Melmark Home v. Workers' Compensation Appeal Board (Rosenberg)

DISSENTING OPINION BY

Judge SMITH-RIBNER.

I respectfully disagree with the majority’s decision to vacate the order of the Workers’ Compensation Appeal Board and to remand this matter based on the conclusion that the Board erred in interpreting the statutory requirement for an employer or insurer to provide “prompt written notice” to a claimant of receipt of medical evidence indicating that the claimant is able to return to work as requiring such notice within thirty days. In this case, one notice was issued by Employer Melmark Home on November 29, 2005 based upon a doctor’s report dated June 16, 2005. An earlier report of another doctor is dated January 28, 2005, and, although that report bears stamped dates of March 9, 2005 and April 4, 2005, the evidence of record is *165insufficient to determine whether it was received by Claimant Joan Rosenberg or her counsel on either of those dates.

The Board did not exceed its authority in interpreting the statutory requirement that appears in Section 306(b)(3) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 512(3), which provides: “If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant....” (Emphasis added.) The notice must state (i) the nature of the employee’s physical condition or change of condition; (ii) that the employee has an obligation to look for available employment; (iii) that proof of available employment opportunities might jeopardize the employee’s right to ongoing benefits; and (iv) that the employee has the right to consult with an attorney in order to obtain evidence to challenge the employer’s contentions.

The Workers’ Compensation Judge (WCJ) observed that the phrase “prompt written notice” is not defined in the Act, and he concluded that such notice must be mailed within thirty days. This Court held in Summit Trailer Sales v. Workers’ Compensation Appeal Board (Weikel), 795 A.2d 1082 (Pa.Cmwlth.2002), that providing prompt written notice of the ability to return to work after receipt of medical evidence is a “threshold burden” that an employer must meet to obtain modification or suspension of benefits. The WCJ concluded that Employer had not met that burden. The Board concluded that, "without other guidance in the Act or in case law, the WCJ’s determination was correct. It noted that a claimant must complete and submit a form within thirty days of beginning employment or self-employment and that another form requires a claimant to admit or deny employment or self-employment within thirty days of receipt, and it concluded that it was reasonable to require an employer to respond in thirty days as well.

First, the majority agrees that the Act does not define “prompt written notice” but concludes that the WCJ and the Board had no basis in the Act to declare that notice given more than thirty days after receipt is not prompt. This approach, however, fails to give due deference to the Board in its interpretation of the statute that it is charged to enforce. In Tool Sales & Serv. Co., Inc. v. Board of Finance and Revenue, 536 Pa. 10, 22, 637 A.2d 607, 613 (1993) (citation omitted), the Supreme Court stated: “It is a well established principle of administrative law that agencies are entitled to deference in interpreting the statutes they enforce.... Other courts in this Commonwealth have held that an administrative agency’s interpretation should be overturned or disregarded only for cogent reasons or where it is ‘clearly erroneous’.” Similarly, this Court has held: “The agency’s interpretation of its statute may not be disregarded by this Court unless it is clearly erroneous or is inconsistent with the intent or purpose of the statute.” Martin Media v. Department of Transportation, 700 A.2d 563, 566 (Pa.Cmwlth.1997). The Act on its face does not mention thirty days as the limit for “prompt written notice,” but that phrase must have some meaning, and the agency’s interpretation is not clearly erroneous or inconsistent with the intent or purpose of the statute.

Assuming arguendo that the interpretation of “prompt written notice” by the WCJ and the Board is erroneous, I disagree with the majority’s open-ended interpretation of that provision. As the majority notes, under Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa. *166C.S. § 1903(a), unless words or phrases are technical words and phrases or have acquired a peculiar and appropriate meaning or are defined in the Statutory Construction Act, they “shall be construed according to rules of grammar and according to their common and approved usage.... ” See also Educational Mgmt. Servs., Inc. v. Department of Education, 931 A.2d 820 (Pa.Cmwlth.2007).

Pursuant to Webster’s Third New International Dictionary 1816 (2002), “prompt” as an adjective means:

1: ready and quick to act as occasion demands: responding instantly: ALERT <~ to retort to insults> <~in obedience > 2 : performed readily or immediately : given without delay or hesitation <~ assistance > <~ decisions > <~ payment of bills > <~ delivery of goods>....

Thus “prompt written notice” in accordance with common usage would imply notice that is immediate and without hesitation, in other words, notice provided in well under thirty days.1 The majority interprets “prompt written notice” in Section 306(b)(3) to be notice of the medical evidence of a claimant’s ability to return to work that is given within a reasonable time after an employer receives the evidence and a reasonable time before the employer acts upon the evidence. Using this standard, the majority remands for a determination of whether Employer’s notice based on Dr. Maranzini’s report dated January 28, 2005 was received March 9 or April 4, 2005, and the majority pronounces that such notice was provided within a reasonable time after the doctor’s January 2005 report. The majority then concludes that notice in March or April was provided in a reasonable time before Employer acted on the report and therefore constituted “prompt written notice.”

The majority is doing the same thing that it accuses the WCJ and the Board of doing, namely, supplying text to the statutory provision. The majority’s interpretation is that an employer must provide “reasonable written notice,” but this is not the same as “prompt written notice.” Under the majority’s approach notice issued April 4 based upon a medical report received by Employer on January 28, that is, more than two months earlier, is “prompt written notice.” It is obvious that had the majority properly accorded the word “prompt” its common and approved usage pursuant to the standard dictionary definition, as required by Section 1903(a) of the Statutory Construction Act, it would affirm.2 Accordingly, I dissent.

. The majority’s limited quotation of the definition of "prompt” arguably loses the flavor of the full definition. In any event, in the present context the “occasion” in the phrase "quick to act as occasion demands” obviously is employer’s receipt of a medical report. I do not suggest that employer’s notice must be "immediate,” but consideration of the full definition certainly indicates that “prompt” notice should be given sooner rather than later.

. The majority states that it is not inserting "reasonable” into the language of the statute, but I disagree. Under the majority’s interpretation notice provided more than two months after employer’s receipt of a medical report may be deemed "prompt” if it is a reasonable time before the employer acts on the report. Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(a), provides in part: "The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” I do not believe that the General As*167sembly intended "prompt” notice to apply to notice provided more than two months after receipt.