City of Pittsburgh v. Workers' Comp. Appeal Bd.
| Decision Date | 22 April 2021 |
| Docket Number | No. 1804 C.D. 2019,1804 C.D. 2019 |
| Citation | 252 A.3d 1189 |
| Parties | CITY OF PITTSBURGH, Petitioner v. WORKERS’ COMPENSATION APPEAL BOARD (Donovan), Respondent |
| Court | Pennsylvania Commonwealth Court |
Gretchen E. Gardner, Pittsburgh, for Petitioner.
Herbert B. Cohen, Pittsburgh, for Respondent.
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,1 HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY JUDGE McCULLOUGH
The City of Pittsburgh (Employer) petitions for review of the October 21, 2019 order of the Workers’ Compensation Appeal Board (Board), which affirmed the decision of Workers’ Compensation Judge (WCJ) Steven Minnich to grant the Modification Petition and Petition to Review Compensation Benefits (Review Petition) filed by Kenneth Donovan (Claimant), and to reinstate Claimant's total disability status as of November 13, 2017.
This appeal arises in the context of a series of related decisions of this Court concerning the contours of the Pennsylvania Workers’ Compensation Act (Act or Workers’ Compensation Act)2 in the wake of our holding in Protz v. Workers’ Compensation Appeal Board (Derry Area School District) , 124 A.3d 406 (Pa. Cmwlth. 2015) (en banc ) ( Protz I ), and our Supreme Court's decision to strike the entirety of section 306(a.2)3 of the Act as unconstitutional in Protz v. Workers’ Compensation Appeal Board (Derry Area School District) , 639 Pa. 645, 161 A.3d 827 (2017) ( Protz II ). Also relevant to this appeal are the precedents that have emerged in light of our legislature's response via Act 111 in 2018, and its addition of section 306(a.3) of the Act, 77 P.S. § 511.3. Because recent holdings of this Court support the Board's decision in all respects, we affirm.
Background
The material facts, as found by the WCJ and summarized by the Board, are not in dispute. Claimant worked for Employer as a career firefighter. On July 24, 2010, Claimant sustained a work-related injury to both of his shoulders. Employer issued a Notice of Compensation Payable, acknowledging Claimant's total disability status and that he would receive benefits concurrently under the Workers’ Compensation Act and the Act commonly known as the Heart and Lung Act.4 (Reproduced Record (R.R.) at 61a-62a.)
On January 25, 2013, Claimant underwent an impairment rating evaluation (IRE) pursuant to former section 306(a.2) of the Act, conducted by Dr. M. Bud Lateef. In accordance with the Act as it then provided, Dr. Lateef utilized the Sixth Edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (Guides ). Dr. Lateef determined Claimant had a 15% whole person impairment.5 (R.R. at 116a-17a.) As this was below the 50% impairment necessary for a presumption of total disability status under former section 306(a.2)(2), Claimant and Employer stipulated that Claimant's disability status would be changed from total to partial effective January 25, 2013.6 The parties’ stipulation was approved by WCJ Linda Tobin on October 7, 2013.
In 2015, this Court issued our decision in Protz I , wherein we held that the IRE provision of former section 306(a.2) of the Act was an unconstitutional delegation of legislative power, inasmuch as it purported to adopt new versions of the Guides without legislative review. Protz I , 124 A.3d at 417. On June 20, 2017, the Pennsylvania Supreme Court affirmed our ruling with regard to nondelegation, but further concluded that the offending language—"the most recent edition" of the Guides —could not be severed from the Act, rendering the entirety of former section 306(a.2) unconstitutional. Protz II , 161 A.3d at 840-41. In response to Protz II , the General Assembly ultimately added section 306(a.3) to the Workers’ Compensation Act, via Act 111, which specifies that IREs are to be conducted "pursuant to the American Medical Association ‘Guides to the Evaluation of Permanent Impairment,’ 6th edition (second printing April 2009)" (Sixth Edition of the Guides ).7 Section 306(a.3)(1) of the Act, 77 P.S. § 511.3(1).
On November 13, 2017, following our Supreme Court's decision in Protz II , and before Claimant's 500 weeks of partial disability benefits had expired, Claimant filed the instant Modification and Review Petitions. Claimant contended his impairment rating, which was ascertained pursuant to the Sixth Edition of the Guides , was invalid under Protz II . Claimant sought reinstatement of his total disability status.
WCJ Minnich held a hearing on Claimant's Petitions on August 23, 2018. In support of his position, Claimant testified that, despite undergoing surgery on both of his shoulders and receiving physical therapy, his symptoms had worsened over time. (Notes of Testimony, 8/23/2018 (N.T.), at 11-14; R.R. at 34a-37a.) Specifically, Claimant testified that he continues to suffer from a loss of strength, an increase in pain, and an inability to lift objects above his head. (N.T. at 14-16; R.R. at 37a-39a.) Claimant explained that he had a job doing light-duty cleaning of condominium units for a period of two years, but he had to stop because of his shoulder problems. (N.T. at 18-19; R.R. at 41a-42a.) Claimant additionally testified that he had attempted to find a job he could perform despite his medical restrictions, but had not received any offers. (N.T. at 22-24; R.R. at 45a-47a.) In order for Employer to defend against Claimant's petitions, WCJ Minnich permitted Employer to obtain an independent medical examination (IME) of Claimant to assess the status of his injury; however, he did not allow Employer to develop vocational evidence relating to Claimant's earning power.
By a decision and order circulated on May 14, 2019, WCJ Minnich granted Claimant's Modification and Review Petitions. The WCJ found Claimant's testimony credible and determined that his work-related disability continued. (WCJ Decision at 4; R.R. at 77a.) The WCJ noted that Claimant's "description of his ongoing disability was not rebutted, or sharply challenged." Id. The WCJ concluded that Claimant thus met his burden to establish "disability" as required by this Court's intervening decision in Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC) , 188 A.3d 599 (Pa. Cmwlth. 2018) (en banc ). The WCJ accordingly reinstated Claimant's total disability status effective November 13, 2017—the date Claimant filed his Petitions. The WCJ further rejected Employer's argument that Claimant's 2013 IRE remains in effect under Act 111, and that his 15% impairment rating under that IRE renders him ineligible for total disability status. The WCJ reasoned that the 2013 IRE was conducted under former section 306(a.2) of the Act, which was held unconstitutional in Protz II and subsequently repealed. (WCJ Decision at 4; R.R. at 78a.) Moreover, because Act 111 provided for retroactive consideration of earlier periods of total disability in some contexts but did not provide for retroactive effect of IREs conducted under the prior unconstitutional scheme, the WCJ found no basis to give Claimant's 2013 IRE continuing legal effect. Id.
Employer appealed to the Board. Employer challenged the WCJ's reliance upon Whitfield , which Employer contended was wrongly decided. The Board found no error in the WCJ's application of Whitfield , and, to the extent Employer argued against its holding generally, the Board recognized Whitfield as a binding precedent from which it was not entitled to depart. Employer further argued that Claimant waived any constitutional defect in his 2013 IRE by failing to raise it earlier. Rejecting this assertion, the Board observed that the claimant in Whitfield likewise did not challenge the constitutionality of her IRE until after Protz I was decided, and this Court held that her challenge was timely because she petitioned for reinstatement within three years from the date of the last payment of compensation, as permitted by section 413(a) of the Act, 77 P.S. § 772. The Board additionally cited Timcho v. Workers’ Compensation Appeal Board (City of Philadelphia) , 192 A.3d 1219 (Pa. Cmwlth. 2018) (en banc ), in which this Court expressly rejected the assertion of waiver under similar circumstances. Here, the Board noted, Claimant filed his Petitions before his partial disability benefits expired, rendering his challenge timely under section 413(a) of the Act.
Employer further challenged the WCJ's refusal to allow it to develop vocational evidence in order to establish Claimant's earning power. The Board found no error in that decision, noting that Whitfield discussed a distinction between a disability determination based upon earning power and one based upon an impairment rating . It would not make sense to require evidence of changed earning power, Whitfield explained, "for claimants whose change in disability status was never based on either a change in earning power or a change in physical condition, but solely on an impairment rating." (Board Decision at 6; R.R. at 111a (quoting Whitfield , 188 A.3d at 615 ).) The Board concluded that evidence relating to Claimant's earning power would not affect the determination, because his disability status was based upon his impairment rating rather than his earning power.
Finally, Employer argued that, under Act 111, Claimant's 2013 IRE should remain in effect, rendering Claimant ineligible for total disability status, unless and until he demonstrates he has a whole body impairment rating equal to or greater than 35% under the Sixth Edition of the Guides .8 The Board found no error in the WCJ's decision to the contrary. The Board observed that Claimant's 2013 IRE was conducted pursuant to the provision of the Act held unconstitutional in Protz II , and, although Act 111 provides for IREs to be conducted under the Sixth Edition of the Guides , there is no indication the applicable provisions of Act 111 were intended to apply retroactively to IREs conducted before the effective...
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