D. Burk v. WCAB (SD of Phila.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David Burk, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (School District of Philadelphia), : No. 491 C.D. 2020
Respondent : Submitted: September 4, 2020
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 22, 2020
David Burk (Claimant) petitions this Court for review of the Workers’
Compensation (WC) Appeal Board’s (Board) May 7, 2020 order affirming the
Workers’ Compensation Judge’s (WCJ) October 11, 2019 remand decision, thereby
granting in part Claimant’s Petition to Reinstate Compensation Benefits
(Reinstatement Petition) as of July 18, 2017. Claimant presents two issues for this
Court’s review: (1) whether the Board misapplied Whitfield v. Workers’
Compensation Appeal Board (Tenet Health System Hahnemann LLC), 188 A.3d 599(Pa. Cmwlth. 2018) (en banc), by limiting Claimant’s reinstatement of total
disability benefits to the date he filed the Reinstatement Petition pursuant to Protz v.
Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827(Pa. 2017) (Protz II); and (2) alternatively, to the extent Whitfield limited Claimant’s
reinstatement of disability status to the date the Reinstatement Petition was filed,
whether such a limitation is consistent with the letter and spirit of the Pennsylvania
Supreme Court’s holding in Protz II. After review, we affirm.
The facts relevant to this decision are not in dispute. On March 11,
2002, Claimant injured his right knee in the course and scope of his employment as
a custodial assistant for the School District of Philadelphia (Employer). On October
5 and October 13, 2009, Employer issued corrected notices of compensation payable
and Claimant received total disability benefits. On September 23, 2013, Claimant
underwent an Impairment Rating Evaluation (IRE), which determined that he was
less than 50% impaired. Claimant’s IRE was performed using the Sixth Edition of
the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (Guides).
On February 4, 2014, Claimant filed a Petition to Review
Compensation Benefits (Review Petition) seeking to amend his injury description.
On March 20, 2014, Employer filed a Petition to Modify Compensation Benefits
from total to partial disability (Modification Petition) effective September 23, 2013,
based on Claimant’s IRE. On April 17, 2015, the WCJ denied Claimant’s Review
Petition and granted Employer’s Modification Petition. See Reproduced Record
(R.R.) at 276a-287a. Claimant did not appeal from the WCJ’s modification of his
WC benefits.
On September 18, 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 in part and rev’d in part, Protz II. In Protz I, this
Court held that former Section 306(a.2) of the WC Act (Act)1 was an
unconstitutional delegation of legislative authority because it proactively approved
the Guides’ editions beyond the Fourth Edition without review and remanded the
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 (Act 111).
A similar provision is now found in Section 306(a.3) of the Act, added by Section 1 of Act 111,
77 P.S. § 511.3.
2
matter for the WCJ to apply the Guides’ Fourth Edition. Thereafter, both parties
sought review by the Pennsylvania Supreme Court, which the Supreme Court
granted.
On April 7, 2017, Employer filed a Petition to Terminate Compensation
Benefits (Termination Petition), alleging therein that Claimant had fully recovered
from his work injury as of January 12, 2017. Claimant opposed the Termination
Petition.
On June 20, 2017, our Supreme Court issued Protz II, striking down
Section 306(a.2) of the Act on the basis that the IRE provisions therein violated the
Pennsylvania Constitution’s non-delegation doctrine by prospectively approving the
Guides’ editions beyond the Fourth Edition without review.2
On July 18, 2017, before the 500 weeks of his partial disability expired,3
Claimant filed the Reinstatement Petition seeking to nullify the modification of his
WC benefits and to reinstate his total disability benefits because Protz II rendered
his IRE invalid and unconstitutional. See R.R. at 14a-17a. On June 5, 2018, the
WCJ denied the Termination Petition, and partially granted the Reinstatement
Petition, awarding Claimant total disability benefits as of June 20, 2017, the day
Protz II was issued. See R.R. at 19a-29a.
On June 6, 2018, this Court issued the Whitfield decision, ruling that a
claimant is entitled to reinstatement based on Protz II as of the date the reinstatement
petition was filed. Thereafter, both parties in the instant case appealed from the
WCJ’s decision to the Board. On February 28, 2019, the Board remanded the matter
2
The Guides’ Fourth Edition was in effect when the Act’s IRE provisions were initially
enacted.
3
Section 306(b)(1) of the Act, 77 P.S. § 512(1), limits a claimant’s receipt of partial
disability benefits to 500 weeks.
3
to the WCJ to re-open the record and permit the parties to seek appropriate remedies
in accordance with the changes in the law following Protz II. See R.R. at 43a-49a.
On remand, the parties submitted additional evidence. On October 11,
2019, having concluded that Claimant remained disabled due to his work injury, the
WCJ again partially granted the Reinstatement Petition but, pursuant to Whitfield,
changed the effective reinstatement date to July 18, 2017, the day Claimant filed the
Reinstatement Petition. See R.R. at 51a-58a. Claimant appealed to the Board,
asserting that Whitfield had been improperly decided, and that his reinstatement
should date back to the September 23, 2013 IRE. On May 7, 2020, the Board
affirmed the WCJ’s decision. See R.R. at 72a-77a. Claimant appealed to this Court.4
Claimant argues that the Board misapplied Whitfield by limiting the
reinstatement of his total disability benefits to the date he filed the Reinstatement
Petition.
In White v. Workers’ Compensation Appeal Board (City of
Philadelphia), 237 A.3d 1225 (Pa. Cmwlth. 2020),5 this Court summarized:
In Whitfield, the claimant had her total disability benefits
converted to partial disability benefits based on a June 13,
2006 IRE performed under the Fifth Edition of the Guides,
and she received benefits from September 2002, until her
last payment of compensation in mid-July 2015. About a
month after Protz I was decided, the claimant sought
reinstatement of her total disability benefits. We held that
because the claimant filed for reinstatement of her benefits
within three years of her last compensation payment as
permitted by Section 413(a) of the Act, 77 P.S. § 772, she
was entitled, as a matter of law, to seek modification of
4
“On review[,] this Court must determine whether constitutional rights were violated,
errors of law were committed, or necessary findings of fact were supported by substantial
competent evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d
598, 601 n.6 (Pa. Cmwlth. 2014).
5
The claimant in White sought review of this Court’s decision by the Supreme Court on
September 14, 2020 (333 EAL 2020).
4
her disability status based upon the Protz decisions. We
also held, however, that in order to be entitled to
reinstatement of total disability benefits based upon a
now-unconstitutional IRE, a claimant must demonstrate
that she continues to be disabled, which she may prove
through her own testimony. The burden then shifts to the
employer to prove the contrary. We stated that so long as
the claimant’s testimony is credited, and the employer
presents no evidence to the contrary, the claimant is
entitled to reinstatement as of the date the
reinstatement petition is filed. We cautioned, though,
that ‘[s]imply because Protz II is being applied to [this]
case[, which] arose from a work injury and a change in
disability status that predates it[,] did not mean it operates
retroactively.’ Whitfield, 188 A.3d at 617.
White, 237 A.3d at 1229 (emphasis added).
Significantly, in Dana Holding Corporation v. Workers’ Compensation
Appeal Board (Smuck), 232 A.3d 629 (Pa. 2020), the claimant’s benefits were
modified from total to partial disability based on a 2014 IRE using the Guides’ Sixth
Edition. Because Protz I had been decided, the WCJ re-opened the record to allow
the employer to introduce new evidence using the Guides’ Fourth Edition, as Protz
I permitted. The WCJ ultimately modified the claimant’s WC benefits from total to
partial disability and both parties appealed. However, because Protz II was pending
before the Supreme Court, the Board granted a stay pending the Supreme Court’s
decision. After Protz II was decided, the Board reversed the WCJ’s decision and
reinstated the claimant’s partial WC disability benefits to total disability benefits
effective as of the date of the claimant’s IRE. The employer appealed to this Court
claiming the Board erred by applying Protz II retroactively. The Dana Holding
Court concluded that Protz II should be applied retroactively to the IRE date because
the claimant’s disability status based on his IRE was still being actively litigated and
was not final when the Protz decisions were issued. On appeal, the Supreme Court
affirmed.
5
On August 17, 2020,6 in White, this Court examined Dana Holding and
Whitfield relative to Protz II and concluded:
[The c]laimant argues that the present matter is
distinguishable from Whitfield because [the c]laimant filed
her reinstatement petition within her 500 weeks of partial
disability, not after the 500-week period of partial
disability was exhausted, as was the case in Whitfield.
However, [the c]laimant misapprehends the distinction
between Whitfield and Dana Holding which makes
Whitfield more applicable to the matter before us. Here,
it is not that [the c]laimant filed her reinstatement
petition within the 500-week period of partial
disability;[7] rather it is that [the c]laimant previously
had her benefits modified from total to partial
disability effective [in December] 2013, did not appeal
that decision, and is seeking reinstatement of her
benefits, via a reinstatement petition filed in October
2015, after the decision in Protz I. This makes the
present [c]laimant more like the claimant in Whitfield
than the claimant in Dana Holding, who was still in the
process of litigating her reinstatement petition when
Protz I and its progeny began to be decided. In fact, in
Dana Holding [Corp. v. Workers’ Compensation Appeal
Board (Smuck), 195 A.3d 635 (Pa. Cmwlth. 2018), aff’d,
232 A.3d 629 (Pa. 2020)], we specifically limited our
holding as follows: ‘We reiterate that our holding is
limited to cases, such as this, where the underlying IRE
was still being actively litigated when Protz II was issued.
6
Claimant filed his brief with this Court on August 3, 2020, and, thus, did not have the
benefit of this Court’s White decision at the time. Employer discussed White in its brief filed on
August 28, 2020. Notably, although Claimant filed a reply brief on September 9, 2020, he did not
address or even reference White therein.
7
Herein, the Board reached the same conclusion in its February 28, 2019 opinion, based
upon this Court’s decisions in Pavlack v. Workers’ Compensation Appeal Board (UPMC South
Side) (Pa. Cmwlth. No. 702 C.D. 2017, filed June 6, 2018), and Moore v. Workers’ Compensation
Appeal Board (Sunoco, Inc. (R&M)) (Pa. Cmwlth. No. 715 C.D. 2017, filed June 6, 2018). See
Bd. 2/28/19 Op. at 9 n.3. This Court acknowledges that its unreported memorandum opinions may
only be cited “for [their] persuasive value, but not as binding precedent.” Section 414(a) of the
Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
6
The extent to which Protz II may be retroactively applied
to another factual scenario is not currently before us.’
Dana Holding, 195 A.3d at 642 n.9.
White, 237 A.3d at 1231 (emphasis added).
The White Court expounded:
In its opinion affirming this Court, our Supreme Court
acknowledged this limitation and stated ‘the
Commonwealth Court did not err in applying the Protz
standard ‘to the case on appeal at the time of this Court’s
decision,’ retroactive to the date of the IRE.’ Our Supreme
Court further stated ‘our present decision stands for the
principle that the general rule in Pennsylvania will be that,
at least where prior judicial precedent [is not] overruled, a
holding of this 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.’ Dana Holding . . . [, 232] A.3d [at 648-49] . .
. (emphasis added). ‘[W]e agree with the Commonwealth
Court that a disability modification is not vested when it
remains subject to a preserved challenge pursued by a
presently aggrieved claimant.’ Id. . . . at [649] (emphasis
added). In the present matter, [the c]laimant was not
litigating the underlying IRE when Protz II (or for that
matter Protz I) was issued. [The c]laimant’s
modification from total to partial disability was
effective in 2013 and had not been appealed.
Accordingly, [the c]laimant here is entitled to
reinstatement as of the date of her reinstatement
petition, not the effective date of the change in her
disability status from total to partial.
White, 237 A.3d at 1231 (bold emphasis added).
Here, as in White, Claimant had his WC benefits modified from total to
partial disability based on a 2013 IRE, did not appeal from that decision, and did not
file his Reinstatement Petition challenging his IRE until after Protz II was decided.
White was decided within the letter and spirit of Protz II and is binding precedent.
Accordingly, the Board properly determined that “Claimant here is entitled to
7
reinstatement [of his WC benefits] as of the date of h[is] [R]einstatement [P]etition
[(i.e., July 18, 2017)], not the effective date of the change in h[is] disability status
from total to partial.” White, 237 A.3d at 1231.
Based on the foregoing, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David Burk, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (School District of Philadelphia), : No. 491 C.D. 2020
Respondent :
ORDER
AND NOW, this 22nd day of December, 2020, the Workers’
Compensation Appeal Board’s May 7, 2020 order is affirmed.
___________________________
ANNE E. COVEY, Judge