Submitted: January 13, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E.
COVEY, Judge HONORABLE JOSEPH M. COSGROVE, Judge.
KEVIN BROBSON, JUDGE.
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.
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
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.
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 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). 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
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.
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
December 17, 2014, and remanded the matter to the Board to
consider the merits of Claimant's appeal.
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
petition for review,  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 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).
Protz I, this Court declared Section 306(a.2) of the
Act to be "an unconstitutional delegation of legislative
authority insofar as it proactively 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. In so doing, the
Supreme Court essentially struck the entire IRE process from
the Act. Thus, we are compelled to reverse the
Board's affirmance of the WCJ's modification of
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.
the Board's opinion and order is reversed to the extent
that it modified Claimant's workers' ...