L. Pullin v. S.D. of Philadelphia (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Linda Pullin, :
Petitioner :
:
v. : No. 727 C.D. 2021
: Submitted: January 21, 2022
School District of Philadelphia :
(Workers’ Compensation Appeal :
Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: February 25, 2022
Linda Pullin (Claimant) has petitioned this Court to review an
adjudication of the Workers’ Compensation Appeal Board (Board), reinstating
Claimant’s total disability benefits as of April 17, 2016, the date on which she
petitioned for reinstatement. On appeal, Claimant asserts that she is entitled to
reinstatement as of August 5, 2011, the date on which her disability status was
modified from total to partial based on an impairment rating evaluation (IRE)
process deemed unconstitutional. Pursuant to White v. Workers’ Compensation
Appeal Board (City of Philadelphia), 237 A.3d 1225 (Pa. Cmwlth. 2020) (en banc),
appeal denied, 244 A.3d 1230 (Pa. 2021), we affirm.
The underlying facts are not in dispute. On March 15, 2006, Claimant
suffered a work-related injury while employed by the School District of Philadelphia
(Employer). Employer began paying total disability benefits and disfigurement
benefits to Claimant. Thereafter, Claimant underwent an IRE that resulted in an
impairment rating of 44%. Because Claimant’s IRE was less than 50%, a Workers’
Compensation Judge (WCJ) approved a Stipulation of Facts executed by the parties
that modified Claimant’s disability status from total to partial, effective August 5,
2011.1 Claimant did not appeal this Decision.
On October 7, 2015, this Court determined that Section 306(a.2) of the
Act was an unconstitutional delegation of legislative authority because it proactively
approved versions of the American Medical Association’s (AMA) Guides to the
Evaluation of Permanent Impairment (Guides) without review. Protz v. Workers’
Comp. Appeal Bd. (Derry Area Sch. Dist.), 124 A.3d 406, 416 (Pa. Cmwlth. 2015)
(Protz I), aff’d in part and rev’d in part, 161 A.3d 827, 841 (Pa. 2017) (Protz II).
Rather than striking Section 306(a.2) in its entirety, we remanded the matter to the
Board with instructions that any IRE must adhere to the Fourth Edition of the Guides,
which was in effect at the time the General Assembly enacted Section 306(a.2). Id.On April 17, 2016, before her partial disability benefits expired,
Claimant petitioned to modify and/or reinstate her total disability status, challenging
her IRE rating based on this Court’s decision in Protz I. While her challenge was
under review, the Supreme Court struck Section 306(a.2) in its entirety, thus
eliminating the IRE process. Protz II, 161 A.3d at 841.
On April 5, 2018, the WCJ reinstated Claimant’s total disability
benefits as of June 20, 2017, the date on which the Supreme Court issued Protz II.
1
Under Section 306(a.2)(2) of the Workers’ Compensation Act (Act), Act of June 2, 1915,
P.L. 736, as amended, added by the Act of June 24, 1996, P.L. 350, 77 P.S. § 511.2 (held
unconstitutional in Protz II), a claimant with an impairment rating equal to or greater than 50%
was presumed to be totally disabled, whereas a claimant with an impairment rating less than 50%
was considered partially disabled. 77 P.S. § 511.2(2). A change in disability status does not alter
the amount of compensation received by a claimant but limits the receipt of benefits to 500 weeks.
See 77 P.S. § 512(1).
2
Both parties appealed to the Board, which remanded the matter to the WCJ to
consider still more recent changes to the relevant law.2 On September 18, 2020,
following an extended review, the WCJ reinstated Claimant’s total disability
benefits as of April 17, 2016. Claimant appealed to the Board, which affirmed;
Claimant then petitioned for this Court’s review.
On appeal,3 Claimant contends that she is entitled to reinstatement of
her total disability benefits retroactive to August 5, 2011, the date on which her
benefits were modified pursuant to a statute deemed unconstitutional.
Acknowledging that this Court has declined to do so in similar cases, see Claimant’s
Br. at 12, Claimant nonetheless suggests that her appeal presents an “opportunity to
rectify this injustice.” Id. at 13.
Our prior decision in White controls the outcome of this case. In that
case, a claimant was injured in the course of her employment with the City of
Philadelphia (City). White, 237 A.3d at 1226. The claimant underwent an IRE,
which resulted in an impairment rating of 36%. Id. at 1227. Based on this result,
the City petitioned to modify the claimant’s disability status from total to partial. Id.
A WCJ granted the City’s petition, and the claimant did not appeal the modification
2
The Board referenced our decision in Whitfield v. Workers’ Compensation Appeal Board
(Tenet Health System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018) (en banc) (permitting
a claimant to petition for reinstatement of total disability benefits provided (1) claimant remains
disabled and (2) claimant seeks reinstatement within three years from the date of her last payment
of compensation), and Act 111, Act of October 24, 2018, P.L. 714, No. 111, which reestablished
the IRE process. See Board Op., 3/4/19, at 2-3.
3
The scope of our review is limited to determining “whether there has been a violation of
constitutional rights, whether errors of law have been committed, whether board procedures were
violated, or whether necessary findings of fact are supported by substantial evidence.” Bryn Mawr
Landscaping Co. v. Workers’ Comp. Appeal Bd. (Cruz-Tenorio), 219 A.3d 1244, 1252 n.5 (Pa.
Cmwlth. 2019) (citation omitted).
3
of her disability status, nor was she actively litigating her status when the IRE
process was deemed unconstitutional. Id. Rather, the claimant first challenged the
validity of an IRE after the Protz I and Protz II decisions. Id. Under these
circumstances, this Court determined that the claimant was only entitled to
reinstatement of total disability benefits as of the date she filed her reinstatement
petition. Id. at 1231.
We have consistently applied White under similar circumstances. See,
e.g., Hutchinson v. Annville Twp. (Workers’ Comp. Appeal Bd.), 260 A.3d 360 (Pa.
Cmwlth. 2021); Marcellini v. Sathers, Inc. (Workers’ Comp. Appeal Bd.) (Pa.
Cmwlth., No. 1014 C.D. 2020, filed Sept. 13, 2021) (unreported); Ruggiero v.
Commonwealth (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 934 C.D. 2020,
filed May 12, 2021) (unreported).4 Indeed, “we are bound to follow the decisions of
our Court unless overruled by the Supreme Court or where other compelling reasons
can be demonstrated.” Crocker v. Workers’ Comp. Appeal Bd. (Ga. Pac. LLC), 225
A.3d 1201, 1210 (Pa. Cmwlth. 2020). We discern no compelling reason to depart
from our holding in White in this case.5
4
We cite Marcellini and Ruggiero for their persuasive value in accordance with Section
414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
5
Considering the binding precedent that controls the outcome of this case, we need not
address in detail the arguments Claimant asserts in favor of disregarding White and its progeny.
Nevertheless, we note that each argument has been addressed previously by this Court, or our
Supreme Court. Therefore, Claimant’s assertions do not present compelling reasons to depart from
White.
For example, Claimant asserts that we should give “full retroactivity” to the Supreme
Court’s decision in Protz II and hold, accordingly, that the IRE process used to modify her
disability status is void ab initio. See Claimant’s Br. at 9-15, 17-29. In Dana Holding Corp. v.
Workers’ Compensation Appeal Board (Smuck), 232 A.3d 629 (Pa. 2020), our Supreme Court
declined to do so following a robust analysis of the retroactive force of its holding in Protz II. The
Court concluded, rather, that the general rule of retroactivity should prevail and applied Protz II in
4
Here, Claimant did not appeal the WCJ Decision in 2011, which relied
upon an IRE to modify her disability status from total to partial. Rather, Claimant
waited until after Protz I was decided before seeking reinstatement of total disability
benefits. Pursuant to White, Claimant is entitled to reinstatement as of the date on
which she petitioned for reinstatement, April 17, 2016. Accordingly, we affirm the
Board’s adjudication.
LORI A. DUMAS, Judge
that case because it was pending on appeal at the time of the Protz II decision. 232 A.3d at 634-
49; see also Weidenhammer v. Workers’ Comp. Appeal Bd. (Albright Coll.), 232 A.3d 986, 989-
95 (Pa. Cmwlth.) (similarly holding that “the ruling in Protz II was not intended to be given a fully
retroactive effect”), appeal denied, 242 A.3d 912 (Pa. 2020).
Claimant also asserts that the Board’s adjudication has deprived her of a vested right to her
disability benefits and, therefore, violates article I, section 2 of the Pennsylvania Constitution, also
known as the Remedies Clause. See Claimant’s Br. at 15-17, 29-31. In at least two unreported
decisions, we have held that a claimant does not have a vested right in workers’ compensation
benefits. Marcellini; Perillo v. Workers’ Comp. Appeal Bd. (Extended Healthcare Servs., Inc.)
(Pa. Cmwlth., No. 649 C.D. 2020, filed Mar. 3, 2021), appeal denied, 263 A.3d 243 (Pa. 2021).
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Linda Pullin, :
Petitioner :
:
v. : No. 727 C.D. 2021
:
School District of Philadelphia :
(Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
AND NOW, this 25th day of February, 2022, the Order of the Workers’
Compensation Appeal Board, dated June 2, 2021, in the above-captioned matter is
AFFIRMED.
LORI A. DUMAS, Judge