K. Potts v. WCAB (Elwyn, Inc.)
615 C.D. 2016
| Pa. Commw. Ct. | Jan 19, 2017Background
- Claimant (Potts) was injured at work in April 2002 and received total disability benefits; Employer obtained an IRE on August 10, 2004 finding 20% whole-person impairment under the AMA Guides (Fifth Edition).
- Employer issued a Notice of Change in Disability Status on September 8, 2004 changing Claimant from total to partial disability effective August 10, 2004; Claimant did not appeal that IRE determination.
- Claimant returned to modified duty July 26, 2004; that job was eliminated March 1, 2005, and the parties executed a Supplemental Agreement reciting that Claimant’s disability “recurred,” after which Claimant began receiving partial disability payments effective March 1, 2005.
- Claimant’s injury description was expanded in 2007 to include a left rotator cuff tear; no new IRE was obtained after that expansion.
- Employer ceased paying Claimant’s partial disability benefits around March 23, 2014 (500 weeks after partial disability payments began); Claimant filed a Penalty Petition alleging Employer improperly stopped payments without an IRE decision modifying his status.
- WCJ denied the Penalty Petition; the Board affirmed; this Court affirmed, holding Employer did not violate the Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which document controls Claimant’s disability status: Sept. 8, 2004 Notice (IRE) or March 11, 2005 Supplemental Agreement? | Potts: Supplemental Agreement (recurrence) controls and altered status. | Elwyn: Sept. 8, 2004 Notice (IRE-based) controls because Claimant did not appeal the IRE change. | Court: Sept. 8, 2004 Notice controls; Supplemental Agreement addressed earning power, not the IRE impairment determination. |
| Did Employer need a new IRE after the 2007 expansion of the injury description? | Potts: Expansion required Employer to obtain a new IRE before ceasing benefits. | Elwyn: The 2004 IRE became fixed after 60 days; burden was on Claimant to prove >=50% impairment from expanded injury. | Court: No new IRE was required; 2004 IRE was final and binding absent Claimant proving otherwise. |
| Does Protz (invalidating use of AMA Guides beyond 4th ed.) require reversal/remand here? | Potts: Protz makes the 2004 IRE invalid; Employer’s reliance on it was unlawful. | Elwyn: Protz was decided after Employer stopped payments; Claimant did not timely challenge the IRE so Protz is not properly before the Court. | Court: Protz does not alter the outcome because Claimant never filed a Review Petition contesting the IRE; the penalty claim fails. |
| Was Employer liable for penalties for unilaterally stopping benefits in 2014? | Potts: Employer improperly stopped payments without a valid IRE decision modifying status. | Elwyn: Payments stopped because partial-disability 500-week statutory period expired; Employer acted lawfully. | Court: No penalty; Employer was entitled to stop payments after the 500-week partial-disability limit. |
Key Cases Cited
- Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 124 A.3d 406 (Pa. Cmwlth. 2015) (held Section 306(a.2) unconstitutional insofar as it approved AMA Guides beyond the Fourth Edition)
- Diehl v. Workers’ Comp. Appeal Bd. (I.A. Constr.), 5 A.3d 230 (Pa. 2010) (distinguishes impairment from disability; impairment is physical; disability is loss of earning power)
- Wingrove v. Workers’ Comp. Appeal Bd. (Allegheny Energy), 83 A.3d 270 (Pa. Cmwlth. 2014) (an IRE becomes fixed after 60 days and burden shifts to claimant to prove >=50% impairment after an expanded injury)
- Cozzone v. Workers’ Comp. Appeal Bd. (PA Mun./E. Goshen Twp.), 41 A.3d 105 (Pa. 2012) (partial disability compensation is payable for no more than 500 weeks)