R. Yeager v. City of Philadelphia (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Yeager, :
:
Petitioner :
:
v. : No. 709 C.D. 2021
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
:
Respondent :
City of Philadelphia and :
PMA Management Corp., :
:
Petitioners :
:
v. : No. 736 C.D. 2021
: No. 739 C.D. 2021
Robert Yeager (Workers’ : Submitted: January 28, 2022
Compensation Appeal Board), :
:
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: August 4, 2022
In these consolidated cases, Robert Yeager (Claimant) and the City of
Philadelphia and PMA Management Corporation (Employer) petition for review of
the June 4, 2021 order of the Workers’ Compensation Appeal Board (Board)
affirming the June 19, 2020 decision and order of the Workers’ Compensation Judge
(WCJ) that granted Claimant’s reinstatement petition and dismissed Employer’s
termination petition pursuant to the Workers’ Compensation Act (Act). 1 After
careful review, we affirm.
The facts as found by the WCJ are as follows. Claimant sustained a
work injury to his right knee on November 17, 2006, while he was working as an
asphalt raker for Employer’s maintenance department. Reproduced Record (R.R.)
at 17a. Employer accepted the injury as a “right knee sprain.” Id. On June 12, 2013,
Claimant underwent an Impairment Rating Evaluation (IRE) that found that
Claimant had a 1% impairment. Id. The parties stipulated to the modification of
Claimant’s benefits from temporary total disability to partial disability as of the date
of the IRE, which a WCJ granted in a decision dated October 9, 2013. Id. Neither
party appealed the modification. On September 14, 2017, Claimant filed a
reinstatement petition based on our Supreme Court’s decision in Protz v. Workers’
Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017)
(Protz II). Id. On January 31, 2018, a WCJ granted Claimant’s reinstatement
petition and Employer appealed to the Board, which remanded the matter to a WCJ
to permit Claimant to present evidence of his ongoing disability. Id. On March 25,
2019, Employer filed a termination petition alleging that Claimant was fully
recovered from his injury, based on the opinion of Dr. John Duda (Employer’s
expert). The remand on Claimant’s reinstatement petition and Employer’s
termination petition were consolidated and reassigned to the WCJ. Id.At the September 6, 2019 hearing before the WCJ, Claimant appeared
and testified about the circumstances of his 2006 work injury, an earlier work injury
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
2
to the same knee, and the ongoing treatment for his right knee which included knee
surgery in 2007. R.R. at 17a-18a. He testified that his right knee has never been
right since the 2006 injury, and he does not believe that he could go back to his
former job, which is physically demanding and would require him to walk at least
10 miles per day. Id. at 18a. Claimant further testified that he has constant pain in
his right knee, wears a knee brace, and walks with a limp. Id.
Claimant also presented the deposition testimony of Dr. Paul Sedacca
(Claimant’s expert). Claimant’s expert is board certified in internal medicine and is
a certified disability examiner. R.R. at 18a. Claimant’s expert reviewed Claimant’s
voluminous medical records and examined Claimant in 2019, where he observed
severe popping, grinding, and tenderness in Claimant’s right knee. Id. at 19a.
Claimant’s expert compared a magnetic resonance imaging (MRI) of Claimant’s
knee following surgery and an MRI from 2011, and concluded that, as of 2011,
Claimant had ongoing post-traumatic degenerative changes to his right knee. Id.
Claimant’s expert opined that Claimant was not fully recovered from his 2006
injury, and that his ongoing knee problems were related to post-traumatic arthritis
secondary to his right knee injury and subsequent surgery. Id. Claimant’s expert
opined that Claimant was capable of doing light duty or sedentary work, but not his
former job as an asphalt raker. Id.
Employer presented deposition testimony from Dr. Duda, who is a
board-certified orthopedic surgeon. R.R. at 19a. Employer’s expert testified that he
examined Claimant in 2019, but he did not review Claimant’s medical records before
examining him. Id. at 20a. Employer’s expert testified that Claimant had no
surgeries after his 2006 injury, which the WCJ observed “is not consistent with
Claimant’s actual history.” Id. Employer’s expert testified that Claimant did not
3
limp, had normal knee alignment, and no knee swelling. Id. He opined that Claimant
no longer had any evidence of a knee sprain or strain, was fully recovered, and could
return to his previous job without restrictions. Id. Employer’s expert testified that,
after he examined Claimant, he got the opportunity to review Claimant’s medical
records, but his opinions remained unchanged. Id. He further testified that he
observed no significant difference between Claimant’s 2006 and 2011 MRIs, and
that any problems with Claimant’s knee are “related to a longstanding wear and tear
type process” and “are not related to a singular event.” Id.
The WCJ found Claimant’s testimony to be credible and accepted his
testimony as fact, based on the WCJ’s observations of Claimant’s bearing and
demeanor. R.R. at 21a. The WCJ compared the opinions of Claimant’s expert and
Employer’s expert and described them as follows:
Both of these doctors agree that [] Claimant had
degenerative changes in his right knee before his 2006
injury. [Claimant’s expert] is of the opinion that []
Claimant’s degenerative changes were aggravated and
became worse after his injury and arthroscopic surgery.
[Employer’s expert], on the other hand, believes that []
Clamant suffered from a strain and sprain and that his
degenerative changes were not aggravated or made worse
by the work injury or by the passage of time. It is noted
by this Judge that [Employer’s expert] appears to have had
a poor understanding of Claimant’s history. In addition,
[Employer’s expert] asking us to believe that the
degenerative state of Claimant’s right knee did not worsen
is singularly not credible. [Claimant’s expert] is more
internally consistent and more accurate with respect to
Claimant’s history.
Id. Accordingly, the WCJ found Claimant’s expert to be more credible than
Employer’s expert, and rejected Employer’s expert’s testimony to the extent that it
was inconsistent with the testimony of Claimant’s expert. Id. The WCJ found as
4
fact that Claimant has never fully recovered from his work injury and he has never
been physically able to return to his pre-injury job as an asphalt spreader. Id.
Therefore, the WCJ granted Claimant’s reinstatement petition, concluding that
Claimant was eligible to have his benefits reinstated from partial to total disability,
and dismissed Employer’s termination petition. Id. at 21a-23a.
The WCJ considered Claimant’s argument that his benefits should be
reinstated as of the date his disability was modified in 2013 based on the 2013 IRE,
because Protz II should be applied retroactively. The WCJ disagreed, and concluded
as a matter of law that there is a presumption against retroactivity, neither statutory
nor case law dictated otherwise, and Claimant’s total disability benefits should be
reinstated as of September 14, 2017, the date he filed the reinstatement petition. R.R.
at 22a. Both Claimant and Employer appealed the WCJ’s decision to the Board,
which affirmed. Id. at 44a-55a. The Board concluded that the WCJ properly
dismissed Employer’s termination petition based on the WCJ’s finding that
Claimant’s expert was more credible than Employer’s expert, and that Employer
failed to carry its burden of proof. Id. at 53a-54a. The Board also concluded that
the WCJ properly granted Claimant’s reinstatement petition, based on the WCJ’s
findings that Claimant and Claimant’s expert were credible regarding Claimant’s
ongoing disability and inability to return to his pre-injury job. Id. at 51a-52a. The
Board also concluded that the WCJ properly granted Claimant’s reinstatement as of
the date that he filed his petition, September 14, 2017, citing Whitfield v. Workers’
Compensation Appeal Board (Tenet Health System Hahnemann LLC), 188 A.3d 5995
(Pa. Cmwlth. 2018). Id. at 53a. Both Claimant and Employer then petitioned this
Court for review.2, 3
As to the issue that Claimant raises in his appeal, he argues that his
temporary total disability benefits should be reinstated as of June 12, 2013, the date
that the IRE was performed, rather than as of September 14, 2017, the date that he
filed his reinstatement petition. Claimant argues that the Board erred by reinstating
his benefits as of 2017, because he has a vested property right to total disability
benefits from 2013, when the IRE was rendered unconstitutional by Protz II.
Claimant argues that the Remedies Clause in article I, section 11 of the Pennsylvania
Constitution4 precludes retroactive legislation that altered his vested right to total
disability benefits under the Act. Employer responds that the WCJ erred in awarding
2
Our Court consolidated the above-captioned cases and designated Claimant as the
Petitioner in an Order dated July 15, 2021. We denied Employer’s application for supersedeas in
an Order dated October 1, 2021.
3
Our scope of review in a workers’ compensation appeal is limited to determining whether
an error of law was committed, whether constitutional rights were violated, or whether necessary
findings of fact are supported by substantial evidence. Bloom v. Workmen’s Compensation Appeal
Board (Keystone Pretzel Bakery), 677 A.2d 1314, 1318 n.4 (Pa. Cmwlth. 1996). Substantial
evidence means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 612
A.2d 434, 436 (Pa. 1992).
4
Article I, section 11 states:
All courts shall be open; and every man for an injury done to him in
his lands, goods, person or reputation shall have remedy by due
course of law, and right and justice administered without sale, denial
or delay. Suits may be brought against the Commonwealth in such
manner, in such courts and in such cases as the Legislature may by
law direct.
Pa. Const. art. I, §11.
6
Claimant total disability benefits, but if not, reinstatement of benefits as of 2017,
when Claimant filed for reinstatement, is correct under Whitfield.
For context, we provide a brief review of the law applicable to IREs
under the Act. On September 18, 2015, our Court issued a decision in Protz v.
Workers’ Compensation Appeal Board (Derry Area School District), 124 A.3d 406(Pa. Cmwlth. 2015), aff’d in part, rev’d in part, 161 A.3d 827 (Pa. 2017) (Protz I).
In Protz I, we held that former Section 306(a.2) of the Act, which permitted IREs to
be conducted based on “the most recent edition” of the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides),
was an impermissible delegation of legislative authority in violation of the non-
delegation doctrine in the Pennsylvania Constitution.5 In Protz I, we remanded to
the Board to apply the Fourth Edition of the AMA Guides, which was the version of
the AMA Guides in effect at the time the IRE provisions were enacted. Protz I, 124
A.3d at 416-17. On June 20, 2017, our Supreme Court issued Protz II, in which it
agreed with our Court that the legislature unconstitutionally delegated its lawmaking
authority when it enacted former Section 306(a.2) of the Act. The Supreme Court
further determined, however, that the violative language of former Section 306(a.2)
of the Act could not be severed from the rest of that section, and it struck the entirety
of former Section 306(a.2) from the Act. Protz II, 161 A.3d at 841. Following Protz
II, the legislature enacted new provisions of the Act, which require IREs to be
performed using the AMA Guides, Sixth edition (second printing April 2009). See
Section 306(a.3) of the Act, 77 P.S. §511.3.
5
Article II, section 1 of the Pennsylvania Constitution states that “[t]he legislative power
of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and
a House of Representatives.” Pa. Const. art. II, §1.
7
This Court addressed the retroactive application of Protz II in Whitfield,
where we held that the claimant, whose disability status was rendered invalid by
Protz II, and who filed a reinstatement petition within three years of her last
compensation payment, was entitled to reinstatement as of the date that she filed her
reinstatement petition. Whitfield, 188 A.3d at 602. We also held that reinstatement
of the claimant’s benefits was governed by Section 413(a) of the Act,6 requiring
proof that the claimant’s disability continued. Id. A claimant need not produce
medical testimony to satisfy his burden of proof as his own credited testimony will
suffice. Id. at 615. This Court has repeatedly affirmed that a claimant’s
reinstatement of total disability benefits is effective as of the date that the
reinstatement petition was filed, and not as of the date of the now-unconstitutional
IRE under Protz I or Protz II. See White v. Workers’ Compensation Appeal Board
(City of Philadelphia), 237 A.3d 1225 (Pa. Cmwlth. 2020); Herb v. Workers’
Compensation Appeal Board (Pennsylvania State System of Higher Education) (Pa.
Cmwlth., Nos. 1187 C.D. 2019, 1192 C.D. 2019, 1200 C.D. 2019, and 1201 C.D.
2019, filed April 5, 2021);7 Campitelli v. Tyco International (US), Inc. (Workers’
Compensation Appeal Board) (Pa. Cmwlth., No. 300 C.D. 2021, filed October 14,
2021); Adams v. School District of Philadelphia (Workers’ Compensation Appeal
Board) (Pa. Cmwlth., No. 1060 C.D. 2020, filed March 30, 2022); and White v. City
of Philadelphia (Workers’ Compensation Appeal Board) (Pa. Cmwlth., No. 688
C.D. 2021, filed April 29, 2022).
6
77 P.S. §772.
7
See Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an
unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. []
Non-precedential decisions . . . may be cited for their persuasive value.”).
8
The Supreme Court further addressed retroactivity in Dana Holding
Corporation v. Workers’ Compensation Appeal Board (Smuck), 232 A.3d 629 (Pa.
2020), in which the Court considered how Protz II should be applied to a claimant
whose benefits were modified using a now-unconstitutional IRE, when the
underlying IRE was being actively litigated when Protz II was decided. Under those
specific circumstances, where the non-delegation claim was raised during ongoing
IRE litigation when Protz II was decided, the Supreme Court held that the claimant’s
benefits would be reinstated as of the date of the IRE.
Here, Claimant satisfied his burden for reinstatement, based on his own
testimony that he was totally disabled, as credited by the WCJ. Whitfield, 188 A.3d
at 602. Claimant’s benefits were modified by stipulation by a WCJ’s decision dated
October 9, 2013, based on the IRE performed on June 12, 2013. Neither party
appealed the modification. Claimant filed for reinstatement on September 14, 2017,
after Protz II was decided. Therefore, we are bound to follow Whitfield and its
progeny, and we hold that Claimant’s reinstatement was properly granted as of the
date that Claimant filed for reinstatement on September 14, 2017. Further, because
Claimant’s IRE was not in active litigation when Protz II was decided, Dana
Holding does not apply to alter the effective date of Claimant’s reinstatement.
As to the issue that Employer raises in its appeal, Employer argues that
the Board erred in denying its termination petition because the WCJ improperly
discounted the testimony of Employer’s expert. Employer argues that the WCJ erred
in crediting Claimant’s expert over Employer’s expert based on the qualifications of
Employer’s expert as a board certified orthopedic surgeon. Employer also argues
that the WCJ erred in expanding the definition of Claimant’s injury from a right knee
9
sprain to include aggravation of degenerative conditions of the right knee, when
Claimant did not file a review petition.
As we review the issue presented by Employer, we are mindful that in
workers’ compensation cases, “the WCJ is the ultimate fact-finder who must
determine credibility and evidentiary weight. In this role, the WCJ freely evaluates
the evidence offered and can accept or reject any witness’[s] testimony, in whole or
in part, including that of medical witnesses.” Davis v. Workers’ Compensation
Appeal Board (City of Philadelphia), 753 A.2d 905, 909 (Pa. Cmwlth. 2000). As
this Court further stated, “[w]hile this Court can and should consider the competency
and sufficiency of evidence presented before a WCJ, the WCJ’s assessment of
witness credibility is not subject to our review on appeal.” Id. Furthermore, in a
substantial evidence analysis where, as here, both parties presented evidence, “it
does not matter that there is evidence in the record which supports a factual finding
contrary to that made by the WCJ[;] rather, the pertinent inquiry is whether there is
any evidence which supports the WCJ’s factual finding.” Hoffmaster v. Workers’
Compensation Appeal Board (Senco Products), 721 A.2d 1152, 1155 (Pa. Cmwlth.
1998).
In a termination petition, an employer has the burden to prove that the
disability related to the work injury has ceased, through competent medical
evidence. Ciarolla v. Workers’ Compensation Appeal Board (Astrazeneca
Pharmaceuticals LP), 239 A.3d 204, 208-09 (Pa. Cmwlth. 2020). When an
employer seeks to terminate benefits, the employer has the burden to prove that the
current disability is not related to the accepted work injury. Gumro v. Workmen’s
Compensation Appeal Board, 626 A.2d 94, 97 (Pa. 1993).
10
Here, the WCJ credited the testimony of Claimant’s expert over
Employer’s expert because Claimant’s expert’s testimony was more internally
consistent and more accurate with respect to Claimant’s history. R.R. at 21a. The
WCJ specifically found that Employer’s expert’s opinion was not credible, when he
asked us to “believe that the degenerative state of Claimant’s right knee did not
worsen” as a result of his work injury, surgery, and the passage of time. Id. We may
not overrule the WCJ’s credibility determinations, and we discern no error in the
WCJ’s findings or conclusions that Employer failed to meet its burden to terminate
Claimant’s benefits. Contrary to Employer’s assertion, the WCJ did not improperly
expand the definition of Claimant’s accepted work injury, but rather found, based
on the credited testimony of Claimant’s expert, that the degenerative changes to
Claimant’s knee were aggravated by the accepted work injury and subsequent
surgery.
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Yeager, :
:
Petitioner :
:
v. : No. 709 C.D. 2021
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
:
Respondent :
City of Philadelphia and :
PMA Management Corp., :
:
Petitioners :
:
v. : No. 736 C.D. 2021
: No. 739 C.D. 2021
Robert Yeager (Workers’ :
Compensation Appeal Board), :
:
Respondent :
ORDER
AND NOW, this 4th day of August, 2022, the order of the Workers’
Compensation Appeal Board dated June 4, 2021, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge