Hutchinson v. Annville Twp.
| Decision Date | 09 August 2021 |
| Docket Number | Nos. 16 & 17 C.D. 2021,s. 16 & 17 C.D. 2021 |
| Citation | 260 A.3d 360 |
| Parties | John HUTCHINSON, Petitioner v. ANNVILLE TOWNSHIP (Workers' Compensation Appeal Board), Respondent |
| Court | Pennsylvania Commonwealth Court |
John J. Stanzione, West Chester, for Petitioner.
Michael J. Crocenzi, York, for Respondent.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY JUDGE FIZZANO CANNON
John Hutchinson (Claimant) petitions for review from two orders of the Workers' Compensation Appeal Board (Board). The Board affirmed two orders of a workers' compensation judge (WCJ) reinstating Claimant's temporary total disability benefits as of March 2017 and granting Employer's modification petition as of January 2019. The two matters have been consolidated in this Court. Upon review, we affirm the Board's orders.
In June 2006, while employed by Annville Township (Employer), Claimant sustained a work-related fracture of his leg. Certified Record (C.R.) A20-0173 Item 5 at 3.1 He received workers' compensation benefits for temporary total disability. Id. In June 2009, at Employer's behest, Claimant underwent an impairment rating examination (IRE). Id . The examination resulted in a whole person disability rating of less than 50%2 based on the impairment rating guidelines provided in the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (Guides ).3 Id . Based on the outcome of the IRE, Employer filed a petition to modify Claimant's status from temporary total disability to partial disability (2009 modification petition).4 Id . In February 2010, a WCJ granted the 2009 modification petition, effective as of the June 2009 date of the IRE (2009 modification). Id . Claimant did not appeal the 2009 modification. Id .
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 , 639 Pa. 645, 161 A.3d 827 (2017) ( Protz II ). In Protz I , we held that former Section 306(a.2) of the Workers' Compensation Act, formerly 77 P.S. § 511.2, impermissibly delegated legislative authority by providing that IREs were to be conducted pursuant to the most recent edition of the Guides . Protz I , 124 A.3d at 416. Rather than declare the entire provision invalid, however, this Court severed the language relating to the most recent edition of the Guides and concluded that future IREs should be conducted pursuant to the Fourth Edition, which was in effect at the time the legislature enacted former Section 306(a.2). Id .
In June 2017, the Pennsylvania Supreme Court issued its decision in Protz II . The Supreme Court upheld this Court's conclusion that the legislature improperly delegated its lawmaking authority to the AMA by providing for reference to the most recent version of the Guides . Protz II , 161 A.3d at 841. However, the Supreme Court reversed this Court's ruling that the Fourth Edition of the Guides should apply. Protz II , 161 A.3d at 841. Concluding that the defective provision could not reasonably be severed, our Supreme Court held former Section 306(a.2) was invalid in its entirety. Protz II , 161 A.3d at 841.
In response to our Supreme Court's decision in Protz II , the legislature enacted Act 111,5 adding Section 306(a.3)(1) to the Workers' Compensation Act. Under Act 111, IREs shall be conducted pursuant to the Sixth Edition of the Guides , second printing (2009). 77 P.S. § 511.3(1).6
Meanwhile, in March 2017, while the appeal of Protz I was pending in our Supreme Court, Claimant filed a reinstatement petition seeking to change his disability status from partial back to total disability based on the holding of Protz I . C.R. A20-0173 Item 5 at 4. In November 2017, a WCJ granted Claimant's reinstatement petition retroactive to the date of the 2009 modification. C.R. A20-0173 Item 10 at 2. Employer appealed the WCJ's reinstatement order to the Board. In February 2019, the Board issued an order remanding the matter to the WCJ to determine whether Claimant could show he was still disabled as a result of his work injury. C.R. A20-0173 Item 5 at 5 (citing Protz II ; Whitfield v. Workers' Comp. Appeal Bd. (Tenet Health Sys. Hahnemann LLC) , 188 A.3d 599 (Pa. Cmwlth. 2018) ).
While his reinstatement petition was pending, Claimant underwent another IRE in January 2019, again at Employer's behest, in conformity with the Sixth Edition of the Guides , second printing, as required by Act 111. C.R. A20-0173 Item 17. That examination yielded an impairment rating of 3%. C.R. A20-0173 Item 5 at 7; C.R. A20-0173 Item 17 at 3. Employer filed a new modification petition (2019 modification petition), which was consolidated with Claimant's reinstatement petition. C.R. A20-0173 Item 2.
In February 2020, the WCJ issued two identical orders granting Claimant's reinstatement petition effective as of the date Claimant filed the reinstatement petition in March 2017 and granting Employer's 2019 modification petition effective as of the date of the new IRE in January 2019 (2019 modification). C.R. A20-0173 Item 5 at 8; C.R. A20-0175 Item 5 at 7. Both parties appealed to the Board. C.R. A20-0173 Items 6 & 8; C.R. A20-0175 Items 6 & 8.
Claimant argued that the January 2019 IRE was premature because it preceded a decision on the reinstatement petition regarding his disability status. C.R. Item 6 at 2. Additionally, Claimant contended that the IRE was performed under an unconstitutional statute, Act 111, and therefore could not support the 2019 modification of his status. Id. Claimant posited that Act 111 was unconstitutional because it (1) delegated legislative authority to a private entity, (2) applied to injuries predating its enactment, and (3) applied improper credit to employers toward the waiting time required before requesting an IRE.7 Id.
Employer argued the WCJ erred in applying Protz II to Claimant's reinstatement petition because Claimant did not appeal the 2009 modification and therefore failed to preserve any challenge to the constitutionality of former Section 306(a.2). C.R. A20-0173 Item 10 at 4. Employer further asserted that Protz II could not apply retroactively, so Claimant's benefits could not be reinstated as of a date preceding the Supreme Court's decision in Protz II . C.R. A20-0173 Item 10 at 4. In addition, Employer contended that Whitfield , in which this Court held that a claimant could seek reinstatement within three years after the most recent payment of workers' compensation benefits, did not apply to this case to render Claimant's reinstatement petition timely. C.R. A20-0173 Item 10 at 4.
In December 2020, the Board affirmed the WCJ's orders. C.R. A20-0173 Item 10. Regarding Claimant's reinstatement petition, the Board concluded this case is governed by Whitfield and White v. Workers' Compensation Appeal Board (City of Philadelphia) , 237 A.3d 1225 (Pa. Cmwlth. 2020). Because Claimant was still receiving partial disability benefits at the time he filed the reinstatement petition, that petition was timely, but reinstatement was effective only as of the date of the reinstatement petition, not as of the 2009 modification. C.R. A20-0173 Item 10 at 1-13; see White , 237 A.3d at 1230-31 ; Whitfield , 188 A.3d at 617. Regarding Employer's 2019 modification petition, the Board employed the analytical framework set forth in Bechtel Power Corp. v. Workmen's Compensation Appeal Board (Miller) , 70 Pa.Cmwlth. 6, 452 A.2d 286 (1982), and concluded the modification petition was not premature. C.R. A20-0173 Item 10 at 8-10. Citing Pennsylvania AFL-CIO v. Commonwealth , 219 A.3d 306 (Pa. Cmwlth. 2019), aff'd per curiam (Pa., No. 88 MAP 2019, filed Aug. 18, 2020), the Board also determined that Act 111 does not improperly delegate legislative authority to the AMA. C.R. A20-0173 Item 10 at 10.
Claimant timely petitioned for further review of the Board's orders.8 The petitions for review have been consolidated in this Court.
Claimant first asserts that he is entitled to reinstatement of his total disability status as of the date of the 2009 modification, rather than the date of his reinstatement petition. We discern no merit in this assertion.
In Whitfield , the claimant sought reinstatement of total disability status after our decision in Protz I , arguing, like Claimant here, that because the modification from total to partial disability was based on an IRE performed under an invalid statute, total disability status should be reinstated. Whitfield , 188 A.3d at 612. This Court concluded that if the claimant demonstrated entitlement to total disability status, reinstatement was proper as of the date of the reinstatement petition, and such reinstatement did not mean that Protz I was being applied retroactively. Whitfield , 188 A.3d at 617.
Subsequently, in White , this Court specifically addressed the proper reinstatement date under circumstances similar to those in this case. The claimant in White filed a reinstatement petition after our decision in Protz I and sought reinstatement as of the original modification date, but the Board concluded reinstatement was appropriate only from the date of the claimant's reinstatement petition. White , 237 A.3d at 1230-31. We affirmed, explaining that because the claimant had not appealed the original modification, she was entitled to reinstatement only as of the date of her reinstatement petition, not the date her status had been modified from total to partial disability. Id. at 1231.
Despite Claimant's assertion to the contrary, White is squarely applicable here and governs our disposition of the issue in this case. Like the claimant in White , Claimant here did not appeal the original modification of his disability status from total to partial disability. Like the claimant in White , after this Court's decision in Protz I ...
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