J. Hutchinson v. Annville Twp. (WCAB) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Hutchinson, :
Petitioner :
:
v. :
:
Annville Township (Workers’ :
Compensation Appeal Board), : Nos. 16 & 17 C.D. 2021
Respondent : Submitted: May 7, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: August 9, 2021
John Hutchinson (Claimant) petitions for review from two orders of the
Workers’ Compensation Appeal Board (Board). The Board affirmed two orders of
a workers’ compensation judge (WCJ) reinstating Claimant’s temporary total
disability benefits as of March 2017 and granting Employer’s modification petition
as of January 2019. The two matters have been consolidated in this Court. Upon
review, we affirm the Board’s orders.
I. Background
In June 2006, while employed by Annville Township (Employer),
Claimant sustained a work-related fracture of his leg. Certified Record (C.R.) A20-
0173 Item 5 at 3.1 He received workers’ compensation benefits for temporary total
disability. Id. In June 2009, at Employer’s behest, Claimant underwent an
impairment rating examination (IRE). Id. The examination resulted in a whole
person disability rating of less than 50%2 based on the impairment rating guidelines
provided in the Sixth Edition of the American Medical Association (AMA) Guides
to the Evaluation of Permanent Impairment (Guides).3 Id. Based on the outcome of
the IRE, Employer filed a petition to modify Claimant’s status from temporary total
disability to partial disability (2009 modification petition).4 Id. In February 2010, a
WCJ granted the 2009 modification petition, effective as of the June 2009 date of
the IRE (2009 modification). Id. Claimant did not appeal the 2009 modification.
Id.
In September 2015, this Court decided Protz v. Workers’ Compensation
Appeal Board (Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015)
(Protz I), aff’d, 161 A.3d 827 (Pa. 2017) (Protz II). In Protz I, we held that former
Section 306(a.2) of the Workers’ Compensation Act, formerly 77 P.S. § 511.2,
1
Because both dockets before the WCJ, A20-0173 and A20-0175, contain essentially the
same information, only A20-0173 is cited here, for conciseness, except as otherwise indicated.
2
Under former Section 306(a.2) of the Workers’ Compensation Act, Act of June 2, 1915,
P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710, temporary total disability status could be
modified to partial disability if the claimant had a disability rating of less than 50%. Former 77
P.S. § 511.2(2) was added by the Act of June 24, 1996, P.L 350, and repealed by the Act of October
24, 2018, P.L. 714.
3
The record does not indicate whether the June 2009 IRE was performed pursuant to the
Sixth Edition of the Guides, published in 2007, or the Sixth Edition, second printing, published in
2009.
4
A modification to partial disability status does not reduce the amount of weekly wage
benefits paid to a claimant, but it limits future payments to 500 weeks from the modific ation
date. Whitfield v. Workers’ Comp. Appeal Bd. (Tenet Health Sys. Hahnemann LLC), 188 A.3d
599, 613 (Pa. Cmwlth. 2018) (citing Section 306(b)(1) of the Workers’ Compensation Act, 77 P.S.
§ 512(1)).
2
impermissibly delegated legislative authority by providing that IREs were to be
conducted pursuant to the most recent edition of the Guides. Protz I, 124 A.3d at
416. Rather than declare the entire provision invalid, however, this Court severed
the language relating to the most recent edition of the Guides and concluded that
future IREs should be conducted pursuant to the Fourth Edition, which was in effect
at the time the legislature enacted former Section 306(a.2). Id.In June 2017, the Pennsylvania Supreme Court issued its decision in
Protz II. The Supreme Court upheld this Court’s conclusion that the legislature
improperly delegated its lawmaking authority to the AMA by providing for
reference to the most recent version of the Guides. Protz II, 161 A.3d at 841.
However, the Supreme Court reversed this Court’s ruling that the Fourth Edition of
the Guides should apply. Protz II, 161 A.3d at 841. Concluding that the defective
provision could not reasonably be severed, our Supreme Court held former Section
306(a.2) was invalid in its entirety. Protz II, 161 A.3d at 841.
In response to our Supreme Court’s decision in Protz II, the legislature
enacted Act 111,5 adding Section 306(a.3)(1) to the Workers’ Compensation Act.
Under Act 111, IREs shall be conducted pursuant to the Sixth Edition of the Guides,
second printing (2009). 77 P.S. § 511.3(1).6
Meanwhile, in March 2017, while the appeal of Protz I was pending in
our Supreme Court, Claimant filed a reinstatement petition seeking to change his
disability status from partial back to total disability based on the holding of Protz I.
C.R. A20-0173 Item 5 at 4. In November 2017, a WCJ granted Claimant’s
5
Act of October 24, 2018, P.L. 714, No. 111 (Act 111).
6
Act 111 also amended the Workers’ Compensation Act to require a whole person
disability rating of less than 35% before a claimant’s temporary total disability status may be
modified to partial disability. 77 P.S. § 511.3(2).
3
reinstatement petition retroactive to the date of the 2009 modification. C.R. A20-
0173 Item 10 at 2. Employer appealed the WCJ’s reinstatement order to the Board.
In February 2019, the Board issued an order remanding the matter to the WCJ to
determine whether Claimant could show he was still disabled as a result of his work
injury. C.R. A20-0173 Item 5 at 5 (citing Protz II; Whitfield v. Workers’ Comp.
Appeal Bd. (Tenet Health Sys. Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth.
2018)).
While his reinstatement petition was pending, Claimant underwent
another IRE in January 2019, again at Employer’s behest, in conformity with the
Sixth Edition of the Guides, second printing, as required by Act 111. C.R. A20-
0173 Item 17. That examination yielded an impairment rating of 3%. C.R. A20-
0173 Item 5 at 7; C.R. A20-0173 Item 17 at 3. Employer filed a new modification
petition (2019 modification petition), which was consolidated with Claimant’s
reinstatement petition. C.R. A20-0173 Item 2.
In February 2020, the WCJ issued two identical orders granting
Claimant’s reinstatement petition effective as of the date Claimant filed the
reinstatement petition in March 2017 and granting Employer’s 2019 modification
petition effective as of the date of the new IRE in January 2019 (2019 modification).
C.R. A20-0173 Item 5 at 8; C.R. A20-0175 Item 5 at 7. Both parties appealed to the
Board. C.R. A20-0173 Items 6 & 8; C.R. A20-0175 Items 6 & 8.
Claimant argued that the January 2019 IRE was premature because it
preceded a decision on the reinstatement petition regarding his disability status. C.R.
Item 6 at 2. Additionally, Claimant contended that the IRE was performed under an
unconstitutional statute, Act 111, and therefore could not support the 2019
modification of his status. Id. Claimant posited that Act 111 was unconstitutional
4
because it (1) delegated legislative authority to a private entity, (2) applied to injuries
predating its enactment, and (3) applied improper credit to employers toward the
waiting time required before requesting an IRE.7 Id.Employer argued the WCJ erred in applying Protz II to Claimant’s
reinstatement petition because Claimant did not appeal the 2009 modification and
therefore failed to preserve any challenge to the constitutionality of former Section
306(a.2). C.R. A20-0173 Item 10 at 4. Employer further asserted that Protz II could
not apply retroactively, so Claimant’s benefits could not be reinstated as of a date
preceding the Supreme Court’s decision in Protz II. C.R. A20-0173 Item 10 at 4.
In addition, Employer contended that Whitfield, in which this Court held that a
claimant could seek reinstatement within three years after the most recent payment
of workers’ compensation benefits, did not apply to this case to render Claimant’s
reinstatement petition timely. C.R. A20-0173 Item 10 at 4.
In December 2020, the Board affirmed the WCJ’s orders. C.R. A20-
0173 Item 10. Regarding Claimant’s reinstatement petition, the Board concluded
this case is governed by Whitfield and White v. Workers’ Compensation Appeal
Board (City of Philadelphia), 237 A.3d 1225 (Pa. Cmwlth. 2020). Because Claimant
was still receiving partial disability benefits at the time he filed the reinstatement
petition, that petition was timely, but reinstatement was effective only as of the date
of the reinstatement petition, not as of the 2009 modification. C.R. A20-0173 Item
10 at 1-13; see White, 237 A.3d at 1230-31; Whitfield, 188 A.3d at 617. Regarding
Employer’s 2019 modification petition, the Board employed the analytical
7
Under Section 306(a.3)(1) of the Workers’ Compensation Act, an employer may not
demand an IRE until after the claimant has received 104 weeks of temporary total disability
compensation. 77 P.S. § 511.3(1). Pursuant to Section 3(2) of Act 111, an employer/insurer
receives credit towards this 104-week waiting period for any weeks of temporary total disability
benefits that were paid prior to Act 111’s enactment. 77 P.S. § 511.3; see White v. Workers’ Comp.
Appeal Bd. (City of Phila.), 237 A.3d 1225, 1230 (Pa. Cmwlth. 2020).
5
framework set forth in Bechtel Power Corp. v. Workmen’s Compensation Appeal
Board (Miller), 452 A.2d 286 (Pa. Cmwlth. 1982), and concluded the modification
petition was not premature. C.R. A20-0173 Item 10 at 8-10. Citing Pennsylvania
AFL-CIO v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth. 2019), aff’d per curiam
(Pa., No. 88 MAP 2019, filed Aug. 18, 2020), the Board also determined that Act
111 does not improperly delegate legislative authority to the AMA. C.R. A20-0173
Item 10 at 10.
Claimant timely petitioned for further review of the Board’s orders.8
The petitions for review have been consolidated in this Court.
II. Discussion
A. Applicable Reinstatement Date
Claimant first asserts that he is entitled to reinstatement of his total
disability status as of the date of the 2009 modification, rather than the date of his
reinstatement petition. We discern no merit in this assertion.
In Whitfield, the claimant sought reinstatement of total disability status
after our decision in Protz I, arguing, like Claimant here, that because the
modification from total to partial disability was based on an IRE performed under
an invalid statute, total disability status should be reinstated. Whitfield, 188 A.3d at
612. This Court concluded that if the claimant demonstrated entitlement to total
disability status, reinstatement was proper as of the date of the reinstatement petition,
8
“Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact were supported by substantial evidence, and whether constitutional
rights were violated.” Gieniec v. Workers’ Comp. Appeal Bd. (Palmerton Hosp. & HM Cas. Ins.
Co.), 130 A.3d 154, 159-60 (Pa. Cmwlth. 2015) (citing Dep’t of Transp. v. Workers’ Comp. Appeal
Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011)).
6
and such reinstatement did not mean that Protz I was being applied retroactively.
Whitfield, 188 A.3d at 617.
Subsequently, in White, this Court specifically addressed the proper
reinstatement date under circumstances similar to those in this case. The claimant
in White filed a reinstatement petition after our decision in Protz I and sought
reinstatement as of the original modification date, but the Board concluded
reinstatement was appropriate only from the date of the claimant’s reinstatement
petition. White, 237 A.3d at 1230-31. We affirmed, explaining that because the
claimant had not appealed the original modification, she was entitled to
reinstatement only as of the date of her reinstatement petition, not the date her status
had been modified from total to partial disability. Id. at 1231.
Despite Claimant’s assertion to the contrary, White is squarely
applicable here and governs our disposition of the issue in this case. Like the
claimant in White, Claimant here did not appeal the original modification of his
disability status from total to partial disability. Like the claimant in White, after this
Court’s decision in Protz I, Claimant here filed a reinstatement petition asserting that
he was entitled to reinstatement as of the original modification date because the IRE
that formed the basis for modification was conducted under an invalid statute. This
is the precise argument we rejected in White, 237 A.3d at 1231, and we likewise
reject it here. In accordance with our binding precedent in White, we conclude that
Claimant was entitled to reinstatement only as of the date of his reinstatement
petition in March 2017, not as of the 2009 modification date.
7
B. Seeking Modification While Reinstatement Petition Was Pending
Next, Claimant challenges the propriety of Employer’s 2019
modification petition, contending that Employer could not seek modification while
Claimant’s reinstatement petition was still pending. We disagree.
Claimant’s argument is based on the principle that “matters pending on
appeal cannot be revisited by the filing of new, similar petitions.” Gieniec v.
Workers’ Comp. Appeal Bd. (Palmerton Hosp. & HM Cas. Ins. Co.), 130 A.3d 154,
158 (Pa. Cmwlth. 2015) (citing Carson/Kent Joint Venture v. Workmen’s Comp.
Appeal Bd. (Scafidi), 663 A.2d 828 (Pa. Cmwlth. 1995); Bechtel Power; Grasha v.
Workmen’s Comp. Appeal Bd. (Sch. Dist. of Pittsburgh), 413 A.2d 771 (Pa. Cmwlth.
1980)) (additional citations omitted). As we explained in Bechtel Power, the intent
of that rule is to avoid “the unnecessary and counterproductive relitigation of
identical issues.” Bechtel Power, 452 A.2d at 288 (citing Grasha). It likewise
precludes simultaneous separate litigation of inconsistent positions. Gieniec, 130
A.3d at 158. For example, “the Bechtel [Power] rule prohibits an employer from
attacking a finding of disability, on the one hand by alleging that no disability
occurred and on the other hand by alleging that the disability ceased.” Carson/Kent,
663 A.2d at 830.
However, the rule does not apply where the issues in the two petitions
are not identical. For example, in Sharkey v. Workers’ Compensation Appeal Board
(Tempo, Inc.), 739 A.2d 641 (Pa. Cmwlth. 1999), the employer filed suspension and
termination petitions while its appeal was pending before the Board concerning
which of two employers was responsible for payment of the claimant’s medical bills.
Id. at 641-42. The claimant argued that the employer could not pursue suspension
or termination while still denying liability for payment of benefits. Id. at 642-43.
8
This Court disagreed because the issues in the two proceedings were not identical:
one proceeding challenged the employer’s responsibility to pay medical expenses,
but did not challenge the work-related injury itself, while the other proceedings
questioned the claimant’s ongoing disability and her exercise of good faith in
pursuing job referrals within her physical capabilities. Id. at 643.
Here, as in Sharkey, the issues raised in Claimant’s reinstatement
petition and Employer’s 2019 modification petition are disparate. The reinstatement
petition involves the legal issue of the effect of Protz I on the appropriate date of
reinstatement in light of the subsequent invalidation of the statute under which the
IRE supporting the 2009 modification was performed. By contrast, the 2019
modification petition raises the factual question of Claimant’s degree of disability
remaining in 2019, as measured in a new IRE performed under the current statute.
Thus, Employer’s positions in the two proceedings are not competing or conflicting
as Claimant suggests. See Br. of Claimant at 21. Because the issues in the two
proceedings are not identical, the WCJ and the Board did not err in allowing
Employer to pursue the 2019 modification petition while Claimant’s reinstatement
petition relating to the 2009 modification was pending.
C. Constitutionality of Act 111
1. Delegation of Legislative Authority
Claimant next asserts that Act 111 is unconstitutional because its
provision for IREs pursuant to the Sixth Edition, second printing (2009), of the
Guides improperly delegates legislative authority to the AMA, a private entity. This
Court has previously rejected this argument and has expressly held that Act 111 did
not constitute an improper delegation of legislative authority. AFL-CIO, 219 A.3d
9
at 314-15; see also Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada), 238 A.3d
551, 557 (Pa. Cmwlth. 2020) (by specifying the edition of the Guides to be applied
in performing IREs, the legislature cured the unconstitutional delegation that arose
from the former language providing for application of the most recent edition).
Claimant’s assertion to the contrary is without merit. As we explained in AFL-CIO,
although the legislature may not delegate the future enactment of standards, it may
adopt as its own an existing set of standards, and doing so in Act 111 did not
unconstitutionally delegate its legislative authority.9 AFL-CIO, 219 A.3d at 314-15
(quoting Protz II, 161 A.3d at 838-39, and citing Pennsylvanians Against Gambling
Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 418 (Pa. 2005)).
2. Application to Predating Injuries and IRE Waiting Period
Citing the prohibitions against ex post facto laws and impairment of
contracts in Article I, Section 17 of the Pennsylvania Constitution, Pa. Const. art. I,
§ 17, and Article I, Section 10 of the United States Constitution, U.S. Const. art. I,
§ 10, Claimant argues that Act 111 is improperly retroactive because it applies to
injuries predating its enactment. Claimant also asserts that Act 111 provides
improper credit to employers toward the 104-week waiting time required before
requesting an IRE and, as such, improperly allowed Employer here to seek a new
IRE before the expiration of 104 weeks of temporary total disability benefits
following reinstatement. We reject Claimant’s arguments.
9
In this regard, Claimant misapprehends this Court’s analysis and holding in Protz v.
Workers’ Compensation Appeal Board (Derry Area School District), 124 A.3d 406 (Pa. Cmwlth.
2015) (Protz I), aff’d, 161 A.3d 827 (Pa. 2017). The flaw in former Section 306(a.2) was that,
unlike the replacement provision of Act 111, it did not simply adopt a set of existing standards;
rather, by mandating use of the most recent version of the Guides, it allowed the AMA to alter the
standards at will without any legislative oversight. See Protz I, 124 A.3d at 416.
10
This Court previously considered and rejected similar contentions in
Pierson v. Workers’ Compensation Appeal Board (Consolidated Pennsylvania Coal
Co.) ___ A.3d ___ (Pa. Cmwlth. No. 423 C.D. 2020, filed Feb. 9, 2021), 2021 Pa.
Commw. LEXIS 386.10 There, as here, the claimant suggested that applying Act 111
to injuries predating its enactment would impair his vested rights. Id. at ___, slip
op. at 8-9. In rejecting the claimant’s vested rights argument, this Court explained:
While [the c]laimant, here, argues that he has a
[vested] right to benefits as calculated at the time of injury,
there are reasonable expectations under the [Workers’
Compensation] Act that benefits may change. We
acknowledge that a claimant retains a certain right to
benefits until such time as he is found to be ineligible for
them. However, claimants, such as the one in the matter
before us, did not automatically lose anything by the
enactment of Act 111. Act 111 simply provided
employers with the means to change a claimant’s
disability status from total to partial by providing the
requisite medical evidence that the claimant has a whole
body impairment of less than 35%, after receiving 104
weeks of [temporary total disability] benefits.
As this Court opined in Rose Corporation, the
General Assembly made it clear in Act 111 that weeks of
[temporary total disability] and partial disability paid by
an employer/insurer prior to the enactment of Act 111
count as credit against an employer’s new obligations
under Act 111.
....
In Rose Corporation, we also added: “Through the
use of very careful and specific language, the General
Assembly provided employers/insurers with credit for the
10
On April 26, 2021, this Court entered an order redesignating its previously unreported
memorandum opinion in this case as a published opinion. This decision is therefore precedential
authority, although the Atlantic Reporter pagination is not yet available.
11
weeks of compensation, whether total or partial in nature,
previously paid.” Rose Corp., 238 A.3d at 562.
[A]s we made clear in Rose Corporation, the 104-
week and credit provisions of Act 111 were explicitly
given retroactive effect by the clear language used by the
General Assembly.
[The c]laimant, herein, argues that the General
Assembly cannot take away his “vested rights” and that it
did not explicitly express an intent to apply the provisions
of Act 111 in any sort of a retroactive fashion. As we
noted above, [the c]laimant’s “vested rights” have not
been abrogated by Act 111. Further, we believe it is clear
that the General Assembly intended for the 104-week and
credit weeks provisions of Act 111 to be given retroactive
effect, where, as we noted in Rose Corporation, it stated
in plain language it was doing so.
Id., slip op. at 16-17 (citation omitted). Our analysis in Pierson is directly applicable
and controlling here. We therefore reject Claimant’s constitutional challenges to
Act 111.
III. Conclusion
Based on the foregoing discussion, we affirm the Board’s order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Hutchinson, :
Petitioner :
:
v. :
:
Annville Township (Workers’ :
Compensation Appeal Board), : Nos. 16 & 17 C.D. 2021
Respondent :
ORDER
AND NOW, this 9th day of August, 2021, the orders of the Workers’
Compensation Appeal Board in the above consolidated cases are AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge