500-week period of partial disability. The claimant in Johnson
had argued that due process entitled her to a hearing before her disability status
was changed from total to partial.          We disagreed and found no due process
violation, concluding that the claimant waived her immediate appeal rights by
failing to appeal during the 60-day period after receiving notice of the change of
her disability status. We noted that “[a] claimant cannot sit on her appeal rights
and then claim she was denied due process.” Id. at 1258. The instant matter is
distinguishable from Johnson. Here, Claimant did not sit on her appeal rights, but,
rather, was informed that she could not appeal the change of her disability status
without an IRE determination indicating that her impairment rating was in excess
of 50%. The language of the change of disability status contradicts the language of
Section 306(a.2)(2) of the Act, in which a claimant is provided the ability to appeal
a change of disability status, without a qualifying IRE determination, within
60 days of the claimant’s receipt of notice. By informing Claimant that she was
not able to appeal the change of her disability status without a qualifying IRE
determination, the notice of Claimant’s change of disability status deprived her of
her due process right to adequate notice.             Because the notice constituted a
deprivation of due process, Claimant is entitled to be heard on the merits of her
appeal.5


       5
          Employer argues that the inadequate notice was harmless error, because Claimant had a
full hearing before the WCJ on the merits of her appeal. Although the WCJ did consider the
(Footnote continued on next page…)

                                              7
               Accordingly, we vacate the Board’s order and remand the matter to
the Board to consider the merits of Claimant’s appeal. 6




                                     P. KEVIN BROBSON, Judge




(continued…)

merits of Claimant’s appeal, Claimant is also entitled to an opportunity to be heard by the Board.
See Section 423 of the Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 853 (“Any
party in interest may, within twenty days after notice of a [W]orkers’ [C]ompensation [J]udge’s
adjudication shall have been served upon him, take an appeal to the [B]oard.”) We, therefore,
reject Employer’s argument.
       6
       Because we remand this matter to the Board, we need not address Claimant’s remaining
arguments as to the merits of this matter.



                                                8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Debra Thompson,                         :
                        Petitioner      :
                                        :
           v.                           :   No. 34 C.D. 2015
                                        :
Workers’ Compensation Appeal            :
Board (Exelon Corp),                    :
                      Respondent        :


                                     ORDER


           AND NOW, this 29th day of January, 2016, the order of the Workers’
Compensation Appeal Board (Board) is hereby VACATED, and the matter is
REMANDED to the Board to consider the merits of Petitioner Debra Thompson’s
appeal.
           Jurisdiction relinquished.




                              P. KEVIN BROBSON, Judge
