C. McCloud v. City of Philadelphia (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charles McCloud, :
Petitioner :
:
v. : No. 8 C.D. 2022
: Submitted: July 29, 2022
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: March 29, 2023
Charles McCloud (Claimant) petitions for review of a December 8, 2021
Order of the Workers’ Compensation Appeal Board (Board) that affirmed the June
9, 2021 Decision of a Workers’ Compensation Judge (WCJ), granting Claimant’s
Reinstatement Petition and reinstating Claimant to total temporary disability (TTD)
as of November 26, 2019.1 The sole issue before the Court is the appropriate date
of reinstatement. The WCJ and Board reinstated Claimant’s TTD status as of the
date Claimant filed the Reinstatement Petition. Claimant argues he should have been
reinstated as of August 27, 2012, the date of the original impairment rating
evaluation (IRE), which resulted in the modification of Claimant’s disability status.
Consistent with this Court’s precedent, we affirm.
1
The WCJ also denied the Termination Petition filed by the City of Philadelphia
(Employer), which it did not appeal.
The pertinent facts of this matter are undisputed. On December 17, 2003,
Claimant suffered a work-related injury in the course and scope of his employment
with the City of Philadelphia (Employer). Employer issued an amended Notice of
Compensation Payable accepting the work injury as a “foot, sprain or tear, sprained
R foot.” (WCJ Decision, Finding of Fact ¶ 6.) On August 27, 2012, Claimant
underwent an IRE that found Claimant had a whole-body impairment of three
percent. Thereafter, Employer filed a Petition to Modify Compensation Benefits,
seeking to modify Claimant’s TTD status to partial disability status based upon the
IRE. By decision and order dated December 5, 2014, another WCJ granted
Employer’s petition pursuant to an agreement of the parties.
Following Protz v. Workers’ Compensation Appeal Board (Derry Area
School District), 161 A.3d 827 (Pa. 2017), in which the Pennsylvania Supreme Court
declared the IRE provision found in Section 306(a.2) of the Workers’ Compensation
Act2 (Act) was an unconstitutional delegation of legislative power, Claimant filed a
Reinstatement Petition seeking reinstatement to TTD status as of August 27, 2012,
the date of the IRE.
Following a hearing, the WCJ granted Claimant’s Reinstatement Petition but,
consistent with this Court’s en banc decision in Whitfield v. Workers’ Compensation
Appeal Board (Tenet Health System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth.
2018), reinstated Claimant to TTD status as of November 26, 2019, the date
Claimant filed his Reinstatement Petition. (WCJ Decision, Conclusion of Law ¶
3.) Claimant appealed to the Board, arguing that he should have been reinstated as
of the date of the IRE. The Board affirmed, and Claimant filed a timely Petition for
Review with this Court.
2
Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 24, 1996, P.L. 350,
77 P.S. § 511.2, repealed by the Act of October 24, 2018, P.L. 714, No. 111.
2
Before this Court,3 Claimant argues, as he did before the WCJ and Board, that
because the Supreme Court held Section 306(a.2) of the Act was unconstitutional
and the IRE was performed pursuant to that section, his disability status should be
reinstated as of the date of the IRE. Claimant argues he has a substantive, vested
right in TTD, which is protected by the Remedies Clause of article I, section 11 of
the Pennsylvania Constitution, Pa. Const. art. I, § 11.4 Claimant asserts Protz should
be given full retroactive effect because the Act is remedial in nature. Claimant
further argues that because Protz invalidated Section 306(a.2) in its entirety, the IRE
provision is void ab initio. Claimant contends that by not reinstating his TTD status
as of the date of the IRE, the Court is allowing enforcement of a provision declared
unconstitutional, which is “unfair and unjust.” (Claimant’s Br. at 19.) Claimant
argues that even if it would be burdensome to give Protz full retroactive effect, the
Court should do so, citing Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery
v. Louisiana, 136 S. Ct. 718 (2016), in which the United States Supreme Court
declared sentencing a juvenile to life in prison without the possibility of parole
violated the prohibition against cruel and unusual punishment, which was given full
retroactive effect. In addition, Claimant argues Protz established a new rule of law,
which under Blackwell v. State Ethics Commission, 589 A.2d 1094 (Pa. 1991),
3
Our review is limited to determining whether constitutional rights were violated, whether
errors of law were committed, or whether necessary findings of fact are supported by substantial
evidence. Universal Am-Can, Ltd. v. Workers’ Comp. Appeal Bd. (Minteer), 762 A.2d 328, 331
n.2 (Pa. 2000).
4
The Remedies Clause provides, in relevant part:
All courts shall be open; and every man for an injury done him in his lands, goods,
person or reputation shall have remedy by due course of law, and right and justice
administered without sale, denial or delay. . . .
Pa. Const. art. I, § 11.
3
should be applied retroactively. Alternatively, Claimant argues that even if Protz
did not establish a new rule of law, it is still void ab intitio.
Employer responds that the Board’s decision is consistent with Whitfield and
other precedent. According to Employer, only if Claimant had been actively
challenging the IRE determination at the time Protz was decided would he be entitled
to full retroactive effect, consistent with this Court’s decision in Dana Holding
Corporation v. Workers’ Compensation Appeal Board (Smuck), 195 A.3d 635 (Pa.
Cmwlth. 2018), aff’d, 232 A.3d 629 (Pa. 2020). Because Claimant did not challenge
the original change in disability status, Employer argues the Court should affirm the
Board’s Order.
Since Protz was decided, numerous claimants, employers, and insurers have
been testing its limitations and, understandably so, as the failure to do so may have
consequences. Dana Holding is the perfect example of such a consequence.
Because the claimant there was actively litigating the IRE at the time Protz was
decided, that claimant’s disability status was reinstated as of the date of the IRE.
Dana Holding, 195 A.3d at 646. However, in Whitfield, the Court held that
claimants who file a reinstatement petition to have their disability status reinstated
to TTD following Protz are only entitled to reinstatement as of the date of filing the
reinstatement petition. Whitfield, 188 A.3d at 616. Claimant falls into the latter
category and his date of reinstatement is controlled by Whitfield.
Claimant makes numerous arguments as to why he should be reinstated as of
the date of the IRE, but those arguments are not novel and have been previously
rejected by this Court. In Weidenhammer v. Workers’ Compensation Appeal Board
(Albright College), the Court rejected the claimant’s void ab initio and new rule of
law arguments, stating “it does not follow that the Pennsylvania Supreme Court
4
intended its ruling in Protz [] to be given a fully retroactive effect . . . .” 232 A.3d
986, 994 (Pa. Cmwlth. 2020). See also George v. City of Phila. (Workers’ Comp.
Appeal Bd.) (Pa. Cmwlth., No. 23 C.D. 2022, filed Oct. 11, 2022), slip op. at 9-10;
Ellison v. Se. Pa. Transp. Auth. (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No.
1080 C.D. 2020, filed Aug. 20, 2021), slip op. at 9-10, petition for allowance of
appeal denied, 268 A.3d 381 (Pa. 2021).5 Claimant’s vested rights argument under
the Remedies Clause was rejected by the Court in DiPaolo v. UPMC Magee
Women’s Hospital (Workers’ Compensation Appeal Board), 278 A.3d 430, 435 (Pa.
Cmwlth. 2022), petition for allowance of appeal denied (Pa., No. 191 WAL 2022,
filed Jan. 3, 2023), and Pierson v. Workers’ Compensation Appeal Board (Consol
Pennsylvania Coal Company LLC), 252 A.3d 1169 (Pa. Cmwlth.), petition for
allowance of appeal denied, 261 A.3d 378 (Pa. 2021).
In summary, the Court has repeatedly declined to give full retroactive effect
to Protz in circumstances, such as this, where the claimant was not actively litigating
the change in their disability status at the time Protz was decided. Consistent with
this precedent, Claimant’s disability status was properly reinstated to TTD as of the
date he filed his Reinstatement Petition. Accordingly, we affirm the Board’s Order.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
5
Unreported panel decisions of this Court may be cited for their persuasive value pursuant
to Rule 126(b)(1) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 126(b)(1), and
Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charles McCloud, :
Petitioner :
:
v. : No. 8 C.D. 2022
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
NOW, March 29, 2023, the Order of the Workers’ Compensation Appeal
Board, dated December 8, 2021, is AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge