K. Elliott v. City of Pittsburgh (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Elliott, :
Petitioner :
:
v. :
:
City of Pittsburgh (Workers’ :
Compensation Appeal Board), : No. 352 C.D. 2022
Respondent : Submitted: October 21, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: February 6, 2023
Kenneth Elliott (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) dated March 30, 2022. The Board
affirmed the decision of a workers’ compensation judge (WCJ) granting Claimant’s
reinstatement petition and reinstating Claimant’s disability status to total disability
rather than partial disability as of the petition date. Claimant asserts that
reinstatement should have been effective as of the original modification date rather
than the reinstatement petition date. Upon review, we affirm the Board’s order.
I. Background
The facts of this case are not in dispute. In August 2003, Claimant
sustained a back injury in the course and scope of his employment with the City of
Pittsburgh (Employer). Bd. Dec. at 1. In December 2012, he underwent an
impairment rating evaluation (IRE) provided for in former Section 306(a.2) of the
Pennsylvania Workers’ Compensation Act (Act),1 which resulted in an impairment
rating of less than 50%. Id. Employer then filed a modification petition, and in a
March 2014 decision and order, a WCJ modified Claimant’s disability status from
total to partial as of the December 2012 IRE date. Id.
In April 2021, Claimant filed a reinstatement petition seeking a return
to total disability status based on the Pennsylvania Supreme Court’s decision in
Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 161
A.3d 827 (Pa. 2017). Bd. Dec. at 1. In August 2021, a WCJ granted the petition
and reinstated Claimant to total disability status. Id. at 1-2. In accordance with this
Court’s decision in Whitfield v. Workers’ Compensation Appeal Board (Tenet
Health System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018) (en banc), the
WCJ ordered the reinstatement to be effective as of the date of Claimant’s
reinstatement petition. Bd. Dec. at 2.
Claimant appealed to the Board, arguing that his reinstatement should
have been effective as of the 2012 modification date. The Board affirmed the WCJ’s
decision and order. Claimant’s petition for review in this Court followed.2
1
Act of June 2, 1915, P.L. 736, as amended, added by Section 4 of the Act of June 24,
1996, P.L. 350, formerly 77 P.S. § 511.2, repealed by the Act of October 24, 2018, P.L. 714, No.
111 (Act 111).
2
According to Claimant, 434 weeks and 5 days elapsed between December 27, 2012, the
date of the IRE under former Section 306(a.2), and April 27, 2021, the date as of which total
disability benefits were reinstated by the WCJ pursuant to Whitfield. Claimant’s Br. at 18.
Claimant avers that Employer has procured a new IRE under Act 111, resulting in a change of
Claimant’s disability status from total disability back to partial disability effective September 8,
2021. Id. (citing Elliot v. City of Pittsburgh, Dispute No. DSP-2689047-5, circulated February 10,
2022). Claimant further avers that Employer has stopped all indemnity benefits on the basis that
it has paid the 500 weeks of partial disability benefits to which Claimant was entitled under Section
2
II. Discussion3
The IRE provision contained in former Section 306(a.2) of the Act, 77
P.S. § 511.2, required physicians to conduct IREs according to “the most recent
edition” of the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (AMA Guides). In Protz, our Supreme Court held that
former Section 306(a.2) unconstitutionally delegated legislative authority to a
private party, in that the legislature did not retain authority or input concerning the
standards that might be contained in any future edition of the AMA Guides. 161
A.3d at 837-38. Concluding that the “most recent edition” language could not be
severed from the rest of Section 306(a.2), our Supreme Court held that the entirety
of Section 306(a.2) was unconstitutional and struck it from the Act.4 Id. at 840-41.
Before this Court, Claimant renews his assertion that the invalidation
of former Section 306(a.2) in Protz entitled him to reinstatement of his total
disability status as of the 2012 modification date rather than the 2021 reinstatement
petition date. Claimant does not dispute that the reinstatement date imposed by the
WCJ and affirmed by the Board was consistent with this Court’s decision in
Whitfield. See Claimant’s Br. at 9-10. Claimant also acknowledges that “there are
306(b)(1) of the Act, 77 P.S. § 511.1, added by Act of June 24, 1996, P.L. 350. Id. Claimant states
he has filed a reinstatement petition challenging Employer’s cessation of payments. Claimant’s
Br. at 18 (citing Elliott v. City of Pittsburgh, Dispute No. DSP-2689047-6, filed March 21, 2022).
3
Our scope of review in a workers’ compensation appeal is limited to determining whether
necessary findings of fact are supported by substantial evidence, whether an error of law was
committed, or whether constitutional rights were violated. Pocono Mountain Sch. Dist. v.
Kojeszewski (Workers’ Comp. Appeal Bd.), 280 A.3d 12, 16 n.4 (Pa. Cmwlth. 2022).
4
In response to Protz, the legislature enacted Act 111, which repealed section 306(a.2) and
replaced it with section 306(a.3) of the Act, 77 P.S. § 511.3. Under section 306(a.3), an IRE must
be conducted in accordance with the Sixth Edition of the AMA Guides, published in 2007, and a
claimant’s whole-body impairment must be less than 35% in order for the claimant to be moved
from total to partial disability status. 77 P.S. § 511.3.
3
dozens of cases where this Honorable Court has continued to apply [the] rule”
announced in Whitfield that where a claimant’s benefit status was modified from
total to partial under former Section 306(a.2) and the claimant has filed a post-Protz
reinstatement petition, any reinstatement of benefits to total disability status will be
effective only as of the date of the claimant’s reinstatement petition, not as of the
original modification date. Claimant’s Br. at 10. However, Claimant challenges the
viability of Whitfield, asserting that it was wrongly decided. Specifically, Claimant
posits that Whitfield is inconsistent with this Court’s recent decision in McLinko v.
Department of State, 270 A.3d 1243 (Pa. Cmwlth.), affirmed in part and reversed in
part, 279 A.3d 539 (Pa. 2022), in which we stated that the statute at issue there,
relating to mail-in ballots, was void ab initio because it was unconstitutional.
Claimant’s Br. at 10 (citing McLinko, 270 A.3d at 1271). We discern no merit in
Claimant’s argument.
First, our Supreme Court reversed this Court’s McLinko decision as to
all issues except the reviewability of the statute at issue.5 See 279 A.3d at 582. As
Claimant’s challenge to the validity of Whitfield was based on our decision in
5
Our Supreme Court’s decision in McLinko v. Department of State, 279 A.3d 539 (Pa.
2022) was issued on August 2, 2022, shortly after Claimant filed his brief in this Court. However,
in citing and relying on this Court’s decision in McLinko v. Department of State, 270 A.3d 1243(Pa. Cmwlth. 2022) (en banc), Claimant’s counsel failed to acknowledge that the decision was
then on appeal to the Pennsylvania Supreme Court. Moreover, once our Supreme Court issued its
decision, counsel failed to submit an update to this Court acknowledging the reversal of our
decision in McLinko. Having based his challenge to Whitfield on McLinko, counsel was
responsible to be aware of and monitor the pending appeal in McLinko and disclose to this Court
the pendency of that appeal, as well as any subsequent change in the status of the appeal. See Pa.
R.P.C. 3.3(a)(2) (stating that a lawyer shall not fail to disclose directly adverse authority) & (c)
(stating that the duty of candor in Rule 3.3(a) continues to the conclusion of the litigation) &
Explanatory Comments 2 (stating that “the lawyer must not allow the tribunal to be misled by false
statements of law”), 4 (stating that “[a] lawyer . . . must recognize the existence of pertinent legal
authorities”) & 13 (stating that the lawyer’s duty to rectify false statements of law continues until
the proceeding is complete, i.e., when a final judgment has been rendered on appeal).
4
McLinko, the reversal of McLinko effectively disposes of Claimant’s legal argument
challenging Whitfield. As Claimant concedes that the Board’s decision was
consistent with Whitfield and the “dozens” of subsequent cases following Whitfield,
Claimant’s Br. at 10, we reject Claimant’s assertion that he was entitled to
reinstatement of total disability benefits as of the 2012 modification date rather than
the 2021 reinstatement petition date.
Glen-Gery Corp. v. Zoning Hearing Board of Dover Township, 907
A.2d 1033 (Pa. 2006), on which Claimant also relies, is inapplicable to this case. As
Claimant concedes, Glen-Gery involved a challenge to the procedure followed in
enacting an ordinance. Claimant’s Br. at 12. Because that procedure was defective,
the ordinance violated due process requirements and was void ab initio. Glen-Gery,
907 A.2d at 1037. Here, however, Claimant is not challenging the procedure by
which former Section 306(a.2) of the Act was enacted. Moreover, our Supreme
Court explained in Glen-Gery that the void ab initio doctrine may not be applicable
where there has been reliance on a statute that is later declared unconstitutional. Id.
at 1038-39.
Moreover, in post-Whitfield cases, we have repeatedly rejected the very
argument Claimant asserts here, i.e., that a claimant seeking reinstatement of total
disability benefits pursuant to Protz is entitled to retroactive reinstatement back to
the original modification/IRE date on the basis that former Section 306(a.2) was void
ab initio. See, e.g., DiPaolo v. UPMC Magee Women’s Hosp. (Workers’ Comp.
Appeal Bd.), 278 A.3d 430, 438 (Pa. Cmwlth. 2022) (rejecting the claimant’s
assertions when our Supreme Court struck former Section 306(a.2) in Protz, that
provision was void ab initio and a claimant who underwent an IRE prior to Protz
was automatically restored to pre-IRE status; stating that “our courts have never held
5
that to be the case, and several decisions have placed temporal limits on the
application of Protz . . . ”); Pullin v. Sch. Dist. of Phila. (Workers’ Comp. Appeal
Bd.) (Pa. Cmwlth., No. 727 C.D. 2021, filed Feb. 25, 2022), slip op. at 4-5 n.5,6
appeal denied, 280 A.3d 866 (Pa. 2022) (declining to accord “full retroactivity” to
Protz by holding that the IRE process under former Section 306(a.2) was void ab
initio) (citing, inter alia, Weidenhammer v. Workers’ Comp. Appeal Bd. (Albright
Coll.), 232 A.3d 986, 989-95 (Pa. Cmwlth.), appeal denied, 242 A.3d 912 (Pa.
2020)); White v. Workers’ Comp. Appeal Bd. (City of Phila.), 237 A.3d 1225, 1231
(Pa. Cmwlth. 2020) (en banc) (reaffirming Whitfield and holding that reinstatement
of total disability benefits was effective only “as of the date of [the] reinstatement
petition, not the effective date of the change in [the claimant’s] disability status from
total to partial”).7 We likewise reject Claimant’s argument here.
In a closely related argument, Claimant similarly disputes Employer’s
entitlement to credit for partial disability benefits paid between the date of the 2012
modification and the date of Claimant’s reinstatement petition, on the basis that
6
We cite this unreported decision as persuasive authority pursuant to Section 414(a) of this
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
7
By contrast, in Dana Holding Corp. v. Workers’ Compensation Appeal Board (Smuck),
232 A.3d 629 (Pa. 2020), our Supreme Court applied Protz to grant a modification from partial to
total disability as of the previous IRE date, but only because the claimant was already litigating a
constitutional challenge to former Section 306(a.2), alleging improper delegation of legislative
authority, at the time Protz was decided. Our Supreme Court in Dana Holding agreed with this
Court’s conclusion “that a disability modification is not vested when it remains subject to a
preserved challenge pursued by a presently aggrieved claimant.” Id. at 649. Accordingly, the
Court held that “the general rule in Pennsylvania will be that . . . a holding of this Court that a
statute is unconstitutional will generally be applied [retroactively only as] to cases pending on
direct appeal in which the constitutional challenge has been raised and preserved.” Id. at 693; see
also White v. Workers’ Comp. Appeal Bd. (City of Phila.), 237 A.3d 1225, 1231 (Pa. Cmwlth.
2020) (en banc) (distinguishing Dana Holding from Whitfield). Here, Claimant had no such
constitutional challenge pending when Protz was decided.
6
former Section 306(a.2), under which the IRE was performed and the modification
to partial benefits was obtained, was void. This argument is equally without merit.
This Court recently addressed the same argument in Fronheiser v.
Workers’ Compensation Appeal Board (Caterpillar Logistics Services) (Pa.
Cmwlth., No. 483 C.D. 2020, filed May 12, 2021). There, we explained:
[The c]laimant maintains that, if Whitfield and its progeny
were applied to his case, Employer could effectively
receive credit for weeks that it paid partial disability
benefits pursuant to an unconstitutional IRE and statutory
scheme. Thus, [the c]laimant, argues, he would essentially
be deprived of his vested, statutory right to receive 500
weeks of partial disability benefits because his benefits
should not have been reduced from total to partial in the
first place.[8] [Original footnote omitted.]
Unfortunately for [the c]laimant, a substantially similar
argument was presented to and rejected by an en banc
panel of this Court in White . . . . In that case, we reviewed
Dana Holding . . . and curtailed that decision to the
situation where a claimant preserves a Protz challenge to
an IRE during direct review. In such a scenario, we
explained, a claimant is entitled to full retroactive
application of the Protz decision and, consequently, the
date of the IRE and conversion from total to partial
disability will mark the date of reinstatement of total
disability benefits. However, this Court in White also
reaffirmed our decision in Whitfield, and, in so doing,
distinguished it from Dana Holding . . . . We clarified that
under Whitfield, the result is different when a claimant
challenges an IRE on Protz grounds, not on direct review,
but in a new petition after Protz was decided. This Court
held that, in this particular scenario, and in contrast to
Dana Holding . . . , a claimant “is entitled to reinstatement
as of the date of [the] reinstatement petition, not the
8
Act 111, which became effective October 24, 2018, repealed Section 306(a.2) and
replaced it with Section 306(a.3). Subsection (a.3) reestablished the IRE process, including the
500-week duration of partial disability payments.
7
effective date of the change in her disability status from
total to partial.”
Id., slip op. at 4-5 (quoting White, 237 A.3d at 1231). Accordingly, we conclude
that Employer was entitled to credit for partial disability payments to Claimant
between the date of the 2012 IRE and the date of Claimant’s reinstatement petition.
III. Conclusion
Based on the foregoing discussion, we affirm the Board’s order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Elliott, :
Petitioner :
:
v. :
:
City of Pittsburgh (Workers’ :
Compensation Appeal Board), : No. 352 C.D. 2022
Respondent :
ORDER
AND NOW, this 6th day of February, 2023, the March 30, 2022 order
of the Workers’ Compensation Appeal Board is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge