*1
WORKERS’ COMPENSATION (GENESIS VENTURES), Appellee HEALTH
Appeal of Genesis Health Ventures Stores, Inc.,
Wal-Mart v. (Leroy Rider), Compensation Appeal Board Leroy
Appeal of Rider. Supreme Pennsylvania. Court of
Argued Dec. 2004.
Decided Dec. *2 Leroy D. for Ralph Rider. Oyler, for Kenger, Lengler, Harrisburg, Amber M. Richard C. Appeal Board. Compensation Stores, Anthony Pittsburgh, T. Wal-Mart Colangelo, Inc. NIGRO, NEWMAN, CAPPY, C.J., CASTILLE,
Before: SAYLOR, BAER, EAKIN and JJ.
OPINION Justice Chief CAPPY. of cases, re- purposes appeal,
These
consolidated for
this
dealing
timing
us
resolve issues
when
quire
injured
that an
submit
required
employee
insurer
(“IRE”)
rating
purpose
to an
for the
impairment
evaluation
obtaining an automatic reduction
benefits under
Work-
(“Act”).1
Act,
77
511.2
For
Compensation
ers’
Generally
employee
speaking, when
has received total
1.
weeks,
to,
employee
compensation
otherwise
for 104
unless
purpose
to a
will be
to submit
medical examination for the
determining
degree
impairment
compensable injury,
if
due to
impairment rating
any.
in an
thаt is
If such a determination results
fifty
greater
percent impairment,
employee will be
equal to or
than
totally
presumed to
and will continue to receive total
However,
disabled
if
re
compensation
such determination
rating
fifty percent,
impairment
in an
than
sults
of less
partial disability
proper
after
notice. 21A
will then receive
benefits
2d,
(2004)(citing
Employment
Labor Relations
17:11
&
Pa.
Summ
Jur.
511-511.2).
procedure
part
§§
“was
The IRE
Assembly's
rising
reform effort intended to reduce
Workers’
efficiency
Compensa-'
Compensation
restore
costs and
Workers’
system.”
Appeal
(Joseph
Hilyer v.
Compensation
T.
tion
Board
reasons,
following
affirm the
Commonwealth Court’s deci
sion
v. Workers’
Board
Compensation Appeal
Gardner
(Genesis
Ventures),
Health
A.2d
(Pa.Commw.Ct.2003)(“Gardner’’) and reverse the Common
Stores,
wealth Court’s decision Wаl-Mart
Inc. v. Workers’
(Rider),
Compensation Appeal Board
The facts of stipulated by parties, were Gardner thus, (“Gardner”) are not in dispute. Barbara sus- Gardner tained a compensable injury work 1996. As of October 2, 1998, October she had temporary received total 13, 2001, benefits for a total of 104 weeks. On June Gardner’s (“Genesis”), employer, Genesis Health Ventures requested that she submit objected to an IRE. Gardner to this request, claiming that the request was impermissible under 77 P.S. 511.2(1), as it not made sixty days was within of her receipt of 104 Genesis, weeks of total temporary disability benefits. subsequent objection, to Gardner’s a Petition Physical filed 10, 2001, Examination on August requesting that a Workers’ (“WCJ”) Compensatiоn Judge order Gardner to submit to an WCJ, IRE. on November denied the Petition 511.2(1),2 based on which the require WCJ found to the insurer to request the IRE the sixty-day period benefits, Gardner’s of 104 receipt temporary weeks of had which commenced October appealed Genesis decision to WCJ’s the Workers’ Compensation Appeal Board (“WCAB”). August reversed, On the WCAB based on its conclusion that ambiguous was and that 34 Pa. *4 123.102(f) Code properly interpreted provision that not as a limitations, statute of but rather as a “window in which insurer must act the ‘adjustment of benefit ‘to status’
Pastrill, 232, (Pa.Commw.Ct.2004) (citation Logging), Jr. 847 A.2d omitted). acknowledge parties 2. We provision cite this as “Section 306(a.2)(l)”, citation, 1915, 2, in reference to its session law June P.L. 736, 338, Ill, 306(a.2). No. art. purposes opinion, For of this however, statutory all citations will be to their Purdon's citation. receipt еxpiration relate back to ” at Op. p. benefits.’ See WCAB of total to the Gardner, turn, decision Com appealed WCAB’s opinion, In a Commonwealth published Court. monwealth order, holding that the en banc reversed WCAB Court ambiguity. free from is clear and of Section language that an insurer must such, held Court As Commonwealth medical examination submit to a the claimant of total of 104 weeks receipt of the claimant’s sixty days modifying from forever precluded benefits or be set forth in 77 P.S. procedure on the claimant’s benefits based specifically noted Gard Court 511.2. Commonwealth time, ner, however, may, any at employer that an medical examination under claimant submit to a a benefits based on a a claimant’s modify § 651 in order to Gardner, 814 earning power. in medical condition change which we sought appеal, allowance A.2d at n. 9. Genesis granted. matter, procedural the facts and to the Rider
Turning now Stores, Appellee Wal-Mart of that case are as follows: history (“Rider”) (“Wal-Mart”) as a Leroy Rider employed Inc. had 1998, 31, a July Rider sustained since 1993. On truck driver employment. of his scope in the course and injury neck while through treatment his therapy and chiropractic He underwent but short- promise This course showed was family physician. a cervical disc. lived, ruptured diagnosed as he was 21, 1998. on October working for Wal-Mart stopped Rider 1998, total alleging a Petition November He filed Claim corrective and underwent from October WCJ, on December 1998. A on November surgery and awarded injuries Rider’s be work-related found 21, 1998. from October disability benefits temporary and also this decision WCAB appealed Wal-Mart 12, 2000, the January On suрersedeas order. requested as to request only supersedeas Wal-Mart’s granted WCAB unreasonable contest and attorneys’ fees for payment This order was disfiguring scarring. claim for to Rider’s respects.” denied in all other unequivocal “Supersedeas *5 2000) (WCAB 12, The January Order of WCAB remanded the and, 20, 2001, on again case November the WCJ WCJ Rider, total awarding found him benefits from disability 21, 1998. Wal-Mart did not contest this decision. October 10, 2001, On December 163 weeks after the date when began, benefits but of the sixty days within final adjudication claim, of Rider’s Rider requested Wal-Mart sub- 11, 2002, tomit an IRE. On January Wal-Mart informed status, IRE,3 Rider that his following the changed from partial. responded petition total to Rider with status, reinstate his total disability alleging that Wal-Mart’s request IRE untimely was under The WCJ Rider, his granting petition with reinstatement on grounds June on Wal-Mart’s IRE did statute, not it comply beyond with as was requested sixty days following receipt Rider’s of 104 weeks WCJ, period began, according 104-week to the on the 21,1998, injury, 21, date Rider’s October and ended October 2000, 20, 2000. thus Wal-Mart had until December to request Moreover, that Rider submit IRE. the WCJ concluded that the pertinent language of Section mandatory requiring the insurer IRE sixty days upon expiration the 104 appealed weeks. Wal-Mart WCAB, decision to the which affirmed on 2003. A May three-judge of the panel Commonwealth reversed the Court in a published WCAB decision. The Rider distinguished court that, Gardner, itself from on grounds Gardner unlike employer disputed Rider’s entitlement to benefits. Wal-Mart Stores, Inc., A.2d at 664. Because litigated Wal-Mart claim, Rider’s regardless of the amount of benefits Rider accrued, the court Rider held that he not did “receive” 104 until benefits rendered WCJ its on decision November 2001. Id. Rider allowanсe of sought appeal, granted. which Wenner, Jr., D.O., January On Earl J. conducted IRE of concluded, statute, pertinent Rider and in accord that Rider percent impairment. had a 26
Having procedural backgrounds discussed factual analysis parties’ instant we turn now an appeals, disputes positions.4 Each instant centers whether of Section timing requirements not the insurers have met *6 to an automatic on benefits. 511.2 the IRE have effect to the requires looks when statute the dispute The Gardner hand, the the request. to make such an IRE On other insurer relates the the prescribed Rider to when 104-week dispute period begins. the appeals
We note as an initial matter that instant Act. all us construe a of the As in cases require portion to statute, a involving guided of we are the interpretation the § Act. Statutory of the 1 Pa.C.S. 1901 рrovisions Construction statutory The basic of construction is that a seq. et most tenet Assembly. intent of the 1 court must effectuate the General 1921(a); § In Absentee Ballots re: Canvass Nov. Pa.C.S. Election, 231, 1223, 4, Pa. 843 2003 General 577 A.2d 1230 (2004); Workers’Compensation v. Hannaberry Appeal HVAC (2003). Jr.), Pa.66, 524, 834 A.2d (Snyder, Board 575 531 We the intent is the legislative have stated that best indication of Co., at of a statute. 822 A.2d 679 language Mfg. Gilmour omitted). addition, (citation In to upon when a court is called statutory phrases and shall be language, “[w]ords construe according grammar according construed rules 1 approved usage....” (quoting common and Id. their Pa.C.S. 1903). Further, § of a statute are clear and when words disregarded letter of it not to ambiguity, free from all 1921(b); 1 pretext its pursuing spirit. under Pa.C.S also, Canvass, Scheipe 843 at 1230 v. (citing see re: A.2d (1999)). Orlando, 112, 475, Pa. A.2d 478 559 739 “Where of a clear and free from ambiguity, words statute are gleaned very intent is to be from those words.” legislative Responsibility Financial Claims Pennsylvania Assigned interpretation question proper of a before us involves the statute. thus, and, question a of law our standard review is de novo. This is Co., 143, 676, Mfg. Pa. A.2d v. Gilmour 573 822 679 Commonwealth review, (2003). necessary legal scope Our extent to resolve 637, us, Jones, Township plenary. v. 571 Pa. question before Buffalo (2002). 4 813 A.2d 664 n.
373 (1995). also, English, Plan v. 541 Pa. 664 A.2d See (Schatz Board Compensation Appeal Ramich v. Workers’ (2001). Electric, Inc.), Pa.656, 770 A.2d When of the statute are not the intention of explicit, words may by considering be ascertained 1921(c), including, factors enumerated at 1 inter Pa.C.S. alia, statute, the occasion and the conse necessity quences particular of a or administrative inter interpretation, 1921(c). pretations. Pa.C.S. must, our terms begin anаlysis, statutory
We at issue. The pertinent statutory section reads as follows:
When an has employe disability compensation received (a) pursuant to clause for a of one four period hundred weeks, to, employe unless otherwise shall be submit to medical examination which shall be requested by the insurer within sixty days upon expira- *7 tion of the one four to degree hundred weeks determine the of if impairment compensable due to injury, any. of degree impairment shall be an upon determined based evaluation aby physician who is licensed in this Common- wealth, is by who certified an American Board of Medical Specialties approved osteopathic board or its equivalent is practice who active clinical for at twenty least hours week, per by agreement chosen of the or parties, desig- nated department, pursuant to the most recent edition of the American Medical Association “Guides to the of Evaluation Permanent Impairment.” 511.2(1). § 77 P.S. that,
The next subsection in the statute dictates if the impairment rating produced in the evaluation set forth process 511.2(1) in Section to equal greater is or than fifty percent, claimant is to be presumed totally disabled and will continue to disability receive total benefits. Should the outcome of the yield impairment evaluation than rating fifty per- less cent, benefits, the claimant’s total disability upon sixty days’ notice, are automatically reduced to partial disability benefits. 511.2(2). 77 P.S. statute, Assem- the General section of the subsequent
In a bly provided: adjudicated it until shall continue
Total ceased that total has § 512] under P.S. [77 impairment rating to an improves condition employe’s or the degree imрair- fifty per than centum that is less the American recent edition of under the most ment defined of Permanent to Evaluation Medical Association “Guides Impairment.” 511.2(5).
77 P.S. to an insurer 6 of the statute allows Finally, subsection medi- undergo impairment-related a claimant request examination, providing: cal insurer, shall submit to an employe
Upon request in accordance with medical examination independent to determine the 651] of section provisions [77 however, Provided, for purposes That impairment: status to clause, not be submit shall employe of this under this medical examinations independent more than two period. during clause a twelve-month I. Rider ease, in that contends Section Rider, the Appellant sixty-day and that the window Wal-Mart unambiguous he when an IRE commenced October According had “received” the IRE Rider, insurer the failure Wal-Mart’s plus sixty- day 104-week before December closed, untimely. any subsequent request made day window *8 not provide of the statute does language Rider asserts that on underlying case is it or be tolled while may shall statute, Rider in this and No are found appeal. exceptions any conduct that would engage that he did not declares inaction. misled Wal-Mart to have hand, us to construe the Wal-Mart, the other asks on 511.2(1) it used in Section of “received” as meaning first be entitled that the claimant tolling requirement include a
375 to the disability benefits that he or she received. Accordingly, Wal-Mart contends that the period 104-week this matter and, did not start the litigation until ended for the second time, the WCJ awarded benefits to Rider on November assertion, 2001. Based on this Wal-Mart suggests sixty- day clock for requesting the IRE started weеks after the adjudication final WCJ’s on November and ended January 2004. Wal-Mart argues that its for Rider IRE, to submit to as it came on December was before well of the lapse applicable period. accept
We cannot Wal-Mart’s position respect when the time arises for making the IRE purposes of the automatic relief set forth in Section First and foremost, argument Wal-Mart’s is at odds with our statutory mandate effectuate the intent of the General Assembly as evidenced the language 1921(a). § statute. 1 Pa.C.S. Moreover, we are bound to construe according words to their common approved usage. Pa.C.S. 1903. For purposes of resolving matter, the Rider the operative term of Section 511.2(1) is “received.” The meaning of this term is significant, receipt of 104 weeks of total disability benefits triggers the sixty-day сountdown for the insurer to act in order to benefit from the self-executing procedure set forth in 77 P.S. 511.2(l)-(2). “received,” term according to its common and approved usage, means acquisition or having come into possession.5 Wal-Mart suggests a meaning for “received” is not common and approved basis, and on that its position Thus, cannot stand. under the procedure for obtain ing an automatic reduction in benefits 511.2(2), sixty-day for an window insurer to request an IRE under begins once the employee received, has is, acquired or comes into possession of 104 weeks of total reasons, benefits.6 For these we must reverse the Commonwealth Court’s decision in Rider. primary
5. The "receive," definition of the intransitive form of the verb acquire get something; "[t]o recipient.” be a Heritage American ed., (1981). College 2d Dictionary, Moreover, appeals Wal-Mart's assertion that its tolled Rider's entitle- benefits, ment to that, longstanding stands contrast principle
II. Gardner however, 511.2(1), statutory Section analysis Our point, at this as the in presented does not end issues Gardner Rider, as compel undertaking. us to continue this Just in the the outcome turned on term “received” in Section where 511.2(1) 511.2(1), the critical in Section correspondingly word such, for the the term As are matter is “shall.” Gardner “shall,” in a question faced the of whether as written with statute, permissive is a or term. mandatory
As in taken suspected, opponents the Gardner have may on positions falling mandatory-permissive both sides the up Genesis, that “shall” as it used naturally, divide. advocates is 511.2(1) directory. is The foundation permissive Section exclusively for conclusion rests almost on the premise Gеnesis’ 511.2(1) ambiguous, that Section as Genesis contends mandatory only unambigu- “shall” can be when statute despite ous. makes these its con- explicit Genesis assertions 511.2(1), state a and fast “appears cession that Section to hard request only an IRE requiring rule insurers to within (Genesis’ 12). period.” p. at specific sixty-day brief Genesis however, that obscures the clear argues, ambiguity otherwise 511.2(1) conjunc- when is read in words of Section statute tion with other subsections of Section 511.2 and other portions 511.2(6) an example, Act. For Genesis cites 77 P.S. for not instance in which the time IRE is requesting 511.2(1), rather, defined, but open- as is case Section that, given ambiguity ended. submits as to Genesis when IRE, can an there is no way insurer Assembly intended insui*er be required request the claimant submit to IRE under 77 P.S. 511.2 days receipt the claimant’s sixty employer supersedeas, absent а the burden remains on to continue litigation pay compensation during period. McLaughlin v. See (St. House), Country Compensation Appeal Board Francis (Pa.Commw.Ct.2002). 15, 1999, A.2d December 288-89 On beginning WCJ awarded benefits to Rider October 1998. Wal-Mart but, January applied supersedeas, denied for WCAB therefore, respects; Wal-Mart's all material Wal-Mart’s obligation unchanging. remained constant and argues benefits. Genesis further that the General impose any comply did not sanction failure of an insurer sixty-day requirement and that Assembly’s this omission the General intent conveys *10 permissive “shall” is also asserts that directory. Genesis only mandatory “shall” is when the time and manner essence, that, and to something respect Section 511.2(1),there is nothing suggestive urgency. of such Genesis us to defer the Bureau of urges regulations promulgated by to resolve Gеnesis terms is Compensation which what 511.2(1). Finally, the “inherent Genesis ambiguity” Section policy that resort to and consid- legislative history public avers necessary quandary presented by erations is to resolve the 511.2(l)’s sum, ambiguity. Section Genesis’ view of the statute is that an insurer is entitled to make an IRE request 511.2(1), beyond the time constraints set forth in Section still be entitled to the automatic relief under Section stated, position, simply Gardner’s is that “shall” as it reads 511.2(1) in mandatory. arguments Section We find Genesis’ unpersuasive.
Notwithstanding general mandatory, rule that “shall” is 201, 148, Oberneder v. Link 548 Pa. 696 Computer Corp., A.2d (1997), 150 we are that the also has aware word “shall” been interpreted “may” to mean or as being merely directory, as Baker, 214, opposed mandatory. Commonwealth v. 547 Pa. 164, 167(1997). also, 690 A.2d ex rel. See Commonwealth Bell Powell, (1915) v. 249 Pa. 94 A. 748 (interpreting Hi-Acres, Inc., “shаll” as v. “may”); Fishkin 462 Pa.
A.2d 97-8 (1975)(interpreting merely “shall” be directo ry opposed mandatory). above,
As stated we must construe the terms of a statute to their according approved usage. common and Given that court has susceptible diametrically this found “shall” to be opposed interpretations, we cannot conclude term “shall,” 511.2(1), as it is in clear used Section is so and free ambiguity from all can attach one or the other meaning Fortunately, without reservation. General As- sembly provided necessary guidance us with the to address a statute terms a situation. confronted with whose
such
When
1921(c)
us to ascertain the
permits
are not
Pa.C.S.
explicit,
511.2(1) by
in
Assembly’s
drafting
intent
Section
of enumerated factors set forth
any one of a list
considering
statutory provision.
view,
Assembly’s
drafting
intent
In our
the General
511.2(1)
becomes manifest
consideration
contrary interpretation.
of a
Pa.C.S.
consequences
1921(c)(6).
manner,
it remarkable as a
In this
we find
care and consideration
Assembly’s
measure of the General
chose to utilize
legislature
drafting Section
signifi-
than three times. Still more
the term “shall” no less
instances,
that, in
these three
the term “shall”
cant is
each of
the three
upon
to an
one of
obligation imposed
correlates
first, the statute de-
process:
to the IRE
parties pertinent
submit to the
clares that
“shall
*11
IRE”; second,
...
requested
“a medical examination
shall be
third,
time;
a
and
by
specified
“[t]he
the insurer” within
...
aby physician”
shall be determined
degree
impairment
Thus,
to
criteria.
the General
according
specific
affirmative
upon
just
not
imposes
obligations
addresses and
one,
in the
possessing indispensable
but all three
roles
parties
cannot be
process.
obligations
imposed
IRE
The
so
viewed
IRE
mandatory, as the success of the
any
way
other
but
on such. To
depends
as a cost-containment measure
process
511.2(1) merely
as
obligations imposed by
construe the
Section
mandatory,
to
threatens to render the
directory,
opposed
as
and,
extension, the
by
process, meaningless. See
obligations,
Canvass,
adopt
approach,
This our does not end task in 511.2, construing preceding analysis does not address permits Subsection which also an insurer to request a claimant to a geared submit medical examination towards the impairment concept. Subsection Unlike this subsection neither time imposes upon restrictions an insurer’s ability make the nor request,7 provide does it for an automatic reduction of benefits based upon impairment rating.8 Rather, a of compensation partial disability reduction when occurs examination under 6 is governed by Subsection Subsection requires adjudication agreement which modified, under before benefits bemay where “total or the condition employe’s improves *12 procedure by 7. 314 forth thе Section sets which an can insurer secure a physical expert specifies procedure examination or interview the and compelling comply for claimant request. a to with such a See 77 P.S. 651(a). § While the section a also allows claimant to have a health examination, provider choosing participate care physical of his the it 511.2(1) exempts occurring examinations under 77 P.S. from this provision, indicating instead such examination shall conducted physician meeting qualifications. a licensed certain See 77 P.S. 651(b). § 511.2(6) 8. being required Section limits an from to submit to during more than two examinations under this subsection a twelve- period. month 380 less
impairment fifty per that is than centum.” 77 P.S. rating 511.2(5).9 § thus supplemented has tradition-
The General for a to securing partial al reduction benefits approach IRE, рroviding of an disability by incorporating concept self-executing, for a automatic modification of benefits where rating an a a dispositive impairment insurer secures 511.2(l)-(2), and period, affording § time under 77 defined P.S. an opportunity rating to establish impairment insurers reduce ad- periods other time to benefits via traditional 511.2(5-6). process, under P.S. ministrative at- Assembly’s Genesis’ claims that failure to express comply tach sanction on the failure to with the any 511.2(1) time or is requirements suggest of Section time more process essence in the IRE serves no than issue, from central away namely, draw attention 511.2(1) obligations imposes mandatory upon par- Section self-executing it relates key process ties IRE as 511.2(2). portions interpretation reconcile
9. The Dissent fails to its Subsection its with Subsection Under interpretatiоn, Subsection 7 sets a strict and artificial limitation on the benefits, receipt disability unambiguous whereas the clear and of total terms of Subsection 5 mandate that total benefits shall contin- adjudicated ue it is that total has or the until ceased rating fifty impairment percent. than claimant's less Dissent’s injects passage view of Subsection 7 the mere of time one of the Moreover, triggers for the cessation of total benefits. determination, premise upon a crucial of the Dissent relies factual namely, matters, employers’ "implicit agreement” to extend benefits in these support finding. finding A with no record citation to such a employer agreement an between an and claimant to extend benefits status, employer’s arguably employer as an not would alter an who has benefit, agreement have the under made such an would not the Dis- view, self-executing reducing process for To sent’s benefits. does, conclude, explicit agreement as the the absence an Dissent implicit agreement provide could an tantamount an license to employer to miss later the deadlines of Subsection claim agreement beyond implicit to extend benefits which would employer self-executing process reducing allow the the benefit Third, agree- explain adequately how the Dissent fails to its ment to extend benefits under view of Subsection 7 translates into an agreement to extend the deadlines set forth Subsection *13 381 (“PDI”) Defense Institute Pennsylvania and Amici Genesis (“PSIA”) assert Association Self-Insurers’ Pennsylvania and decision Court’s the Commonwealth should reverse of the authority rulemaking to the in deference Gardner (“Bureаu”) it the rules and Compensation Bureau of Workers’ 511.2(1), 34 specifically, regard to Section promulgated § 123.102. Pa.Code adminis by a statute
“Although interpretation weight, interpretation great is entitled to agency trative erroneous clearly interpretation if the disregarded bemay regulation under which the the statute or inconsistent with Co., Nat’l Ins. Pennsylvania v. Terminato promulgated.” (1994). 60, 645 A.2d Pa. the Bureau’s rulemak- from deferring are precluded
We of the portions find in this instance because we ing authority 123.102, § to be inconsistent regulation, Pa.Code pertinent (a) rule states: of that Subsection with Section to the subsequent expiration During 60-day period disability bene- of 104 of total employee’s receipt weeks at an fits, attendance may request employe’s the insurer this 60- during If is scheduled to occur IRE. the evaluation shall adjustment time of the benefit status day period, of 104 employee’s receipt back to the of the expiration relate cases, In all other of total weeks shall be effective as of adjustment status or as determined evaluat- the date of the evaluation ing physician. 123.102(a). (f) 123.102 of Section
34 Pa.Code Subsection states: (77 306(a.2)(6) the act section
Consistent -with 511.2), failure to the evaluation the insurer’s expiration 60-day period subsequent during of total bene- of 104 employee’s receipt right of the insurer’s fits not result a waiver may attendance at an IRE. compel employee’s 123.102(f). 34 Pa.Code 123.102(a) (f) and the statute under Rules
Reviewing 511.2, we promulgated, these were provisions which statute and rule. in the find inconsistencies between Whereas statute, mandates the insurer to re- submit to the IRE for the quest purposes *14 511.2(2) obtaining the automatic relief Section within 123.102(a), limits, providing Rule sets no time sixty-day period, at an may request employe’s that the “insurer attendance 123.102(f), Similarly, IRE.” Rule which its terms could mandate in the instance an abrogate statutory when the automatic relief provided insurer seeks obtain Section 511.2(1). 511.2(2), is inconsistent Consequently, with Section are not to defer to the Bureau’s rules interpretive we and the of Genesis and the must fail. Rules arguments Amici 123.102(f), however, that, may support read our view 511.2(6) may request employee under Section an insurer an window; IRE beyond sixty-day submit to an the conse- however, of such examination cannot to auto- quences operate reduce the matically claimant’s benefits. conclusion, receives, is, once a claimant comes into benefits, of 104 of total the insurer
possession, weeks sixty days during has from that dаte it must request which the claimant submit to an IRE for the purposes obtaining the automatic relief set forth An an to an IRE request insurer’s failure submit 1, however, time frames of proscribed within Subsection that an preclude requesting employ- does not insurer from above, ee an IRE at a time. submit to later As mentioned 511.2(6) permits insurer the claimant IRE, not, submit to an the results of are as in which Section rather, to a self-executing, applicable but traditional reasons, process. administrative For aforementioned we affirm Gardner the Commonwealth Court’s decision to the extent from an IRE to precluded seeking Genesis 511.2(l)-(2) obtain the automatic relief under reverse the Commonwealth Court’s decision in Rider to the January extent that the IRE it obtained on not could and, be the basis for an automatic reduction in benefits therefore rеinstate the Compensation decision Board Rider’s reinstatement Appeal granting petition. CASTILLE, SAYLOR, Justice join EAKIN and BAER opinion.
Justice files a concurring NIGRO opinion.
Justice NEWMAN files dissenting opinion. NIGRO,
Justice
Concurring.
I agree
the majority’s dispositions
with
in both the Gardner
Moreover,
and Rider cases.
specifically
respect
case, I agree
Gardner
with the majority that an insurer must
(“IRE”)
an impairment rating evaluation
sixty
days after an employee has received
compensa
tion for a
period
if
the insurer
modify
wants to
the employee’s
511.2(l)-(2).
benefits pursuant
§§
to 77 P.S.
I
agree
also
interpretation
this
of the statute is clear based
on the General Assembly’s use of the word “shall” when
*15
describing the manner in which an insurer must request an
511.2(1).
IRE.
However,
§
See 77 P.S.
unlike the
I
majority,
do not believe that the
meaning
word “shall”
ambigu
Rather,
ous.
in accordance with this Court’s decision in
Oberneder v.
Computer
Link
Corp., 548 Pa.
Justice Dissenting. The Majority concludes that neither Barbara Gardner (Gardner) (Rider) nor Leroy Rider must submit themselves for an impairment (IRE) rating evaluation based on an inter- 306(a.2)(l) pretation of Section of Compensation (Act),1 Act 511.2(1), 77 although the Majority would find amended, 1. Act of June P.L. as 384 and Rider to submit to an IRE
that Gardner could 306(a.2)(6). I Because pursuant to Section believe reached result matters Majority has an erroneous both us, respectfully before I must dissent. recognizes employee may
The Act modification, accordingly permits time and rein change over statement, upon or termination of benefits based suspension, change employee’s disability. in the In degree its in Kachinski v. this Court issued landmark decision Work Co.), Board Compensation (Vepco men’s Construction Appeal (1987), Pa.240, A.2d the steps 374 which outlined for a modification of benefits when necessary downward gainful employment. found order employee capable was benefits, to achieve that reduction we stated acquire a from a employer opinion physician must favorable changed that the medical condition has employee’s capable returning degree to some was obtained from employment. opinion Once favorable then the burden of physician, emрloyer producing had job referral at least one open occupation evidence of a medically perform. that the cleared to This employee was became the sce resulting standard and return-to-work “[t]he narios into as to challenges devolved fact-based whether clearance; claimant received medical a claimant had whether had, faith, referrals; on the up employer’s followed good met the of a employer requirements and whether the technical referral, education, such proper age, training, experience, distance, restrictions, Comp. medical etc.” v. Workers’ Caso (Sch. Pa.287, Dist. A.2d Appeal Philadelphia), Bd. *16 219, (2003) (Newman, concurring). J. Assembly the General Act
Subsequently, enacted 57,2 to the Act. Act sweeping changes Through which made the cost Assembly sought the General reduce of workers’ Commonwealth, benefits main- compensation within while injured. for If taining truly benefits those workers were regained that the has or all evidence establishes worker some earning his can be pre-injury capacity, or her benefits Act June P.L. 350. Thus, disability. one physical to reflect a decrease in modified Assembly, by chosen General procedures new states, sister is the among successful our one has been IRE. a
The also chose to establish strict and receipt disability on the employee’s artificial limitation Act, an by and as established Substantively, one hundred four injured may not receive excess of worker impairment rating unless an disability payments weeks of total 511.2(7).3 fifty percent. is established that exceeds 306(a.2)(l) that, if IRE has not been mandates the time that perfоrmed by agreement parties by between claimant reaches one hundred four weeks of total benefits, sixty an IRE then the insurer must within anniversary.4 of the one hundred statute days four-week and I agree that the insurer “shall” make says Majority requires mandatory that this action of the insurer unless there is an to the part agreement contrary.
However, Court, I agree cannot with the Commonwealth affirmed that failure to obtain an IRE by Majority, sixty-day all fu- statutorily prescribed precludes window ture IREs that in an reduction in would result automatic 3. That section states: partial disability In no event shall the total number of weeks of thereof, any injury exceed five hundred for or recurrence weeks regardless changes may in status in occur. no event shall the total number of weeks of total exceed one any employe hundred four weeks fоr who does not meet a threshold impairment rating equal greater fifty per that is to or than centum impairment under the recent edition of the American Medical most Impairment” Association "Guides to the Evaluation of Permanent any injury or recurrence thereof. 511.2(7).
77 P.S. pertinent part: 4. That section states in employe disability compensation When ... for a has received total (2 period years), of one hundred four unless otherwise to, employe shall be to submit to a medical examination requested sixty days upon which shall be the insurer within degree expiration impairment of the one hundred four weeks to determine compensable injury, any. if due *17 presumption There no basis for a simply logical is injury occurring and this Common- every each work the course of one hundred four weeks wealth will evolve ovеr recovery impairment to a amenable to an assessment. level that such a uniform any legislative Neither is there indication Act contemplated by approach was provide penalty chose not to The General the one hundred by failure to secure the IRE four-week Moreover, parties may agree because the to an anniversary. weeks, four expiration IRE one hundred prior from bene- precluded receiving (unless hundred four an beyond fits that extend one I fifty percent), is established that exceeds impairment rating an Assembly permitted agreement by that the believe General this parties my opinion, agreement to extend benefits. must take to the one hundred four-week anniversa- place prior I conclude that this is the ry, explicitly implicitly. either judice. situation in the cases sub here did not cease benefits after one employers paying The 306(a.2)(7) weeks, although permits four Section hundred implicitly agreed so. have employer Ergo, parties do at rating that each claimant’s would exceed 50% impairment This enables total anniversary.5 the one hundred four-week neglected Majority that I to reconcile subsection five and 5. The believes problem are clear subsection seven. I fail to see as both sections 306(a.2)(5) simply and there is no conflict. Section limited 306(a.2)(7). period I further defined benefit contained Section important aspect impair- believe that this limitation is an of the entire Majority rating respect, With all due fails ment evaluation scheme. 306(a.2). analysis, subparts to reconcile all Nowhere its Majority even discuss the effect of subsection seven on its does 306(a.2) interpretation read com- of Section and subsection seven is pletely out of the statute. Majority critically explain I “how an The comments did not agreement [my] to extend benefits under view of Subsection 7 translates agreement extend the deadlines set forth in Subsection 1.” into an 9.) (Op. simple at 380 n. answer to that is that Subsection explicitly provides agreement parties. for an between the The text of part: pertinent Subsection states disability compensation employe has received total ... for a When (2 period years), of one hundred four weeks unless otherwise to, employe to submit to a medical examination shall beyond the one four- disability benefits extend hundred anniversary week and its until time as sixty-day window such meaningful. an IRE is It is also that the noteworthy *18 a a Assembly provide by did not mechanism which claimant can seek to an IRE when the has failed to employer secure act. This is because the claimant’s total significant disability benefits must end after one hundred four if neither an weeks § IRE nor an is in I am agreement place. 511.2(7). P.S. convinced no such mechanism was because the provided to parties, explicit agreement, absent are deemed have agreed impairment that a claimant has an excess of rating 50%.
I find that the Act 57 amendments total establish new scheme, disability scheme. Pursuant no claimant can receive more than one four of hundred weeks total benefits his or her of degree impairment unless exceeds 50%. agree P.S. The claimant and the can employer 511.2(7). on the timing of IRE. A claimant to an may submit IRE weeks, of voluntarily expiration before one hundred four but must tо an sixty submit IRE made of days within the one expiration. employer hundred four-week Where an timeframe, fails to IRE seek an the em- allotted ployer has implicitly agreed that claimant’s of degree impair- ment exceeds 50% and the claimant can continue receive total disability benefits. Once an IRE is performed, additional IREs requested can be the impair- establish the status of ment, but no more than sought two IREs can be in any twelve-month period. 511.2(6). requested by days upon which sixty shall be the insurer within expiration degree of the one hundred four to determine the impairment compensable injury, any. due if 511.2(1). language, The “unless otherwise to” timing only any agreement
where the limitation on the is that it must weeks, expiration occur before the of one hundred four means that the parties agree performed prior can to have the IRE to or after the expiration period employer of the one hundred four-week still provision. receives the benefit automatic modification Claimants agreement they may also benefit in that continue to receive total expiration after benefits of one hundred four weeks. 77 §P.S. to a to the construc- approach I cannot agree hypertechnical 306(a.2), particularly light tion and Section application parties permits provision statutory by agreement. those requirements to deviate from implicitly agreed Health Ventures I would find Genesis than 50% when she reached impaired that Gardner was more Thus, anniversary. one Gardner’s hundred four-week beyond benefits could continue October did an IRE. This on June sought until Genesis Genesis I find submit to Accordingly, that Gardner must would 306(a.2)(l) to establish the status pursuant an IRE of her impairment. to the facts in approach this same Wal-Mart applying
Stores, Majority responsi- I that Wal-Mart was agree with though during litigation. benefits Even payment ble *19 until Board affirmed liability dispute remained WCJ, place no supersedeas benefits was award one beyond paid through and Wal-Mart benefits that, I anniversary. would find Again, hundred four-week sixty days did an IRE within because not Wal-Mart it period, implicit- of the one hundred four-week expiration Hence, I that Rider’s exceeded 50%. ly agreed impairment find that must submit to IRE. would also Rider I foregoing, Based on the would reverse Order Compensation Court in v. Commonwealth Gardner Workers’ (Pa. (Genesis Ventures), 814 Board Health A.2d Appeal Cmwlth.2003), and affirm the decision of Commonwealth Stores, Compensation Inc. v. Court Wal-Mart (Rider), (Pa.Cmwlth.2003), albeit A.2d 661 Board Appeal grounds. on different