R. Bainbridge v. Com. of PA (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronald Bainbridge, :
:
Petitioner :
:
v. : No. 3 C.D. 2022
: Submitted: July 22, 2022
Commonwealth of Pennsylvania :
(Workers’ Compensation :
Appeal Board), :
:
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: February 3, 2023
Ronald Bainbridge (Claimant) petitions for review of the Opinion and
Order of the Workers’ Compensation (WC) Appeal Board (Board) affirming the
Decision and Order of a workers’ compensation judge (WCJ), which granted the
Petition to Modify Compensation Benefits (Modification Petition) filed by the
Commonwealth of Pennsylvania (Employer) pursuant to the provisions of the
Workers’ Compensation Act (WC Act).1 We affirm.
On January 18, 2013, Claimant suffered a work-related cervical and left
shoulder sprain relating to a resident assault during his employment at the North
1
Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-
1041.4, 2501-2710.
Central Secure Treatment Unit facility. On February 26, 2013, Employer issued a
Notice of Temporary Compensation Payable (NTCP) acknowledging Claimant’s
work-related injury and establishing an average weekly wage of $772.30, with a
weekly compensation rate of $514.87. The NTCP also noted that Claimant was
receiving salary continuation through Act 534 benefits2 in lieu of WC benefits. The
NTCP converted to a Notice of Compensation Payable (NCP) by operation of law.
2
As this Court has recently explained:
Act 534, sometimes referred to as Act 632, refers to Section 1 of the
Act of December 8, 1959, P.L. 1718, [No. 534,] as amended, 61 P.S.
§951. The history of Act 534 reveals:
The Act, as originally enacted, covered only
employees of state penal and correctional institutions
and was commonly referred to as Act 632. In 1961,
the Legislature amended Section 1 of Act 632 and
extended benefits to employees of state mental
hospitals, youth development centers and county
boards of assistance, and employees of the
Department [of Human Services] who have been
assigned to or have volunteered to join the
firefighting force of the Department’s institutions.
The Act, as amended in 1961, is commonly known
as Act 534. Act 534 was repealed by Section 11(d)
of the Act of August 11, 2009, P.L. 147, effective
October 13, 2009, to the extent that it covered
employees of state correctional institutions. Benefits
of those employees are now provided in Section 1101
of the Prisons and Parole Code, 61 Pa. C.S. § 1101.
McWreath v. Department of Public Welfare, 26 A.3d 1251, 1254 n.2
(Pa. Cmwlth. 2011). Section 1 of Act 534 provides, in relevant part:
[A]ny employe of a State mental hospital or Youth
Development Center under the Department of
[Human Services], who is injured during the course
of his employment by an act of . . . any person
(Footnote continued on next page…)
2
On January 10, 2017, a WCJ issued a Decision and Order granting
Claimant’s Petition to Review to amend the description of his work-related injury in
the NCP. As a result, Claimant’s injury was amended to include a herniated disc at
C6-7 and a bulging disc at C5-6 precipitating surgery to Claimant’s neck. The injury
was also amended to include a traumatic brain injury in the nature of a mild injury
confined in such institution or by any person who has
been committed to such institution by any court of
the Commonwealth of Pennsylvania or by any
provision of the [Mental Health Procedures Act, Act
of July 9, 1976, P.L. 814, as amended, 50 P.S.
§§7101-7503 (“Mental Health Act”)] . . . shall be
paid, by the Commonwealth of Pennsylvania, his full
salary, until the disability arising therefrom no longer
prevents his return as an employe of such department
. . . or institution at a salary equal to that earned by
him at the time of his injury.
All medical and hospital expenses incurred in
connection with any such injury shall be paid by the
Commonwealth of Pennsylvania until the disability
arising from such injury no longer prevents his return
as an employe of such department . . . or institution
at a salary equal to that earned by him at the time of
his injury.
During the time salary for such disability shall be
paid by the Commonwealth of Pennsylvania any
workmen’s compensation received or collected for
such period shall be turned over to the
Commonwealth and paid into the General Fund, and
if such payment shall not be so made, the amount so
due the Commonwealth shall be deducted from any
salary then or thereafter becoming due and owing[.]
61 P.S. §951.
Lynch v. Commonwealth (Workers’ Compensation Appeal Board), 275 A.3d 1130, 1132 n.2 (Pa.
Cmwlth. 2022).
3
to the left hemisphere of his brain with mild neurocognitive impairment in the nature
of mild to moderate deficits of attention and concentration and generalized cognitive
inefficiency. The WCJ’s Decision and Order also awarded specific loss benefits.
On November 13, 2020, Employer filed the Modification Petition
alleging that Claimant has a whole-person impairment of 16% under the Sixth
Edition of the American Medical Association (AMA) Guides to the Evaluation of
Permanent Impairment (Guides), which is less than the 35% threshold under Act
111,3 after attending an Impairment Rating Evaluation (IRE) by William Prebola,
M.D. See Certified Record (CR) Docket Entry No. 2. A hearing on Employer’s
Modification Petition ensued.
At the hearing, Employer submitted Dr. Prebola’s November 4, 2020
IRE report into evidence. See CR Docket Entry No. 13. The IRE report states that
Dr. Prebola performed the IRE under the Sixth Edition of the AMA Guides, and, in
his opinion, Claimant had reached maximum medical improvement at the time of
3
“Act 111” refers to the Act of October 24, 2018, P.L. 714, No. 111, which added Section
306(a.3) to the WC Act, 77 P.S. §511.3. As we have also recently explained:
Act 111 repealed Section 306(a.2) of the Act, added by the Act of
June 24, 1996, P.L. 350, formerly 77 P.S. §511.2, and added Section
306(a.3) of the WC Act. Section 306(a.3)(1) of the WC Act
provides that a claimant who has received total disability benefits
for 104 weeks must submit to an IRE conducted pursuant to the
[AMA] “Guides to the Evaluation of Permanent Impairment,” Sixth
Edition (second printing April 2009) (Sixth Edition of the AMA
Guides), which calculates the claimant’s degree of impairment due
to the compensable injury. 77 P.S. §511.3(1). If a claimant’s whole-
body impairment rating is less than 35%, the claimant shall receive
partial disability benefits pursuant to Section 306(a.3)(2) of the WC
Act, 77 P.S. §511.3(2)
Lynch, 275 A.3d at 1132 n.1.
4
the IRE. See id. Dr. Prebola also determined that Claimant has a 16% whole-person
impairment. See id.
On April 16, 2021, the WCJ issued a Decision and Order in which she
found: “Dr. Prebola’s opinions are credible, logical, internally consistent, and
persuasive. They were supported by his findings during the examination and were
not refuted as Claimant did not testify or offer any medical evidence.” CR Docket
Entry No. 4 at 4. The WCJ also reached the following relevant conclusions:
2. On this [Modification Petition] based upon an IRE, []
Employer bears the burden of proving that Claimant has
reached maximum medical improvement and has a
whole[-]person impairment rating of less than 35% under
the [Sixth Edition of the AMA Guides]. Herein, []
Employer has carried the burden of proof.
3. Dr. Prebola’s opinions are competent and unequivocal
medical evidence.
4. The [WCJ] accepts and adopts Dr. Prebola’s opinions
that, at the time of the [IRE], Claimant had reached
maximum medical improvement and had a whole[-]person
impairment rating of 16%. Those opinions were
unrefuted.
Id. at 4-5. Accordingly, the WCJ issued an order granting Employer’s Modification
Petition, and modifying Claimant’s benefit status from total disability to partial
disability effective November 4, 2020. Id. at 6.
Claimant appealed the WCJ’s Decision and Order to the Board, arguing
that the WCJ erred in granting the Modification Petition because he had not received
104 weeks of total disability benefits at the time of the IRE as required by the WC
Act. See CR Docket Entry No. 7 at 2. Specifically, Claimant asserted that he did
not receive total disability WC benefits for the required 104 weeks because he had
received Act 534 benefits for that period of time. See id.
5
The Board rejected Claimant’s assertion stating, in pertinent part:
Act 534 benefits are intended to supplement, not
replace [WC] benefits. The receipt of benefits under Act
534 and the [WC] Act are not mutually exclusive as Act
534 provides that an injured worker may receive [WC]
benefits simultaneously with Act 534 benefits.
[Employer] is, however, subrogated to [C]laimant’s right
for any [WC benefit] payments made and is entitled to
deduct payments made directly to [C]laimant from future
salary or benefits paid under Act 534. Neither the [WC]
Act nor Act 534 prevents employers from initiating
proceedings under the [WC] Act before, after, or
simultaneously with Act 534 proceedings. [Employer]
acknowledged Claimant’s work injury and entitlement to
[WC] benefits . . . . The fact that [Employer] may be
subrogated to Claimant’s right to [WC benefit] payments
does not mean that he has not received [WC] benefits for
purposes of the [WC] Act’s provisions.
CR Docket Entry No. 7 at 4-5 (citations omitted). Accordingly, the Board issued an
order affirming the WCJ’s Decision and Order. Id. at 6.
Claimant then filed the instant appeal of the Board’s order4 again
arguing that he did not receive the required 104 weeks of total disability WC benefits
under the WC Act for Employer to invoke the IRE modification provisions because
he had received Act 534 benefits for that period of time. However, we have recently
rejected Claimant’s assertion, and specifically held that his receipt of Act 534
benefits constitutes the receipt of total disability WC benefits under Section 306(a)5
and (a.3) of the WC Act, thereby triggering the IRE process under which Employer
4
“Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated. As to questions of law, our standard of review is de novo and our scope of review
is plenary.” Lynch, 275 A.3d at 1135 n.7 (citations omitted).
5
77 P.S. §511.
6
could seek the modification of his WC benefits. See Lynch v. Commonwealth
(Workers’ Compensation Appeal Board), 275 A.3d 1130, 1136-38 (Pa. Cmwlth.
2022). As a result, we will affirm the Board’s order on the basis of our analysis and
holding in Lynch. See id.Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronald Bainbridge, :
:
Petitioner :
:
v. : No. 3 C.D. 2022
:
Commonwealth of Pennsylvania :
(Workers’ Compensation :
Appeal Board), :
:
Respondent :
ORDER
AND NOW, this 3rd day of February, 2023, the December 22, 2021
order of the Workers’ Compensation Appeal Board is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge