The Commonwealth Court had offered its first interpretation of Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II) in Thompson v. WCAB (Exelon Corporation) No. 1227 C.D. 2016. This decision is helpful to individuals representing claimants.
Debra Thompson underwent an Impairment Rating Evaluation in October of 2005. The examining physician found an impairment rating of 23%. Thompson then received a Notice of Change of Workers’ Compensation Disability Status changing her compensation from total disability to partial.
Litigation commenced between the parties in 2010 with the filing of a Modification and Suspension Petition by Employer. In 2011, the Claimant filed a Review Petition seeking to review the IRE determination because she had not reached maximum medical improvement. The Judge consolidated the petitions and found that the employer was entitled to modify the Claimant’s benefits from total disability to partial disability. However, the Judge changed the effective date of the Modification Petition to a later date than that noted in the Notice of Change of Status.
Both sides appealed to the Workers’ Compensation Appeal Board. The Appeal Board addressed only the issue of whether the claimant was time-barred from challenging her disability status. The Board felt that she was time-barred, as she had not filed her appeal within the 60 day period following her receipt of the Notice of Change of Status.
Claimant appealed to the Commonwealth Court, but did not raise any of the constitutional issues associated with the Protz decision. Instead, one of the main issues was whether or not the Claimant was deprived of due process through the use of the Notice of Change of Status. In Thompson I, the court held that the Claimant was deprived of her due process right due to the inadequacy of the language in the Notice of Change of Status. The Commonwealth Court remanded to the Appeal Board at that point. In a decision dated July 18, 2016, the Appeal Board determined that an automatic modification of the Claimant’s benefits under Section 306 (a.2) of the Workers’ Compensation Act was appropriate and ordered the benefits to be modified from total to partial disability, effective August 30, 2005. The Claimant had received severance benefits after the cessation of employment in lieu of workers’ compensation benefits. The appeal board determined that this period of benefits did not count toward the receipt of total disability. Therefore, the employer’s requests for an Impairment Rating Examination was timely.
The Claimant then appealed to the Commonwealth Court. For the first time, she raised the issue of whether the Workers’ Compensation Judge erred in modifying the claimant’s benefits based on that IRE performed under the Fifth Edition of the AMA Guides to the Evaluation of Permanent Impairment. At the time of filing the appeal to the Commonwealth Court in Thompson II, Protz I had been decided by the Commonwealth Court. The Employer did not argue that the use of the Fifth Edition of the guides was not unconstitutional. It argued that Thompson failed to timely raise the constitutional issue. In other words, this is the waiver issue put forth by the defense bar. Footnote Four of the decision is confusing, yet instructive. It notes there, “Because this matter began before Protz I and Protz II were decided and this appeal implicates the validity of Section 306 (a.2)(1) of the Act, Claimant raised this issue at the first opportunity to do so. See Pa. R.A.P. 1551(a). Thus, Claimant is not precluded from raising the issue of the improper use of the Fifth Edition of the AMA guides on appeal.”
This decision potentially represents a mortal blow to the waiver issues being raised and/or contemplated by the defense bar. While the reasoning of the court is not especially developed in the above-mentioned language, this is a case all practitioners must use in dealing with the Protz case and waiver issues.