W. Gillespie v. WCAB (Aker Philadelphia Shipyard) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William Gillespie, :
Petitioner :
:
v. : No. 1633 C.D. 2016
: Submitted: February 17, 2017
Workers’ Compensation Appeal :
Board (Aker Philadelphia Shipyard), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: May 17, 2017
William Gillespie (Claimant) petitions for review of an adjudication
of the Workers’ Compensation Appeal Board (Board) denying his petition to revise
his disability status from partial to full disability. In doing so, the Board reversed
the decision of the Workers’ Compensation Judge (WCJ), who upheld Claimant’s
constitutional challenge to his impairment rating evaluation (IRE), for the stated
reason that Claimant’s challenge to his IRE was untimely filed. Claimant filed his
challenge eight years after his employer notified him of a change in his workers’
compensation disability status. Concluding that Claimant’s petition was untimely,
we affirm the Board.
The facts are not disputed. Claimant was employed by Aker
Philadelphia Shipyard (Employer). On January 8, 2004, Claimant slipped and fell
on ice on the deck of a ship, which caused pain to his low back, right hip, right leg
and right shoulder. WCJ Decision, 9/20/2007, at 1; Reproduced Record at 17
(R.R. __). Claimant was diagnosed as suffering “from cauda equine syndrome
(multiple radiculopathies) as a result of a fall secondary to canal stenosis with
some pre-existing degenerative changes and herniated discs.” WCJ Decision,
9/20/2007, at 2; R.R. at 18. He sustained “nerve damage at all levels from L2 to
S1,” the worst of which “was at L4-5, L5-S1 and the ruptured disc at L3-4 on the
right.” Id. After a hearing, a WCJ granted Claimant’s claim petition.
On November 20, 2007, Dr. Richard J. Morris evaluated Claimant as
having a whole body impairment of 25 percent. In doing this evaluation, Dr.
Morris used the Fifth Edition of the American Medical Association “Guides to the
Evaluation of Permanent Impairment” (Fifth Edition AMA Guides). Based on Dr.
Morris’ IRE, Employer issued a “Notice of Change of Workers’ Compensation
Disability Status” to Claimant. Notably, Claimant continued to collect full
disability compensation, but the change in his status limited his compensation
period to 500 weeks. See Section 306(a.2)(3) of the Workers’ Compensation Act
(Act), 77 P.S. §511.2(3).1
Eight years later, in September 2015, Claimant filed a reinstatement
petition asserting that his IRE was a nullity because Dr. Morris used the Fifth
Edition AMA Guides to do his evaluation of Claimant. In support, Claimant relied
upon this Court’s decision in Protz v. Workers’ Compensation Appeal Board
(Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015), petition for
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708. Section
306(a.2)(3), added by the Act of June 24, 1996, P.L. 350, states:
Unless otherwise adjudicated or agreed to based upon a determination of earning
power under clause (b)(2), the amount of compensation shall not be affected as a
result of the change in disability status and shall remain the same. An insurer or
employe may, at any time prior to or during the five hundred-week period of
partial disability, show that the employe’s earning power has changed.
77 P.S. §511.2(3) (emphasis added).
2
allowance of appeal granted, 133 A.3d 733 (Pa. 2016). In Protz, we determined
that only the Fourth Edition of the AMA Guides had been authorized by the
legislature for guidance in an IRE. The legislature’s attempt to approve future
editions of the AMA Guides was unconstitutional because its legislative authority
may not be delegated to a private body, even one as august as the American
Medical Association. Employer opposed Claimant’s reinstatement petition.
Claimant’s petition was assigned to a WCJ. In support of his
reinstatement petition, Claimant submitted: (1) the WCJ’s September 20, 2007,
decision granting his claim petition; (2) the impairment rating determination face
sheet; (3) the IRE report; (4) a notice of change of workers’ compensation
disability status; (5) the contingent fee agreement between Claimant and his
attorney; and (6) his litigation expenses. Employer did not submit any evidence.
On February 23, 2016, the WCJ granted Claimant’s reinstatement
petition. Because Claimant’s impairment rating was made on the basis of the Fifth
Edition of the AMA Guides, the WCJ concluded that Claimant sustained his
burden of proving that the IRE was a nullity as was the change in his disability
status.
Employer appealed to the Board. Employer contended that the WCJ
did not issue a reasoned decision because the WCJ did not consider any of its
arguments, namely, that Protz did not apply to this case.
The Board concluded that the WCJ erred. The Board explained that a
claimant has 60 days within which to file a petition challenging the validity of a
change in his disability status as a result of an IRE. See Section 306(a.2)(2) of the
Act, 77 P.S. §511.2(2). After 60 days, a claimant may challenge his partial
disability status by presenting a new impairment rating evaluation that shows a full
3
body impairment of 50 percent or more. Johnson v. Workers’ Compensation
Appeal Board (Sealy Components Group), 982 A.2d 1253, 1258 (Pa. Cmwlth.
2009); Barrett v. Workers’ Compensation Appeal Board (Sunoco, Inc.), 987 A.2d
1280, 1288 (Pa. Cmwlth. 2010). Claimant did not file an appeal within 60 days of
the notice of change in his disability status, and he did not obtain a new
impairment rating. Accordingly, Claimant did not meet his burden under Section
302(a.2)(2) of the Act. The Board reversed the WCJ’s determination, and
Claimant petitioned for our review.
On appeal,2 Claimant raises two issues. First, Claimant contends that
the Board erred in dismissing his reinstatement petition as untimely. He contends
that the 60-day appeal period in Section 306(a.2) of the Act is not applicable in a
constitutional challenge to an IRE. Second, Claimant argues that the Board erred
in disregarding this Court’s decision in Protz.
The Act sets forth the procedures for impairment rating evaluations.
Section 306(a.2) states, in relevant part, as follows:
(1) When an employe has received total disability
compensation pursuant to clause (a) [77 P.S. §511] for a period
of one hundred four weeks, unless otherwise agreed to, the
employe shall be required to submit to a medical examination
which shall be requested by the insurer within sixty days upon
the expiration of the one hundred four weeks to determine the
degree of impairment due to the compensable injury, if any.
The degree of impairment shall be determined based upon an
evaluation by a physician who is licensed in this
Commonwealth, who is certified by an American Board of
Medical Specialties approved board or its osteopathic
2
We review Board adjudications to determine whether errors of law were made, whether
constitutional rights were violated, and whether necessary findings of fact are supported by
substantial evidence. Ward v. Workers’ Compensation Appeal Board (City of Philadelphia), 966
A.2d 1159, 1162 n. 4 (Pa. Cmwlth. 2009).
4
equivalent and who is active in clinical practice for at least
twenty hours per week, chosen by agreement of the parties, or
as designated by the department, pursuant to the most recent
edition of the American Medical Association “Guides to the
Evaluation of Permanent Impairment.”
(2) If such determination results in an impairment rating that
meets a threshold impairment rating that is equal to or greater
than fifty per centum impairment under the most recent edition
of the American Medical Association “Guides to the Evaluation
of Permanent Impairment,” the employe shall be presumed to
be totally disabled and shall continue to receive total disability
compensation benefits under clause (a). If such determination
results in an impairment rating less than fifty per centum
impairment under the most recent edition of the American
Medical Association “Guides to the Evaluation of Permanent
Impairment,” the employe shall then receive partial disability
benefits under clause (b) [77 P.S. §512]: Provided, however,
That no reduction shall be made until sixty days’ notice of
modification is given.
***
(4) An employe may appeal the change to partial disability at
any time during the five hundred-week period of partial
disability; Provided, That there is a determination that the
employe meets the threshold impairment rating that is equal to
or greater than fifty per centum impairment under the most
recent edition of the American Medical Association “Guides to
the Evaluation of Permanent Impairment.”
77 P.S. §511.2(1), (2), (4) (emphasis added). In Protz, this Court held that the
language, “pursuant to the most recent edition of the American Medical
Association “Guides to the Evaluation of Permanent Impairment[,]” represented
an “unconstitutional delegation of legislative authority” to a private entity because
it “proactively approved versions of the AMA Guides beyond the Fourth Edition
without review.” Protz, 124 A.3d at 416 (emphasis added). The Fourth Edition of
5
the AMA Guides was the only edition of the AMA Guides adopted expressly by
the legislature and, thus, the only edition that could be used.
In Johnson, 982 A.2d 1253, this Court explained the process for
challenging an IRE. Where an employer sends the claimant a notice that it intends
to change the claimant’s disability status as a result of an IRE, the claimant has 60
days to challenge the IRE. If the claimant does not challenge the change in status
within the 60 days, then Section 306(a.2)(4) of the Act becomes operative; it states
that the claimant may appeal the “change to partial disability at any time during the
five hundred-week period of partial disability; Provided, [t]hat there is a
determination that the employe meets the threshold impairment rating that is equal
to or greater than fifty percentum ....” 77 P.S. §511.2(4). See also Johnson, 982
A.2d at 1258.
The Board followed the statutory scheme. Claimant did not challenge
Dr. Morris’ IRE determination within 60 days. Although Claimant filed his
petition within 500 weeks, he did not offer evidence that he met the “threshold
impairment rating” of 50 percent. The Board did not err in reversing the WCJ.
Claimant contends that he is not challenging the accuracy of the IRE
or petitioning to change his disability status. Accordingly, he argues that the time
limitations in Section 306(a.2) of the Act are not applicable. Specifically, he
argues that, under this Court’s decision in Protz, his IRE is void ab initio. Indeed,
all IREs performed under the Fifth Edition are legal nullities. Accordingly, his
disability status never changed.
This Court considered and rejected Claimant’s argument in Riley v.
Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania), 154
A.3d 396 (Pa. Cmwlth. 2016). In Riley, the claimant was evaluated using the Fifth
6
Edition of the AMA Guides, instead of the Fourth Edition, and she did not appeal
the IRE within 60 days of the notice of change in her disability status. Rather, the
claimant waited nearly ten years to challenge the IRE determination. We held that
her challenge was untimely and that Protz did not invalidate the claimant’s 2003
IRE rating.
Likewise, here, Claimant’s petition did not satisfy the deadlines set
forth in Section 306(a.2) of the Act for challenging his IRE, on any ground. It is
too late to do so now. As we stated in Riley, “Protz does not give [a claimant] a
second chance to appeal [the] IRE.” Riley, 154 A.3d at 401. Riley is controlling.
Claimant points to Mazuruk v. Workers’ Compensation Appeal Board
(Gillin and Sons Contracting, Inc.), (Pa. Cmwlth., No. 1216 C.D. 2015, filed
October 14, 2016) (unreported).3 In Mazuruk, the employer filed a petition to
modify compensation benefits based upon an IRE showing that the claimant had an
impairment rating of 24 percent, using the Sixth Edition of the AMA Guides. The
WCJ granted the employer’s petition, and the Board affirmed the decision of the
WCJ. On appeal, the claimant argued that the IRE was not performed under the
most recent edition of the AMA Guides. We agreed and remanded the matter with
instructions that the WCJ permit the employer to have the claimant submit to a
new IRE to be performed in accordance with the Fourth Edition of the AMA
Guides. Mazuruk, slip op. at 12.
Mazuruk is distinguishable. First, the claimant in Mazuruk lodged a
timely challenge to his IRE determination; Claimant did not. Second, the claimant
3
Pursuant to Commonwealth Court Internal Operating Procedures §414(a), 210 Pa. Code
§69.414(a), an unreported opinion of this Court may be cited for its persuasive value and not as
binding precedent.
7
in Mazuruk had an appeal pending at the time this Court issued its decision in
Protz; Claimant did not.
In his second issue, Claimant contends that the Board capriciously
disregarded this Court’s decision in Protz. We reject this contention. As set forth
above, it does not matter what grounds are invoked to challenge an IRE. If not
raised within 60 days, it is too late. Accordingly, the Board had no duty to
consider Claimant’s constitutional challenge based on Protz.4
For the reasons discussed above, the order of the Board is affirmed.
______________________________________
MARY HANNAH LEAVITT, President Judge
4
Generally, a declaration that a provision of a statute is unconstitutional does not void every
decision ever made in accordance therewith; only parties still engaged in active litigation may
take advantage of a change. East Penn Township v. Troxell, (Pa. Cmwlth., Nos. 2490 C.D. 2009,
2491 C.D. 2009, 2492 C.D. 2009, 2493 C.D. 2009, filed January 5, 2011), slip op. at 4-5
(unreported) (citing Luke v. Cataldi, 883 A.2d 1114, 1119 n.12 (Pa. Cmwlth. 2005), reversed
and remanded on other grounds, 932 A.2d 45 (Pa. 2007)).
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William Gillespie, :
Petitioner :
:
v. : No. 1633 C.D. 2016
:
Workers’ Compensation Appeal :
Board (Aker Philadelphia Shipyard), :
Respondent :
ORDER
AND NOW, this 17th day of May, 2017, the order of the Workers’
Compensation Appeal Board, dated September 16, 2016, is hereby AFFIRMED.
______________________________________
MARY HANNAH LEAVITT, President Judge