M. Ruggiero v. Com. of PA & Inservco Ins. Services, Inc. (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary Ruggiero, :
Petitioner :
:
v. : No. 934 C.D. 2020
: SUBMITTED: April 12, 2021
Commonwealth of Pennsylvania and :
Inservco Insurance Services, Inc. :
(Workers’ Compensation Appeal :
Board), :
Respondents :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge (P.)
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: May 12, 2021
Mary Ruggiero (Claimant) petitions this Court for review of the August 31,
2020 order of the Workers’ Compensation Appeal Board (Board), which affirmed
the decision of a workers’ compensation judge (WCJ) reinstating Claimant’s total
disability benefits, effective August 1, 2017. The WCJ reinstated Claimant’s total
disability benefits pursuant to Protz v. Workers’ Compensation Appeal Board (Derry
Area School District), 161 A.3d 827 (Pa. 2017) (Protz II), which rendered the
impairment rating evaluation (IRE) provisions in the Workers’ Compensation Act
(Act)1 unconstitutional.2 The sole issue before this Court is whether the WCJ erred
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
2
A claimant who has received total disability benefits for 104 weeks must submit to an
IRE, which is used to calculate the claimant’s degree of impairment due to the compensable injury.
See Section 306(a.3)(1) of the Act, 77 P.S. § 511.3(1), added by the Act of October 24, 2018, P.L.
(Footnote continued on next page…)
in reinstating Claimant’s benefits on August 1, 2017, the date she filed her
reinstatement petition.
I. Background
The facts underlying this matter are undisputed. Claimant began receiving
total disability benefits following a November 10, 1999 work injury sustained in the
course of her employment with the Commonwealth of Pennsylvania, Department of
Public Welfare3 (Employer). Certified Record (C.R.), Item No. 24. A March 24,
2014 decision by a WCJ modified Claimant’s disability status from total to partial
based on a stipulated agreement of the parties and a September 24, 2013 IRE
conducted under former Section 306(a.2) of the Act,4 which assigned Claimant a
714 (Act 111). In Protz v. Workers’ Compensation Appeal Board (Derry Area School District),
124 A.3d 406, 416 (Pa. Cmwlth. 2015) (Protz I), aff’d, 161 A.3d 827 (Pa. 2017), this Court held
that former Section 306(a.2) of the Act, added by the Act of June 24, 1996, P.L. 350, formerly 77
P.S. § 511.2, repealed by Section 1 of Act 111, was an unconstitutional delegation of legislative
power, as it provided that an IRE should be performed under the “most recent” version of the
American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA
Guides). Protz I, 124 A.3d at 416. We directed that future IREs must utilize the Fourth Edition
of the AMA Guides, the version in effect at the time Section 306(a.2) was enacted. Id. at 417.
The Supreme Court affirmed this Court in Protz II but struck down Section 306(a.2) in its entirety.
Act 111 reenacted the IRE provisions held unconstitutional in Protz II, with a few key
differences. Unlike former Section 306(a.2) of the Act, which specified that an IRE must be
conducted pursuant to the most recent version of the AMA Guides, an IRE under Act 111 must
utilize the Sixth Edition (second printing April 2009) of the AMA Guides. Act 111 also lowered
the threshold percentage of disability by which a claimant’s disability status may be modified.
Under former Section 306(a.2) of the Act, modification of disability status was appropriate if a
claimant’s total disability was less than 50%. Section 306(a.3)(1) of Act 111 lowered this
threshold to 35%. Section 306(b) of the Act limits a claimant’s receipt of partial disability benefits
to 500 weeks. 77 P.S. § 512.
3
The Department of Public Welfare was renamed the Department of Human Services by
the Act of September 24, 2014, P.L. 132.
4
Section 306(b) of the Act limits a claimant’s receipt of partial disability benefits to 500
weeks. 77 P.S. § 512.
