J. Perillo v. WCAB (Extended Healthcare Services, Inc. & SWIF)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jacqueline Perillo, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Extended Healthcare Services, :
Inc. and State Workers’ Insurance :
Fund), : No. 649 C.D. 2020
Respondents : Submitted: December 4, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 3, 2021
Jacqueline Perillo (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) June 10, 2020 order
affirming Workers’ Compensation Judge Joseph Sebastianelli’s (WCJ Sebastianelli)
decision granting Claimant’s petitions to modify Claimant’s WC benefits from
partial to total disability and to reinstate Claimant’s WC benefits to total disability
(collectively, Petitions), finding that the Claimant was entitled to reinstatement of
her total disability WC benefits as of March 2, 2018, the date she filed the Petitions.
Essentially, Claimant presents one issue for this Court’s review: whether the Board’s
decision deprives Claimant of a vested right to WC benefits and improperly gives
force to an unconstitutionally invalid statute pursuant to Protz v. Workers’
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017)
(Protz II).2 After review, this Court affirms.
On October 9, 2003, Claimant sustained a compensable work-related
injury for which she received total disability benefits. Thereafter, Employer filed a
modification petition based upon an impairment rating evaluation (IRE) performed
on October 4, 2011, which WCJ Mark A. Peleak (WCJ Peleak) granted on July 16,
2012.3 WCJ Peleak modified Claimant’s WC benefits from total to partial disability
as of October 4, 2011. On March 2, 2018, Claimant filed the Petitions alleging that
her total disability benefits should be reinstated because the IRE process was deemed
unconstitutional by Protz II. Claimant sought reinstatement of her total disability
benefits retroactive to October 4, 2011. On July 29, 2019, WCJ Sebastianelli granted
Claimant’s Petitions, but reinstated Claimant’s WC benefits to total disability
effective March 2, 2018, the date she filed the Petitions. Claimant and Employer
appealed to the Board. On June 10, 2020, the Board affirmed WCJ Sebastianelli’s
decision. Claimant appealed to this Court.4,5
Claimant argues that the Board’s decision deprives Claimant of a vested
right to WC benefits and improperly gives force to an unconstitutionally invalid
2
Claimant presented two issues in her Statement of Questions Involved: (1) whether the
Board’s decision deprives Claimant of a vested right to WC benefits and improperly gives force
to an unconstitutionally invalid statute; and (2) whether Protz II requires the reinstatement of
Claimant’s WC benefits as of the date they were improperly modified, rather than the date she
filed her Petitions. See Claimant Br. at 2. Because these issues overlap, this Court has combined
them herein.
3
Claimant’s impairment rating was calculated to be less than 35% based on the Sixth
Edition of the American Medical Association Guides to Evaluation of Permanent Impairment.
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
Employer also appealed to this Court. See Extended Healthcare Servs., Inc. v. Workers’
Comp. Appeal Bd. (Perillo) (Pa. Cmwlth. No. 620 C.D. 2020, filed March 3, 2021).
2
statute. Specifically, Claimant contends that WCJ Sebastianelli should have
reinstated Claimant’s total disability benefits as of the date of the constitutionally
invalid October 4, 2011 IRE pursuant to Protz II.
Employer rejoins that, because Claimant did not challenge the validity
of the October 4, 2011 IRE until after Protz II was decided, Whitfield v. Workers’
Compensation Appeal Board (Tenet Health System Hahnemann LLC), 188 A.3d 599(Pa. Cmwlth. 2018), and its progeny, mandate that Claimant is not entitled to
reinstatement as of the IRE date.
In discussing the retroactivity of Protz II, the Whitfield Court opined:
Our decision today does not impose any new legal
consequences based upon a past transaction. Simply
because Protz II is being applied to a case that arose from
a work injury and a change in disability status that predates
it does not mean it operates retroactively. It would be
retroactive if it related back and gave a prior transaction a
legal effect different from that which it had under the law
in effect at the time. This decision does not alter
Claimant’s past status. Rather, it gives effect to the
Claimant’s status as it existed at the time she filed her
reinstatement petition, which was filed within the statutory
timeframe for filing such petitions.
Whitfield, 188 A.3d at 617 (underline emphasis added; citations omitted); see also
Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada), 238 A.3d 551, 564 (Pa.
Cmwlth. 2020) (“[T]he Board’s conclusion that [the c]laimant was entitled to
reinstatement of total disability benefits as of the date [the c]laimant filed the
[reinstatement p]etition is consistent with Act 111,[6] the WC Act [(Act)],[7] and
precedent.”); White v. Workers’ Comp. Appeal Bd. (City of Phila.), 237 A.3d 1225,
6
Act of October 24, 2018, P.L. 714. Act 111 specifically incorporated and adopted the use
of the American Medical Association Guides to Evaluation of Permanent Impairment, 6th edition,
second printing April 2009, for performing IREs.
7
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4 - 2501-2710.
3
1231 (Pa. Cmwlth. 2020) (“[The c]laimant’s modification from total to partial
disability was effective in 2013 and had not been appealed. Accordingly, [the
c]laimant [] 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.”) (emphasis added).
Claimant attempts to distinguish Whitfield by claiming that, unlike the
claimant in Whitfield, Claimant was still receiving WC benefits when Protz II was
decided. Thus, Claimant asserts that, because Claimant filed her Petitions within the
500-week period that she was receiving partial disability benefits,8 Claimant should
get the full benefit of Protz II.
Claimant misconstrues the holding in Whitfield. The Whitfield Court
explained that, because Section 413(a) of the Act provides that “[a] [WCJ] . . . may,
at any time, modify, reinstate, suspend, or terminate [WC benefits] . . . upon petition
filed by either party . . . , upon proof that the disability of an injured employe has
increased, decreased, recurred, or has temporarily or finally ceased . . . ,” there are
no vested rights in WC benefits. 77 P.S. § 772; see also Whitfield. Further, the
Whitfield Court ruled that, because Section 413(a) of the Act expressly states that
the petition must be “filed . . . within three years after the date of the most recent
payment of compensation made prior to the filing of such petition[,]” the claimant
therein timely filed her petition. Id.
In Whitfield, the timing of Protz II had no bearing on the date of the
reinstatement of the claimant’s WC benefits. Rather, the date of reinstatement of
WC benefits was the date of the petition because the determination was based on the
claimant’s status as of the date of the filing. Whitfield. Consequently, the fact
8
See Section 306(b)(1) of the Act, 77 P.S. § 512 (“For disability partial in character caused
by the compensable injury . . . compensation shall be paid during the period of such partial
disability . . . , but for not more than five hundred weeks.”) (emphasis added).
4
that Claimant herein was receiving WC benefits when Protz II was filed, and the
claimant in Whitfield was not, is of no moment. Because Claimant did not challenge
the October 4, 2011 IRE until after Protz II was decided, she is in the same position
as the Whitfield claimant.9 Accordingly, pursuant to Section 413(a) of the Act,
Claimant has no vested right to WC benefits and no entitlement to reinstatement of
her total disability effective as of her October 4, 2011 IRE.10
For all of the above reasons, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
Judge Leavitt concurs in the result only.
9
Contra Dana Holding Corp. v. Workers’ Comp. Appeal Bd. (Smuck), 195 A.3d 635 (Pa.
Cmwlth. 2018) (The claimant’s IRE challenge was still pending when Protz II was decided;
therefore, the claimant was entitled to the benefit of Protz II.).
10
Claimant also argues that allowing modification of WC benefits based on an invalid IRE
violates Article I, Section 2 of the Pennsylvania Constitution, also known as the Remedies Clause.
However, [the Pennsylvania Supreme Court] limited the scope of
the protection to vested rights: ‘It must be something more than a
mere expectation, based upon an anticipated continuance of existing
law. It must have become a title, legal or equitable, to the present
or future enforcement of a demand, or a legal exemption from a
demand made by another.’
Konidaris v. Portnoff Law Assocs., Ltd., 953 A.2d 1231, 1241 (Pa. 2008) (quoting Lewis v. Pa. R.
Co., 69 A. 821, 823 (Pa. 1908)). Given that this Court concludes Claimant does not have a vested
right in WC benefits, the Remedies Clause does not apply.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jacqueline Perillo, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Extended Healthcare Services, :
Inc. and State Workers’ Insurance :
Fund), : No. 649 C.D. 2020
Respondents :
ORDER
AND NOW, this 3rd day of March, 2021, the Workers’ Compensation
Appeal Board’s June 10, 2020 order is affirmed.
___________________________
ANNE E. COVEY, Judge