Timcho v. Workers' Comp. Appeal Bd.
Decision Date | 17 August 2018 |
Docket Number | No. 158 C.D. 2017,158 C.D. 2017 |
Citation | 192 A.3d 1219 |
Parties | Edward J. TIMCHO, Jr., Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (CITY OF PHILADELPHIA), Respondent |
Court | Pennsylvania Commonwealth Court |
Joseph L. Ring, Philadelphia, for petitioner.
Stephen J. Fireoved and Barak Kassutto, Eagleville, for respondent.
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY PRESIDENT JUDGE LEAVITT
Edward J. Timcho, Jr., (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) dismissing his petition for reinstatement of benefits under the Workers' Compensation Act (Act).1 In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant had already litigated to finality the modification of his disability status from full to partial and failed to raise the issue of the constitutionality of his impairment rating evaluation (IRE) in that litigation. Claimant contends the Board erred in deeming his constitutional claim waived. We agree and will vacate the Board's order and remand for further proceedings before the WCJ.
On May 20, 2008, Claimant sustained a work-related injury while transporting a prisoner for the City of Philadelphia (Employer). Employer accepted liability for a work-related myocardial infarction pursuant to a Notice of Compensation Payable and Claimant began receiving temporary total disability benefits. On November 11, 2008, Claimant filed a claim petition. On May 27, 2010, WCJ Patricia Bachman issued a decision granting Claimant temporary total disability benefits for an injury described as a "heart attack and residual heart damage." Reproduced Record at 9a (R.R. ––––).
Thereafter, Employer requested that Claimant undergo an impairment rating evaluation (IRE). On July 25, 2011, Dr. Lance Yarus, D.O., examined Claimant and issued an IRE report based on the Sixth Edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA Guides). The IRE report determined that Claimant's impairment rating was 32%. As a result, Employer filed a modification petition on August 18, 2011, seeking to change Claimant's compensation status from total disability to partial disability.
On July 23, 2013, WCJ Lawrence C. Beck granted Employer's modification petition pursuant to former Section 306(a.2) of the Act2 because Claimant's permanent impairment rating was below 50%. Claimant appealed WCJ Beck's decision to the Board. The Board affirmed. Claimant petitioned this Court for review.
Claimant's sole argument before this Court was that the Board erred in affirming WCJ Beck's decision granting Employer's modification petition because Dr. Yarus had not complied with the Sixth Edition AMA Guides. Specifically, he did not order or conduct diagnostic tests as part of his IRE. Claimant did not challenge the constitutionality of Section 306(a.2) of the Act in response to Employer's petition to modify his status from full to partial disability on the basis of an IRE.
On January 27, 2016, this Court affirmed the modification of Claimant's benefits. Timcho v. Workers' Compensation Appeal Board (City of Philadelphia) (Pa. Cmwlth., No. 756 C.D. 2015, 2016 WL 379544, filed January 27, 2016) ( Timcho I ). We held that the relevant section of the Sixth Edition AMA Guides did "not contain a directive regarding the necessity to perform objective tests in the process of conducting an IRE and [did] not include any direction regarding the timing of such tests." Id. , slip op. at 12. Stated otherwise, Dr. Yarus complied with the Sixth Edition AMA Guides by using the report of another physician and diagnostic testing performed in 2009 to render his IRE rating. Claimant did not seek review of this Court's decision in Timcho I .
On January 5, 2016, prior to the issuance of this Court's decision in Timcho I , Claimant filed a reinstatement petition asserting that his total disability benefits should be reinstated in light of this Court's holding in Protz v. Workers' Compensation Appeal Board (Derry Area School District) , 124 A.3d 406 (Pa. Cmwlth. 2015) ( Protz I ), that Section 306(a.2) of the Act was "an unconstitutional delegation of legislative authority insofar as it prospectively approved versions of the AMA Guides beyond the Fourth Edition without review." Protz I , 124 A.3d at 416 (emphasis omitted). Under Protz I , Claimant argued, his IRE was unconstitutional because Dr. Yarus had relied on the Sixth Edition AMA Guides. In response, Employer filed a motion to dismiss Claimant's reinstatement petition, arguing that Claimant was precluded from raising a constitutional challenge to his IRE because he had not raised or preserved that issue in his appeal to this Court in Timcho I .
On July 1, 2016, WCJ Bachman granted Employer's motion and denied and dismissed Claimant's reinstatement petition. In doing so, WCJ Bachman concluded that:
Claimant is precluded from raising and pursuing his constitutional challenge to Section 306(a.2) of the Act by way of Reinstatement Petition before this Court as Claimant failed to raise and preserve his constitutional challenge to said Section in his Petition for Review and Brief to the Commonwealth Court relative to litigation of an underlying Modification Petition which modified his benefits based on an Impairment Rating Evaluation.
WCJ Bachman Decision at 5; R.R. 37a. On review, the Board affirmed. Claimant then petitioned this Court for review.
On appeal,3 Claimant argues that the Board and WCJ Bachman erred by dismissing his reinstatement petition. Claimant argues that the modification of his benefit status was based upon an unconstitutional IRE. Claimant argues further that he did not waive this constitutional challenge by not raising it in Timcho I . He maintains that a reinstatement petition is a proper vehicle for taking advantage of this Court's Protz I ruling. Moreover, Claimant argues that Protz I should apply retroactively and his benefits should be reinstated.
Employer responds that WCJ Bachman properly dismissed Claimant's reinstatement petition because he was required to raise and preserve his constitutional challenge to Section 306(a.2) in Timcho I , when the Board, and this Court, considered Claimant's challenge to the modification of his benefit status. In that proceeding, he challenged the IRE on other grounds, i.e. , Dr. Yarus's failure to comply with the AMA Guides. Claimant did not raise a constitutional issue. Employer contends that because Claimant waived the Protz I issue, was precluded from raising it in a subsequently filed reinstatement petition.
While Claimant's challenge to the dismissal of his reinstatement petition was pending in this Court, the Supreme Court issued its decision in Protz II . The Supreme Court affirmed this Court's holding that the prospective approval of versions of the AMA Guides in Section 306(a.2) of the Act constituted an unconstitutional delegation of legislative authority. However, the Supreme Court disagreed with our conclusion that the offending provision could be severed from the Act. Instead, the Supreme Court held all of Section 306(a.2) of the Act to be unconstitutional. In doing so, it "essentially struck the entire IRE process from the Act." Thompson v. Workers' Compensation Appeal Board (Exelon Corp.) , 168 A.3d 408, 413 (Pa. Cmwlth. 2017). As a result, the Act no longer contains a provision allowing for modification of benefits based on an IRE.
Turning to the case sub judice , the question is whether Claimant can raise the constitutionality of his IRE for the first time in a reinstatement petition. He could have raised the issue in his modification appeal in Timcho I , but he did not do so.
Employer maintains that Claimant's constitutional challenge is barred by the doctrine of administrative finality. Under the doctrine of administrative finality, as a general rule, "[a] party cannot avoid the requirement to exhaust administrative remedies merely by raising a constitutional challenge to the validity of a statute[.]" Larry Pitt & Associates, P.C. v. Butler , 785 A.2d 1092, 1099 (Pa. Cmwlth. 2001). This Court has explained that "[t]he doctrine of administrative finality precludes a collateral attack of an administrative action where the party aggrieved by that action foregoes his statutory appeal remedy." Department of Environmental Protection v. Peters Township Sanitary Authority , 767 A.2d 601, 603 (Pa. Cmwlth.), petition for allowance of appeal denied , 566 Pa. 687, 784 A.2d 120 (2001). Essentially, Claimant seeks to relitigate Timcho I on a new theory. Claimant responds that the finality doctrine is inapplicable and that a reinstatement petition allows a case to be reopened on any grounds.
The issues raised by the parties have been resolved by this Court's recent decision in Whitfield v. Workers' Compensation Appeal Board (Tenet Health System Hahnemann LLC) , 188 A.3d 599, 2018 WL 2701272 (Pa. Cmwlth. 2018), which followed a procedural path similar to that in the instant case. In Whitfield , the claimant, Paulette Whitfield, underwent an IRE in 2006. The IRE physician, using the Fifth Edition AMA Guides, concluded that her impairment rating was 44%. Based on the IRE, a WCJ modified Whitfield's status from total to partial disability. Whitfield appealed, but she did not challenge the constitutionality of the IRE. The Board affirmed on June 1, 2009, and Whitfield took no further appeal. Whitfield's 500 weeks of partial disability benefits expired in 2015, the same year that Protz I was decided.
On November 13, 2015, Whitfield filed a petition to reinstate her total disability benefits, citing Protz I . At hearings on the reinstatement petition, Whitfield testified that she had been unable to work at all since her surgery in 2002 and did not believe she was fully recovered...
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