S. Riley v. WCAB (Com. of PA) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susan Riley, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal Board :
(Commonwealth of Pennsylvania), : No. 675 C.D. 2019
Respondent : Argued: June 9, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION BY
JUDGE COVEY FILED: August 5, 2021
Susan Riley (Claimant) petitions this Court for review of the Workers’
Compensation (WC) Appeal Board’s (Board) May 6, 2019 order reversing the
Workers’ Compensation Judge’s (WCJ) decision that granted Claimant’s Petition to
Modify WC Benefits, Petition to Reinstate WC Benefits, and Petition to Review WC
Benefits (Review Petition) (collectively, Petitions). Essentially, Claimant presents
one issue for this Court’s review: whether Claimant is entitled to reinstatement of
benefits pursuant to Protz v. Workers’ Compensation Appeal Board (Derry Area
School District), 161 A.3d 827 (Pa. 2017) (Protz II). After review, this Court affirms.
On April 28, 2003, Claimant underwent an impairment rating evaluation
(IRE) provided for in Section 306(a.2) of the WC Act (Act),1 which resulted in an
1
Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 24, 1996, P.L. 350,
formerly 77 P.S. § 511.2, repealed by Section 1 of the Act of October 24, 2018, P.L. 714, effective
immediately. Section 306(a.2) of the Act provided that a claimant who reached maximum medical
impairment rating of less than 50%. Specifically, Claimant’s impairment rating was
21% under the fifth edition of the American Medical Association (AMA) Guides to
the Evaluation of Permanent Impairment (Guides). See Reproduced Record at 102a,
106a. Consequently, Claimant’s disability status changed from total to partial,
effective April 28, 2003, pursuant to a Notice of Change of WC Disability Status
(Notice of Change) dated May 5, 2003. On August 28, 2012, Claimant filed the
Review Petition alleging that the Notice of Change was invalid because Claimant had
not reached maximum medical improvement. The WCJ denied Claimant’s Review
Petition, and the Board affirmed. In its opinion, the Board noted that, on October 15,
2015, Claimant filed a Motion to Vacate the IRE based on its unconstitutionality
pursuant to Protz v. Workers’ Compensation Appeal Board (Derry Area School
District), 124 A.3d 406 (Pa. Cmwlth. 2015) (Protz I), aff’d, Protz II.2 The Board
denied Claimant’s Motion to Vacate. On appeal, this Court affirmed the Board’s
decision and held that Protz I did not apply because Claimant did not appeal from the
IRE within 60 days of the Notice of Change as required by Section 306(a.2)(2) of the
Act. See Riley v. Workers’ Comp. Appeal Bd. (Commonwealth of Pa.), 154 A.3d 396(Pa. Cmwlth. 2016). Claimant did not seek permission to appeal from this Court’s
decision.
On June 20, 2017, the Pennsylvania Supreme Court decided Protz II.3
On July 10, 2017, Claimant filed the instant Petitions alleging that her total disability
benefits should be reinstated as of her April 28, 2003 IRE date, based on Protz II.
The Commonwealth of Pennsylvania (Employer) asserts that Claimant’s Petitions are
time barred because they were filed more than three years after Claimant’s last WC
improvement and has an impairment due to the work injury of less than 50% under the most recent
edition of the American Medical Association Guides to the Evaluation of Permanent Impairment,
shall receive partial disability benefits for 500 weeks. See former 77 P.S. § 511.2(2).
2
The Protz I Court determined that Section 306(a.2) of the Act was unconstitutional in part.
3
The Protz II Court struck Section 306(a.2) of the Act in its entirety because the offending
language could not be severed from the rest of the Act.
2
payment. The parties stipulated that Claimant received her last WC payment on
November 25, 2012, when her 500 weeks of partial disability benefits expired. The
WCJ found that Claimant challenged her IRE when she filed her Motion to Vacate on
October 15, 2015. Because the Motion to Vacate was filed within three years of the
date of Claimant’s last WC payment, i.e., November 25, 2012, the WCJ found
Claimant’s Petitions were timely filed and reinstated Claimant’s total disability
benefits as of April 28, 2003. Employer appealed to the Board. On May 6, 2019, the
Board reversed the WCJ’s decision. Claimant appealed to this Court.4
Claimant declares that in Dana Holding Corp. v. Workers’
Compensation Appeal Board (Smuck), 232 A.3d 629 (Pa. 2020), the Pennsylvania
Supreme Court applied Protz II to cases currently pending on direct appeal in which
the constitutional challenge to the IRE had been properly raised and preserved.
However, Claimant emphasizes that the Dana Holding Court further held that
equitable balancing may warrant application of Protz II to other situations. Claimant
argues that she was injured on August 7, 2000, and remains disabled to the present
day, yet, because of an IRE that was later determined to be unconstitutional, she no
longer receives WC benefits. Claimant asserts that she is the type of person for
whom lifetime benefits were designed, and she lost that protection because the
General Assembly enacted unconstitutional legislation. Claimant posits that she has
repeatedly sought reinstatement of benefits and, if the equities do not favor her, then
they do not favor the entire class of workers for whom the Act was intended to
provide lifelong benefits.
4
“[This Court’s] review determines 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).
3
Employer rejoins that the portion of Dana Holding that Claimant relies
upon is dicta, and Section 413(a) of the Act, 77 P.S. § 772, is absolute. Employer
maintains that because Section 413(a) of the Act is a statute of repose, Claimant’s
claims have long since expired. Employer asserts that Claimant’s right to receive
WC benefits cannot be revived since she abandoned her prior cause of action when
she did not appeal and failed to pursue WC benefits thereafter.
Preliminarily, this Court acknowledges that Claimant had, in fact,
challenged her IRE on constitutional grounds within three years of her last WC
payment, and this Court ruled that, because Claimant did not file that challenge
within 60 days of her IRE, it was untimely pursuant to former Section 306(a.2)(2) of
the Act. See Riley. Claimant did not seek permission to appeal from this Court’s
decision. However, because the Protz II Court struck Section 306(a.2) of the Act in
its entirety, the 60-day requirement is no longer effective.
This Court has explained:
[P]ost-Protz II, those statutory time requirements [are] no
longer valid[. Although] we allowed [the] claimant [in
Thompson v. Workers’ Compensation Appeal Board
(Exelon Corp[.]), 168 A.3d 408 (Pa. Cmwlth. 2017),] to
raise the constitutionality of the IRE for the first time
outside of those time periods, [it was] while the litigation
involving the change in status was still pending.
Whitfield v. Workers’ Comp. Appeal Bd. (Tenet Health Sys. Hahnemann LLC), 188
A.3d 599, 611 (Pa. Cmwlth. 2018) (emphasis added).5 Given that this Court’s
decision in Riley was issued before Protz II was decided, and Riley did not seek
5
During oral argument, Claimant’s counsel argued that Whitfield was wrongly decided.
However, this Court has already “reject[ed] Claimant’s [] argument that Whitfield was wrongly
decided and should be overturned.” Weidenhammer v. Workers’ Comp. Appeal Bd. (Albright Coll.),
232 A.3d 986, 996 (Pa. Cmwlth. 2020).
4
permissive appeal from this Court’s decision, it does not affect this Court’s
determination herein.
Our order in [Riley] was final and appealable. See
Pa.R.A.P. 1112(b). . . . [Claimant] did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court
pursuant to [Pennsylvania Rule of Appellate Procedure]
1112. Having failed to exercise h[er] right to appeal,
[Claimant] is now precluded from challenging the propriety
of the Court’s [O]rder now. Thus, [Claimant] cannot revive
h[er] lapsed rights in this separate action.
Hill v. Dep’t of Corr., 64 A.3d 1159, 1166 (Pa. Cmwlth. 2013) (citation omitted).
This Court is also mindful of the fact that Section 306(a.2) of the Act
was declared unconstitutional because the General Assembly unlawfully delegated to
the AMA the legislative authority regarding the methodology to be used in grading
impairments, but failed to provide any intelligible standards to do so. See Protz I.
Specifically, the Pennsylvania Supreme Court determined that “the non-delegation
doctrine prohibits the General Assembly from incorporating, sight unseen,
subsequent modifications to such standards without also providing adequate criteria
to guide and restrain the exercise of the delegated authority.” Protz II, 161 A.3d at
838-39. Accordingly, the fact that Claimant’s IRE was deemed constitutionally
invalid does not suggest that she is any more or less disabled nor does she assert the
same.
To support her position, Claimant expressly relies on Dana Holding,
wherein our Supreme Court held:
[O]ur present decision stands for the principle that the
general rule in Pennsylvania will be that, at least where
prior judicial precedent isn’t overruled, a holding of [the
Pennsylvania Supreme] Court that a statute is
unconstitutional will generally be applied to cases pending
on direct appeal in which the constitutional challenge has
been raised and preserved. At the present point in time,
however, the [Supreme] Court is not of a mind to
5
exclude the possibility of equitable balancing in
extraordinary cases, particularly since no party [in] this
appeal has advocated any such position.
Id. at 648-49 (emphasis added). Here, Claimant is advocating that position.
However, Claimant does not present any standard upon which this Court can apply
such “equitable balancing.” Id. Rather, Claimant is asking this Court to ignore
Section 413(a) of the Act, and create a remedy for which there is no statutory basis.
Employer rests its argument on Section 413(a) of the Act, which
provides, in relevant part:
A [WCJ] . . . may, at any time, modify, reinstate, suspend,
or terminate a notice of compensation payable, an original
or supplemental agreement or an award of the [D]epartment
[of Labor and Industry (Department)] or its [WCJ], upon
petition filed by either party with the [D]epartment, upon
proof that the disability of an injured employe has
increased, decreased, recurred, or has temporarily or finally
ceased, or that the status of any dependent has changed.
Such modification, reinstatement, suspension, or
termination shall be made as of the date upon which it is
shown that the disability of the injured employe has
increased, decreased, recurred, or has temporarily or finally
ceased, or upon which it is shown that the status of any
dependent has changed: Provided, That, except in the case
of eye injuries, no notice of compensation payable,
agreement or award shall be reviewed, or modified, or
reinstated, unless a petition is filed with the
[D]epartment within three years after the date of the
most recent payment of compensation made prior to the
filing of such petition.
77 P.S. § 772 (emphasis added).
This Court has explained:
In Cozzone ex rel. Cozzone v. Workers’ Compensation
Appeal Board (PA Municipal/East Goshen Township), . . .
73 A.3d 526 ([Pa.] 2013), our Supreme Court held that the
[] time bar in Section 413(a) [of the Act] operates as a
statute of repose. Accordingly, once three years have
passed since “the most recent payment of compensation”
6
the claimant’s right to [WC] benefits is extinguished. Id.
at 536; see also Sloane v. Workers’ Comp[.] Appeal [Bd.]
(Children’s Hosp[.] of Phila[.]), 124 A.3d 778, 785 (Pa.
Cmwlth. 2015) (holding that because Section 413(a) of the
Act acts as a statute of repose, a claimant whose benefits
were suspended may seek reinstatement of total disability
payments within three years of the last payment of benefits
or the maximum 500 weeks allowed for partial disability,
whichever is later).
Weidenhammer v. Workers’ Comp. Appeal Bd. (Albright Coll.), 232 A.3d 986, 994
(Pa. Cmwlth. 2020) (emphasis added).
The Weidenhammer Court specifically held: “[T]he ruling in Protz II
was not intended to be given a fully retroactive effect[] without regard to the
statute of repose in Section 413(a) of the Act[.]” Weidenhammer, 232 A.3d at 994
(emphasis added). “Here, Claimant’s statutory right to total disability compensation
had been extinguished at the point in time that she filed her [] [P]etition[s]. To allow
[C]laimant to resuscitate her right to disability compensation would violate Section
413(a) of the Act[.]” Weidenhammer, 232 A.3d at 994. Accordingly, Protz II does
not apply to Claimant.
For all of the above reasons, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susan Riley, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal Board :
(Commonwealth of Pennsylvania), : No. 675 C.D. 2019
Respondent :
ORDER
AND NOW, this 5th day of August, 2021, the Workers’ Compensation
Appeal Board’s May 6, 2019 order is affirmed.
_________________________________
ANNE E. COVEY, Judge