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Commonwealth Court of Pennsylvania
April 15, 2015, Argued; September 18, 2015, Decided; September 18, 2015, Filed
No. 1024 C.D. 2014
[*408] OPINION BY PRESIDENT JUDGE PELLEGRINI
Mary Ann Protz (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) which granted Derry Area School District's (Employer) petition to modify Claimant's benefits (modification petition) from total to partial disability under Section 306(a.2) of the Workers' Compensation Act (Act).1 Because we find Section 306(a.2) of the Act unconstitutional pursuant to Article II, Section 1 of the Pennsylvania Constitution, we vacate and remand for further proceedings.
The following facts are not in dispute. In April 2007, Claimant sustained a work injury to her right knee when she fell while working for Employer, and Employer issued a notice of temporary compensation payable. When Claimant returned to work in August 2007, her benefits were suspended pursuant to Employer's notice of suspension. In February 2008, Claimant's work injury recurred, and her benefits were reinstated as per a supplemental agreement.
Subsequently, Employer filed a request for designation of a physician to perform an impairment rating evaluation (IRE), following which Jeffrey M. Moldovan, D.O. evaluated Claimant in October 2011 and provided a ten-percent impairment rating under the Sixth Edition of the American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment (Guides).2 In April 2012, Employer filed a modification petition, seeking to convert Claimant's total disability benefits to partial disability benefits thereby reducing the amount of compensation that can be paid to 500 weeks. See Section 306(a.2)(7) of the Act, 77 P.S. §511.2(7) ("In no event shall the total number of weeks of partial disability exceed five [**3] hundred weeks for [*409] any injury or recurrence thereof, regardless of the changes in status in disability that may occur....").
] A claimant is partially disabled if he or she has a total impairment rating of less than fifty percent. See Section 306(a.2)(2) of the Act, 77 P.S. §511.2(2). The impairment rating is determined pursuant to Section 306(a.2) of the Act, providing that it shall be determined under "the [**4] most recent edition of the American Medical Association 'Guides to the Evaluation of Permanent Impairment,'" which provide a percent of impairment for each particular injury.3 When the Act was enacted, the Fourth Edition of the American Medical [*410] Association (AMA) Guides to the Evaluation of Permanent Impairment (Guides) was in effect but at the time of Claimant's examination, the most current version (the Sixth Edition) was being used. Each edition can change the impairment rating for the same injury.
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124 A.3d 406 *; 2015 Pa. Commw. LEXIS 404 **
Mary Ann Protz, Petitioner v. Workers' Compensation Appeal Board (Derry Area School District), Respondent
Subsequent History: As Corrected September 18, 2015.
Appeal after remand at, Decision reached on appeal by Protz v. Workers' Comp. Appeal Bd., 131 A.3d 572, 2016 Pa. Commw. LEXIS 18 (Pa. Commw. Ct., Jan. 6, 2016)
Appeal granted by, in part Protz v. Workers' Comp. Appeal Bd. (Derry Area Sch. Dist.), 133 A.3d 733, 2016 Pa. LEXIS 501 (Pa., Mar. 22, 2016)
Appeal granted by, in part Protz v. Workers' Comp. Appeal Bd. (Derry Area Sch. Dist.), 133 A.3d 733, 2016 Pa. LEXIS 505 (Pa., Mar. 22, 2016)
Affirmed in part and reversed in part by Protz v. Workers' Comp. Appeal Bd. (Derry Area Sch. Dist.), 2017 Pa. LEXIS 1401 (Pa., June 20, 2017)
Prior History: [**1] Appealed from No. A13-0096. State Agency: Workers' Compensation Appeal Board.
Winchilla v. Workers' Comp. Appeal Bd. (Nexstar Broad.), 2015 Pa. Commw. Unpub. LEXIS 700 (Sept. 18, 2015)
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