Cnty. of Allegheny v. Workers' Comp. Appeal Bd.

• Decision Date: 29 April 2021
• Docket Number: No. 486 C.D. 2020,486 C.D. 2020
• Citation: 253 A.3d 1232
• Court: Pennsylvania Commonwealth Court
• Parties: COUNTY OF ALLEGHENY and UPMC Benefit Management Services, Inc., Petitioners v. WORKERS’ COMPENSATION APPEAL BOARD (Butkus), Respondent

253 A.3d 1232

COUNTY OF ALLEGHENY and UPMC Benefit Management Services, Inc., Petitioners

v.WORKERS’ COMPENSATION APPEAL BOARD (Butkus), Respondent

No. 486 C.D. 2020

Commonwealth Court of Pennsylvania.

Submitted on Briefs December 18, 2020

Decided April 29, 2021

Bradley R. Andreen, Pittsburgh, for Petitioner.

Mark G. Essey, Beaver, for Respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge,¹ HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE FIZZANO CANNON

The County of Allegheny, together with UPMC Benefit Management Services, Inc. (jointly, Employer), petitions for review of an order of the Workers’ Compensation Appeal Board (Board) dated April 30, 2020, affirming the order of a workers’ compensation judge (WCJ). The WCJ granted the Petition to Modify Compensation Benefits (Modification Petition) filed by Stanley Butkus (Claimant), seeking to change his partial disability status to total disability. The WCJ reinstated Claimant's total disability status as of September 1, 2016, the date on which Claimant filed the Modification Petition, in accordance with this Court's decision in Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC) , 188 A.3d 599 (Pa. Cmwlth. 2018). Upon review, we affirm the Board's order.

I. Background

In September 2006, Claimant was injured in the scope of his employment. Certified Record (C.R.) Item #7 (WCJ Op. & Order 5/24/19) at 1. Employer accepted the injury by a Medical-Only Notice of Compensation Payable in February 2007, effective as of the day after Claimant's injury.² Id.

In subsequent litigation concerning the scope of the work injury and Claimant's continuing symptoms, the WCJ concluded in May 2009 that Claimant suffered right foot and ankle injuries resulting in ongoing reflex sympathetic dystrophy.³ C.R. Item #7 (WCJ Op. & Order 5/24/19) at 1. The WCJ concluded Claimant's ongoing back problems were not work-related. Id. The Board affirmed that decision. Id.

In August 2011, an impairment rating evaluation (IRE) of Claimant was performed at Employer's request, and Claimant was assigned an impairment rating of 10% based on the guidelines in the Sixth Edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA Guides ). C.R. Item #40 (Impairment Rating Determination 8/3/11) at 2. Accordingly, in October 2011, the WCJ issued a modification of Claimant's status from total to partial disability⁴ as of the date of the IRE. C.R. Item #43 (WCJ Op. & Order 10/14/11) at 2.

In September 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 , 639 Pa. 645, 161 A.3d 827 (2017) ( Protz II ). In Protz I , this Court found that former Section 306(a.2) of the Workers’ Compensation Act (WC Act), former 77 P.S. § 511.2(2), providing for IREs with reference to the most recent edition of the AMA Guides , constituted an unconstitutional delegation of legislative authority because it essentially adopted each new edition of the AMA Guides without legislative review. See Protz I , 124 A.3d at 417. Therefore, in Protz I and subsequent cases where the issue was preserved, this Court vacated decisions where changes in disability status had been based on IREs performed using the Fifth or later edition of the AMA Guides and remanded those matters for application of the Fourth Edition of the AMA Guides , the edition in effect when former Section 306(a.2) was enacted. Whitfield , 188 A.3d at 601.

As noted above, former Section 306(a.2)(2) provided that an impairment rating of less than 50% would trigger a modification of a claimant's disability status from total to partial disability. On September 1, 2016, Claimant filed the Modification Petition, seeking a change of his disability status from partial disability back to total disability based on this Court's decision in Protz I . C.R. Item #2.

Our Supreme Court granted allocatur in Protz I on March 22, 2016, several months before Claimant filed the Modification Petition. See Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.) , 635 Pa. 198, 133 A.3d 733 (2016). In June 2017, while Claimant's Modification Petition was pending, our Supreme Court decided that appeal. See Protz II . In Protz II , the Supreme Court affirmed this Court's conclusion regarding the unconstitutional delegation of legislative authority, but found the language in former Section 306(a.2) applying the most recent edition of the AMA Guides could not be severed from the rest of former Section 306(a.2); therefore, the Supreme Court ruled that former Section 306(a.2) was invalid in its entirety. Protz II , 161 A.3d at 840-41.

In October 2018, several months after this Court's decision in Whitfield , Governor Wolf signed into law Act 111 of 2018 (Act 111),⁵ adding Section 306(a.3) of the WC Act, 77 P.S. § 511.3. Act 111 altered the criteria for determining whether a claimant's disability is total or partial, providing that an impairment rating of 35% or more would constitute total disability. Section 306(a.3)(2) of the WC Act, 77 P.S. § 511.3(2). Act 111 also provided that future IREs are to be performed pursuant to the Sixth Edition, second printing (April 2009) of the AMA Guides . Section 306(a.3)(1) of the WC Act, 77 P.S. § 511.3(1). Notably, Section 306(a.3)(2), added by Act 111, also reenacted the 60-day limitations period for challenging status modifications that had previously applied under former Section 306(a.2)(2). See 77 P.S. § 511.3(2).

On May 24, 2019, the WCJ granted Claimant's requested modification from partial to total disability status as of the date of the Modification Petition. C.R. Item #7 (WCJ Op. & Order 5/24/19) at 8. Employer appealed the WCJ's order to the Board, which affirmed the WCJ. C.R. Item #10 (Bd. Order 4/4/20) at 8. Employer then petitioned for review by this Court.

II. Issues

Employer raises three issues in its petition for review before this Court, which we paraphrase as follows:⁶

1. The Board erred in affirming the reinstatement of Claimant's total disability benefits in reliance on Whitfield , because Whitfield erroneously applied Section 413(a) of the WC Act to grant relief allowed only under former Section 306(a.2).

2. The Board erred in affirming the reinstatement of Claimant's total disability benefits, where the WCJ failed to allow Employer to present evidence concerning Claimant's earning power.

3. The Board erred in affirming the reinstatement of Claimant's total disability benefits, where the WCJ and the Board improperly applied Protz II retroactively.

Pet. for Rev. at 8. Employer asserts related sub-arguments concerning waiver, law of the case, laches, and Claimant's burden to demonstrate that his work injury continues in order to obtain modification to total disability status.

III. Discussion

A. Time Limit to Challenge Modification

"In the intervening time between Protz I and Protz II , a number of claimants whose disability status had been modified based on what are now considered unconstitutional IREs ... filed petitions seeking to have their status reinstated from partial disability to total disability." Whitfield , 188 A.3d at 602. Claimant here, like those referenced in Whitfield , filed his Modification Petition after this Court's decision in Protz I and before our Supreme Court's decision in Protz II . Also, like the claimant in Whitfield , Claimant here sought a reinstatement of his total disability status because the 2011 modification of his status to partial disability was based on an IRE performed under a later edition of the AMA Guides , rather than the Fourth Edition as mandated by this Court's decision in Protz I . Claimant's circumstances are therefore closely analogous to those of the claimant in Whitfield .

This Court in Whitfield encapsulated its decision as follows:

At issue before us is whether [the c]laimant is entitled to the benefit of Protz II when her disability status had been modified in 2008 and she had not challenged the constitutionality of the IRE upon which the modification was based for more than seven years. Because [the c]laimant filed her Petition to Reinstate ... within three years of the date of the most recent payment of compensation, we hold she has a statutory right to seek reinstatement under Section 413(a) of the WC Act, 77 P.S. § 772 .

Id. at 602 (emphasis added).

This case presents the same issue. Claimant's disability status was modified in 2011. Like the Whitfield claimant, he did not challenge the constitutionality of the 2011 IRE and resulting modification until several years later. Nonetheless, because he is still receiving wage benefits, he has, by definition, asserted his challenge within three years after the last payment of compensation. Therefore, if Whitfield applies here, it is dispositive of Employer's petition for review.

Employer argues, however, that Whitfield is not applicable to this matter. Employer asserts that Whitfield was wrongly decided under Section 413(a) instead of Section 306(a.2) of the WC Act. We disagree. At the time this Court decided Whitfield , our Supreme Court's decision in Protz II had invalidated former Section 306(a.2) of the WC Act in its entirety, including the 60-day limit in Section 306(a.2)(2) for seeking review of a modification decision. However, Act 111, which reinstated the 60-day limit by adding Section 306(a.3)(2) to the WC Act, had not yet been enacted. Therefore, in Whitfield , there was no 60-day statutory time limit for this Court to apply. See Whitfield , 188 A.3d at 611. In considering what, if any, time limit would apply, this Court concluded that Section 413(a), which allows modification requests until three years after the last payment of compensation, was the applicable limitation on challenges to modifications of claimants’ status from total to partial disability. Id. at 617.

Here, however, Claimant's Modification...