Gardner v. WCAB (Genesis Health Ventures)

In Gardner v. Workers' Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 888 A.2d 758 (2005), our Supreme Court acknowledged that the term "shall" has been interpreted to be both mandatory and directory. Gardner, 585 Pa. at 377, 888 A.2d at 764-5. It reasoned, however, that because the General Assembly used the term "shall" three times in Section 306(a.2)(1) of the Act and each time imposed a duty on one of the three parties to the IRE process, the obligations imposed could not be viewed any other way but mandatory. Id. 585 Pa. at 378, 888 A.2d at 765. The Court indicated the third duty was that "'the degree of impairment shall be determined ... by a physician' according to specific criteria." Id. (citing Section 306(a.2)(i) of the Act). The Supreme Court stated that Section 306(a.2)(6) neither imposes a time restriction on an insurer's ability to make the request nor provides for an automatic reduction of benefits based upon the impairment rating. The court explained: Rather, a reduction of compensation to partial disability when the examination occurs under Subsection 6 is governed by Subsection 5, which requires an adjudication or agreement under 77 P.S. 512 before benefits may be modified, where "total disability or the employe's condition improves to an impairment rating that is less than fifty per centum." 77 P.S. 511.2(5). The General Assembly thus has supplemented the traditional approach for securing a reduction in benefits to partial disability by incorporating the concept of an IRE, providing for a self-executing automatic modification of benefits where an insurer secures a dispositive impairment rating within a defined time period, under 77 P.S. 511.2(1)-(2), and affording insurers the opportunity to establish an impairment rating in other time periods to reduce benefits via the traditional administrative process, under 77 P.S. 511.2(5-6). Id., 585 Pa. at 380, 888 A.2d at 766 (2005).