2
whole-body impairment rating of 12%. R.R. at 31a-33a. Claimant did not appeal
this decision.
On August 1, 2017, approximately two months after the Supreme Court held
Section 306(a.2) of the Act unconstitutional in Protz II, Claimant filed a petition
seeking reinstatement of her total disability benefits. Id. at 34a. The WCJ granted
Claimant’s petition and reinstated her total disability status as of the date of her
September 24, 2013 IRE. Id. at 68a. Employer appealed to the Board, arguing that
Claimant’s challenge to the constitutionality of Section 306(a.2) of the Act was
untimely and her claim was not pending at the time the Supreme Court decided Protz
II. Id. at 70a.
While Employer’s appeal was pending before the Board, this Court decided
Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System
Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018), holding that a claimant whose
disability status was modified pursuant to an IRE rendered invalid by Protz II, and
who filed a petition seeking reinstatement of total disability benefits within three
years of her last payment of compensation, was entitled to reinstatement as of the
date she filed her reinstatement petition. Act 111 became effective shortly thereafter.
In light of the Whitfield decision and the enactment of Act 111, the Board remanded
the instant matter to the WCJ for additional fact-finding and conclusions of law.
R.R. at 77a-78a.
Claimant testified at a May 13, 2019 remand hearing that she continues to
receive treatment for symptoms related to the November 10, 1999 work injury and
she did not feel capable of performing her pre-injury job. Id. at 87a, 93a. She takes
medication for both her “mental and physical injuries,” and uses a transcutaneous
electrical nerve stimulation unit to treat her pain symptoms. Id. at 87a-88a. Claimant
3
related that her symptoms were present from the date of the September 24, 2013 IRE
and continued throughout the period she received partial disability benefits. Id. at
90a-91a.
In a decision circulated on August 26, 2019, the WCJ credited Claimant’s
testimony that she continued to be disabled by her November 10, 1999 work injury.
Id. at 108a. The WCJ found that, under Whitfield, Claimant was entitled to
reinstatement of her total disability benefits as of August 1, 2017, the date of her
reinstatement petition. Id. The WCJ found that Act 111 was not applicable to “the
within matter,” as Claimant’s work injury and the September 24, 2013 IRE pre-dated
its enactment. Id. Claimant appealed to the Board, which affirmed the WCJ on
August 31, 2020. Id. at 120a. This appeal followed.5
II. Discussion
Claimant argues that reinstatement of her total disability benefits should be
effective September 24, 2013, as the IRE upon which her benefit status was modified
is constitutionally invalid and “should be treated as though it never existed . . . .”
Claimant’s Br. at 11. Claimant argues that Whitfield is distinguishable from the
instant matter, as the claimant in that matter had exhausted her 500 weeks of partial
disability benefits at the time she sought reinstatement of her total disability benefits.
Claimant, to the contrary, was still within her 500-week period of partial disability
when the Supreme Court decided Protz II, and her claim must be construed as “still
pending” on that date. Id. at 14, 18. Relying on Dana Holding Corporation v.
5
This Court’s review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, constitutional rights were violated, or errors of law were
committed. Borough of Heidelberg v. Workers’ Comp. Appeal Bd. (Selva), 928 A.2d 1006, 1009
(Pa. 2006). Where the issue presented involves a question of law, our standard of review is de
novo and our scope of review is plenary. Id.4
Workers’ Compensation Appeal Board (Smuck), 232 A.3d 629 (Pa. 2020), Claimant
contends that her disability status must be reinstated as of September 24, 2013.
We disagree with Claimant that her claim was pending at the time Protz II
was decided and reject her argument that Dana Holding controls our disposition of
this matter. The claimant in Dana Holding, David Smuck (Smuck), was in the midst
of challenging the modification of his disability status before a WCJ when this Court
issued its decision in Protz I, and his appeal of the WCJ’s decision was pending
before the Board when the Supreme Court decided Protz II. Dana Holding, 232
A.3d at 633. This Court had held that Protz II applied retroactively to invalidate
IREs for “cases, such as this, where the underlying IRE was still being actively
litigated when Protz II was issued.”6 Id. Therefore, Smuck’s total disability benefits
were appropriately reinstated as of the date of the unconstitutional IRE. Id. The
Supreme Court affirmed and expressly limited the retroactive application of Protz II
to “cases in which [Protz II] was raised during the course of ongoing litigation over
an IRE determination.” Id. at 636 (emphasis added).
Instantly, the WCJ modified Claimant’s disability based on a stipulated
agreement between Claimant and Employer that recognized a September 24, 2013
IRE assigning Claimant a 12% whole body impairment. Claimant did not appeal the
WCJ’s decision, and she was not actively litigating this matter when the Supreme
Court decided Protz II. In point of fact, Claimant cited Protz II as the basis for her
August 1, 2017 petition seeking reinstatement of full disability benefits. As
Claimant did not raise the unconstitutionality of the September 24, 2013 IRE
determination “during the course of ongoing litigation,” Dana Holding is
6
See Dana Holding Corp. v. Workers’ Comp. Appeal Bd. (Smuck), 195 A.3d at 635, 643
(Pa. Cmwlth. 2018), aff’d, 232 A.3d 629 (Pa. 2020).
5
inapplicable and cannot form a basis for reinstating Claimant’s benefits as of
September 24, 2013.
Claimant’s attempt at distinguishing Whitfield is likewise unpersuasive. In
Whitfield, the disability status of claimant Paulette Whitfield (Whitfield) was
modified following a June 13, 2006 IRE that assigned her a whole-body impairment
rating of 44%. Whitfield, 188 A.3d at 602. Accordingly, as her percentage of whole-
body impairment fell below the 50% threshold provided in former Section 306(a.2)
of the Act, a WCJ modified Whitfield’s disability status from total to partial. Id.
Whitfield received her last payment of partial disability compensation in mid-July
2015. Id. On November 13, 2015, Whitfield filed a petition seeking reinstatement
of total disability benefits under Protz I. Id. at 603. The WCJ denied Whitfield’s
petition on the grounds that Protz I did not expressly void all prior IREs or provide
that it applied retroactively. Id. Whitfield appealed to the Board, which affirmed.
Id.
On appeal to this Court, Whitfield argued for a retroactive application of Protz
I and II, as the IRE upon which her change in disability status was premised had
been declared unconstitutional and she had filed her reinstatement petition within
three years after the date of her most recent payment of compensation. Id. at 612.
Given the facts of the case, however, we declined to treat the issue raised as “purely
a question of retroactivity.” Id. at 616. We noted that a reinstatement of benefits is
governed by Section 413(a) of the Act,7 which relevantly permits reinstatement of a
claimant’s workers’ compensation benefits “upon proof that [her] disability has . . .
recurred,” provided that the reinstatement petition has been filed “within three years
7
77 P.S. § 772.
6
after the date of the most recent payment of compensation.” Critical to our analysis
was the meaning of “disability” under Section 413(a) of the Act. Id. at 612.
While recognizing that the term disability was generally synonymous with a
loss of earning power resulting from a work-related injury, we noted that it could
also relate to a claimant’s status. Id. Former Section 306(a.2) of the Act, for
example, provided a method whereby a claimant’s disability status could be
modified from total to partial without regard to any change in her earning power. Id.
Such was the situation for Whitfield, whose disability status was modified, not due
to any change in her earning power, but rather by means of an IRE. Id. The legal
effect of Protz I and II rendered Whitfield once again eligible for total disability
benefits. Id. at 614. In that regard, we likened Whitfield’s situation to that of a
claimant seeking reinstatement of benefits under suspension, a status which
acknowledges a continuing medical injury. Id.
Reinstatement of suspended benefits, however, requires a claimant
demonstrate that the reasons for suspension no longer exist. Id. at 615. Although
Whitfield testified before the WCJ that she was unable to work, and her employer
presented no evidence to the contrary, the WCJ made no findings with regard to
Whitfield’s credibility and simply denied her reinstatement petition on the grounds
that Protz I did not apply. Id. at 616. Accordingly, we vacated the Board’s order
affirming the WCJ and remanded the matter for the purpose of determining whether
Whitfield’s disability continued. Id. at 617. If the WCJ credited her testimony,
Whitfield was entitled to reinstatement “as of the date she filed her [p]etition.” Id.
at 616. Our decision did not alter Whitfield’s past status; it merely “[gave] effect to
[her] status as it existed at the time she filed her reinstatement petition.” Id. at
617 (emphasis added).
7
We arrived at the same conclusion in White v. Workers’ Compensation Appeal
Board (City of Philadelphia), 237 A.3d 1225 (Pa. Cmwlth. 2020). In White, the
claimant’s disability status was modified from total to partial following a December
4, 2013 IRE which assigned her a whole-body impairment rating of 36% resulting
in a modification of her disability status from total to partial, pursuant to former
Section 306(a.2) of the Act. Id. at 1226-27. She did not appeal the modification of
her disability status. Id. at 1227. Prior to the expiration of her 500 weeks of partial
disability, the claimant sought reinstatement of total disability benefits, citing Protz
I. Id. A WCJ granted the claimant’s petition but failed to make any determination
regarding the effective date of reinstatement. Id. The Board affirmed the
reinstatement of benefits but modified the WCJ’s decision to reflect that
reinstatement was effective the date the claimant filed her reinstatement petition. Id.
On appeal, we concluded that Whitfield, and not Dana Holding, controlled the date
of reinstatement, as the claimant had not appealed the initial modification of her
disability status and she was not in the process of litigating her reinstatement petition
when we decided Protz I. Id. at 1231.
Instantly, given the record before us, we must similarly seek to give effect to
Claimant’s status “as it existed at the time she filed her reinstatement petition.” Id.
Like Whitfield, Claimant’s disability status was modified without regard to any
change in her earning power pursuant to an IRE performed under former Section
306(a.2) of the Act. Claimant did not appeal the initial modification of her disability
status, and she was not actively litigating the September 24, 2013 IRE when the
entirety of Section 306(a.2) was rendered unconstitutional in Protz II. As a result,
Claimant’s status at the time she filed her reinstatement petition was comparable to
8
that of a claimant seeking reinstatement of suspended benefits pursuant to Section
413(a) of the Act.
Per Whitfield,8 the WCJ correctly reinstated Claimant’s total disability
benefits on August 1, 2017, the date she filed her reinstatement petition.
Accordingly, we affirm the Board.
__________________________________
ELLEN CEISLER, Judge
Judge Leavitt concurs in the result only.
8
Recent unreported decisions of this Court have likewise concluded that the date a
claimant’s total disability benefits may be reinstated is controlled by his or her status as of the date
a reinstatement petition is filed. See Burk v. Workers’ Comp. Appeal Bd. (Sch. Dist. of Phila.) (Pa.
Cmwlth., No. 491 C.D. 2020, filed Dec. 22, 2020); Perillo v. Workers’ Comp. Appeal Bd.
(Extended Healthcare Servs., Inc. and State Workers’ Ins. Fund) (Pa. Cmwlth., No. 649 C.D. 2020,
filed Mar. 3, 2021). This Court may cite its unreported panel decisions for their persuasive value.
See Section 414 of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code §
69.414.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary Ruggiero, :
Petitioner :
:
v. : No. 934 C.D. 2020
:
Commonwealth of Pennsylvania and :
Inservco Insurance Services, Inc. :
(Workers’ Compensation Appeal :
Board), :
Respondents :
ORDER
AND NOW, this 12th day of May, 2021, the August 31, 2020 order of the
Workers’ Compensation Appeal Board is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge