Thompson v. Workers' Compensation Appeal Board (Exelon Corp.)
168 A.3d 408
Pa. Commw. Ct.2017Background
- Claimant Debra Thompson sustained a work injury on October 16, 1998; Employer (Exelon) paid workers’ compensation benefits with periods of total and partial disability and a suspension while Claimant received severance/unemployment.
- Employer requested an Impairment Rating Evaluation (IRE); Dr. James Bonner performed the IRE on October 13, 2005 and assigned a 23% whole-body impairment.
- Employer issued a Notice changing Claimant’s status from total to partial effective August 30, 2005 based on the IRE; Claimant later filed a review petition challenging the IRE and MMI date.
- A WCJ found the IRE valid, concluded Claimant had reached maximum medical improvement (MMI) on October 13, 2005, and set an effective modification date (later adjusted); the Board affirmed that modification and excluded the severance/unemployment period from the 104-week total-disability calculation.
- On prior appeal this Court found the Notice defective for due-process purposes and remanded; on remand the Board again upheld modification to partial disability effective August 30, 2005.
- The Court reversed the Board only to the extent it modified Claimant’s benefits, reasoning that the Pennsylvania Supreme Court’s decision in Protz II struck former Section 306(a.2) (the statutory IRE mechanism) as unconstitutional, eliminating any statutory basis for automatic modification based on an IRE.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the severance/unemployment period must be included in the 104-week total-disability calculation | Thompson: Severance/unemployment time should count toward the 104 weeks, making the Employer’s IRE untimely | Exelon: Severance/unemployment substituted for WC benefits and may be excluded when calculating the 104 weeks | Not decided on merits — rendered moot by Protz II invalidating §306(a.2) and thus the IRE-based modification |
| Whether Claimant had reached MMI on date of IRE (Oct. 13, 2005) | Thompson: Substantial evidence does not support that she reached MMI on that date | Exelon: Dr. Bonner’s IRE and opinion establish MMI on that date | Not decided on merits — rendered moot by Protz II eliminating IRE-based modification |
| Whether use of the AMA Guides (Fifth Edition) and former §306(a.2) can support modification | Thompson: The Fifth Edition and §306(a.2) are constitutionally infirm and cannot justify modification | Exelon: IRE and Fifth Edition were applied and Claimant raised constitutional challenge late; Employer did not contest underlying use | Held: §306(a.2) (the IRE scheme) was effectively stricken by Protz II; the Court reversed the Board’s modification to partial disability because no statutory basis remains for IRE-based modification |
| Whether the Notice deprived Claimant of due process and barred challenge | Thompson: Notice language was inadequate and deprived her due process, so she should not be time-barred | Exelon: Claimant waited and was time-barred from challenging the Notice | Prior panel (Thompson I): Found Notice inadequate and remanded; on remand the Board reconsidered merits but final reversal of modification occurred on separate Protz II grounds |
Key Cases Cited
- Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827 (Pa. 2017) (Pennsylvania Supreme Court struck §306(a.2) IRE scheme as unconstitutional)
- Protz v. Workers’ Comp. Appeal Bd., 124 A.3d 406 (Pa. Cmwlth. 2015) (panel opinion holding §306(a.2) unconstitutional insofar as it approved AMA Guides beyond the Fourth Edition; remand remedy suggested)
- Gardner v. Workers’ Comp. Appeal Bd., 888 A.2d 758 (Pa. 2005) (explains automatic reduction to partial disability based on qualifying IRE results under former §306(a.2))
- IA Constr. Corp. v. Workers’ Comp. Appeal Bd. (Rhodes), 139 A.3d 154 (Pa. 2016) (discusses operation of IRE and §306(a.2) procedures)
- Dowhower v. Workers’ Comp. Appeal Bd., 919 A.2d 913 (Pa. Cmwlth. 2007) (an IRE performed before a claimant has received 104 weeks of total disability is invalid and cannot support modification)