J. Gilbert v. Albert Einstein Med. Ctr. (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Gilbert, :
Petitioner :
:
v. :
:
Albert Einstein Medical Center :
(Workers’ Compensation :
Appeal Board), : No. 1183 C.D. 2020
Respondent : Submitted: June 3, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: August 16, 2022
James Gilbert (Claimant) petitions for review of the Workers’
Compensation (WC) Appeal Board’s (Board) October 22, 2020 order affirming the
WC Judge’s (WCJ) decision that granted Claimant’s Petition to Reinstate WC
Benefits (Reinstatement Petition) to temporary total disability (TTD), effective
November 10, 2017, and denied Claimant’s Petition to Modify his WC benefit status
(Modification Petition), effective June 15, 2006. Claimant presents one issue for
this Court’s review: whether the Board erred by failing to reinstate Claimant to TTD
status as of the date his WC benefits were modified based on an unconstitutional
Impairment Rating Evaluation (IRE). After review, this Court affirms.
On November 13, 2000, Claimant suffered an injury in the course and
scope of his employment with Albert Einstein Medical Center (Employer). On
December 21, 2000, Employer issued a Notice of Compensation Payable that
described Claimant’s November 13, 2000 work injury as a right cervical strain for
which Employer paid Claimant TTD benefits. On June 1, 2006, Christopher
Belletieri, M.D., performed an IRE, and determined that Claimant had reached
maximum medical improvement from his November 13, 2000 work injury, and had
a corresponding 35% whole-body impairment rating. In a February 6, 2007
Supplemental Agreement, Employer and Claimant agreed that Claimant’s
November 13, 2000 work injury should be described as cervical spine, C5-6
herniated disc with cervical radiculopathy, and that Claimant’s WC benefit status
changed from TTD to temporary partial disability (TPD) on June 15, 2006.
On November 10, 2017, Claimant filed the Modification Petition
alleging that Claimant’s WC benefit status should be modified from TPD to TTD as
of June 15, 2006 (the effective date of the change in Claimant’s WC benefit status
as set forth in the Supplemental Agreement). Employer filed an Answer denying the
material allegations in the Modification Petition. Also on November 10, 2017,
Claimant filed the Reinstatement Petition alleging that Claimant’s TTD benefit
status should be reinstated as of January 12, 2016 (the day after Claimant’s 500
weeks of TPD benefits ended). Employer filed an Answer denying the material
allegations in the Reinstatement Petition.
On October 8, 2019, the WCJ granted Claimant’s Reinstatement
Petition effective November 10, 2017 (the date Claimant filed his Reinstatement
Petition), and denied Claimant’s Modification Petition. Claimant appealed to the
Board. On October 22, 2020, the Board affirmed the WCJ’s decision. Claimant
appealed to this Court.1
1
“Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated.” Pierson v. Workers’ Comp. Appeal Bd. (Consol Pa. Coal Co. LLC), 252 A.3d
1169, 1172 n.3 (Pa. Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021).
2
Claimant first argues that because in Protz v. Workers’ Compensation
Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II), the
Pennsylvania Supreme Court declared Section 306(a.2) of the WC Act (Act) 2
unconstitutional, the entire IRE section has been stricken from the Act. Therefore,
Claimant asserts that Protz II must be given full retroactive effect rendering all IREs
performed pursuant to Section 306(a.2) of the Act, and all the legal effects therefrom,
void ab initio.
Initially, Act 111 replaced former Section 306(a.2) of the Act with
Section 306(a.3) of the Act, which declares, in pertinent part:
(1) When an employe has received total disability
compensation . . . for a period of [104] weeks, unless
otherwise agreed to, the employe shall be required to
submit to a medical examination which shall be
requested by the insurer within [60] days upon the
expiration of the [104] weeks to determine the degree
of impairment due to the compensable injury, if any.
The degree of impairment shall be determined based upon
an evaluation by a physician . . . pursuant to the [American
Medical Association (AMA) ‘Guides,’] 6th edition
(second printing April 2009).
(2) If such determination results in an impairment
rating that meets a threshold impairment rating that is
equal to or greater than [35%] impairment under the
[AMA ‘Guides,’] 6th edition (second printing April
2009), the employe shall be presumed to be totally
disabled and shall continue to receive total disability
compensation benefits . . . . If such determination
results in an impairment rating less than [35%]
impairment under the [AMA ‘Guides,’] 6th edition
(second printing April 2009), the employe shall then
receive partial disability benefits . . . : Provided,
however, That no reduction shall be made until [60] days’
notice of modification is given.
2
Section 306(a.2) of the 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, was repealed by the Act of October 24, 2018,
P.L. 714, No. 111 (Act 111), and replaced by Section 306(a.3) of the Act.
3
(3) Unless otherwise adjudicated or agreed to based upon
a determination of earning power . . . , the amount of
compensation shall not be affected as a result of the
change in disability status and shall remain the same. An
insurer or employe may, at any time prior to or during the
[500]-week period of partial disability, show that the
employe’s earning power has changed.
(4) An employe may appeal the change to partial disability
at any time during the [500]-week period of partial
disability[:] Provided, That there is a determination that
the employe meets the threshold impairment rating that is
equal to or greater than [35%] impairment under the
[AMA ‘Guides,’] 6th edition (second printing April 2009).
(5) Total disability shall continue until it is adjudicated or
agreed . . . that total disability has ceased or the employe’s
condition improves to an impairment rating that is less
than [35%] of the degree of impairment defined under the
[AMA ‘Guides,’] 6th edition (second printing April 2009).
(6) Upon request of the insurer, the employe shall submit
to an [IRE] in accordance with the provisions of [S]ection
314 [of the Act] to determine the status of impairment:
Provided, however, That for purposes of this clause, the
employe shall not be required to submit to more than [2]
[IREs] under this clause during a [12]-month period.
(7) In no event shall the total number of weeks of partial
disability exceed [500] weeks for any injury or recurrence
thereof, regardless of the changes in status in disability
that may occur. In no event shall the total number of
weeks of total disability exceed [104] weeks for any
employe who does not meet a threshold impairment rating
that is equal to or greater than [35%] impairment under the
[AMA ‘Guides,’] 6th edition (second printing April 2009),
for any injury or recurrence thereof.
77 P.S. § 511.3 (emphasis added).
Section 3 of Act 111 further provides, in relevant part:
(1) For the purposes of determining whether an employee
shall submit to a medical examination to determine the
degree of impairment and whether an employee has
received total disability compensation for the period of
4
104 weeks under [S]ection 306(a.3)(1) of the [A]ct, an
insurer shall be given credit for weeks of total disability
compensation paid prior to the effective date of this
paragraph. This section shall not be construed to alter
the requirements of [S]ection 306(a.3) of the [A]ct.
(2) For the purposes of determining the total number of
weeks of partial disability compensation payable under
[S]ection 306(a.3)(7) of the [A]ct, an insurer shall be
given credit for weeks of partial disability
compensation paid prior to the effective date of this
paragraph.
Act 111, § 3(1), (2) (emphasis added).
Claimant specifically contends that the Board erred as a matter of law
by relying on Whitfield v. Workers’ Compensation Appeal Board (Tenet Health
System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018) (en banc),3 and Dana
Holding Corp. v. Workers’ Compensation Appeal Board (Smuck), 232 A.3d 629 (Pa.
2020) (Dana II), in reinstating Claimant’s WC benefits to TTD status as of the date
that he filed his Reinstatement Petition, rather than reinstating him to TTD status as
of June 15, 2006, the effective date of the unconstitutional IRE, because Whitfield
was improperly decided, and the Board misapplied the holding of Dana II.
This Court rejected Claimant’s argument in City of Pittsburgh v.
Workers’ Compensation Appeal Board (Donovan), 252 A.3d 1189 (Pa. Cmwlth.
2021), explaining:
In Weidenhammer [v. Workers’ Compensation Appeal
Board (Albright College), 232 A.3d 986 (Pa. Cmwlth.
2020)], decided just last year, this Court reaffirmed
Whitfield’s approach. Unlike the claimants in
Whitfield . . . , the claimant in Weidenhammer sought
reinstatement of her total disability status beyond the
three-year period provided in [S]ection 413(a) of the Act[,
77 P.S. § 772]; she thus sought a determination that Protz
II is fully retroactive and affords her relief despite the
3
Whitfield was decided June 6, 2018. The Whitfield Court held that the proper date for
modification based on an unconstitutional IRE is the date the reinstatement petition is filed.
5
statutory time limitation. [See] Weidenhammer, 232 A.3d
at 988-89. This Court declined to so hold. After
discussing the principles governing the retroactive
application of a new rule of law, as expounded by our
Supreme Court in Blackwell v. State Ethics
Commission, . . . 589 A.2d 1094 ([Pa.] 1991) . . . , this
Court in Weidenhammer held that “the ruling in Protz II
was not intended to be given a fully retroactive effect,
without regard to the statute of repose in [S]ection
413(a) of the Act . . . .” Weidenhammer, 232 A.3d at 995.
In light of Whitfield and [Dana Holding Corp. v. Workers’
Compensation Appeal Board (Smuck), 195 A.3d 635 (Pa.
Cmwlth. 2018) (en banc) (]Dana I[)4], [this Court]
summarized, “Protz II applies to cases in active
litigation when the Supreme Court issued its decision
or where a reinstatement petition is filed within three
years of the most recent compensation payment in
accordance with [S]ection 413(a) of the Act . . . .”
Weidenhammer, 232 A.3d at 991 (emphasis added).
Because the claimant in Weidenhammer had not sought
reinstatement of her total disability status within the three
years provided by [S]ection 413(a) of the Act, and because
her challenge was not preserved in active litigation at the
time Protz II was decided, the claimant was not entitled to
relief.
City of Pittsburgh, 252 A.3d at 1198 (bold emphasis added). “Notably, like
[Claimant] in this appeal, the claimant in Weidenhammer argued that Whitfield was
wrongly decided and should be overruled. This Court rejected that contention. See
Weidenhammer, 232 A.3d at 995-96.” City of Pittsburgh, 252 A.3d at 1198 n.11.
Similarly, here, Claimant filed his Reinstatement Petition well over the
three years afforded by Section 413(a) of the Act. Because Claimant “had not sought
reinstatement of [his] [TTD] status within the three years provided by [S]ection
413(a) of the Act, and because [his] challenge was not preserved in active litigation
4
In Dana I, this Court held that “Protz II applies to cases where the underlying IRE was
actively being litigated when that decision was issued[.]” Dana I, 195 A.3d at 643. Our Supreme
Court affirmed this Court’s Dana I decision on June 16, 2020. See Dana II.
6
at the time Protz II was decided, [] [C]laimant [is] not entitled to relief.” City of
Pittsburgh, 252 A.3d at 1198.
For all of the above reasons, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
Judge Fizzano Cannon did not participate in the decision in this matter.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Gilbert, :
Petitioner :
:
v. :
:
Albert Einstein Medical Center :
(Workers’ Compensation :
Appeal Board), : No. 1183 C.D. 2020
Respondent :
ORDER
AND NOW, this 16th day of August, 2022, the Workers’ Compensation
Appeal Board’s October 22, 2020 order is affirmed.
_________________________________
ANNE E. COVEY, Judge