Weidenhammer v. Workers' Comp. Appeal Bd.

• Decision Date: 14 May 2020
• Docket Number: No. 546 C.D. 2019,546 C.D. 2019
• Citation: 232 A.3d 986
• Parties: Patricia WEIDENHAMMER, Petitioner v. WORKERS’ COMPENSATION APPEAL BOARD (Albright College), Respondent
• Court: Pennsylvania Commonwealth Court

232 A.3d 986

Patricia WEIDENHAMMER, Petitioner

v.WORKERS’ COMPENSATION APPEAL BOARD (Albright College), Respondent

No. 546 C.D. 2019

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 24, 2020

Decided May 14, 2020

Andrew F. Ruder, Philadelphia, for Petitioner.

Michael J. Foley, Scranton, for Amicus Curiae Pennsylvania Association for Justice.

Paul Cacciamani, Lemoyne, for Respondent.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ANNE E. COVEY, Judge

OPINION BY PRESIDENT JUDGE LEAVITT

Patricia Weidenhammer (Claimant) petitions for review of an adjudication of the Workers’ Compensation Appeal Board (Board) denying her request for a reinstatement of disability compensation under the Workers’ Compensation Act (Act).¹ In so doing, the Board affirmed the decision of the Workers’ Compensation Judge (WCJ) that Claimant had no right to compensation because more than three years had elapsed since her last payment of disability compensation. Claimant argues that this Court should construe the holding in Protz v. Workers’ Compensation Appeal Board (Derry Area School District) , 639 Pa. 645, 161 A.3d 827 (Pa. 2017) ( Protz II ) to be fully retroactive. As such, Claimant contends the holding in Protz II automatically restored her total disability compensation.² For the following reasons, we affirm the Board.

Background

The facts are not in dispute. On November 9, 2001, while working for Albright College (Employer), Claimant fell, sustaining knee contusions that aggravated her bilateral degenerative joint disease. The aggravation necessitated bilateral knee replacement surgery. In 2003, Claimant was awarded total disability compensation as of the date of injury.

On April 5, 2004, Employer requested the Bureau of Workers’ Compensation to designate a physician to perform an impairment rating evaluation (IRE) of Claimant. On May 5, 2004, David Baker, M.D., did the requested IRE, using the Fifth Edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA Guides). Dr. Baker's IRE concluded that Claimant had a whole body impairment of 36%. Because the IRE rating was less than 50%, Claimant's disability status automatically changed from total to partial as of March 26, 2004.³

Claimant attended the IRE without objection; did not file a petition to review its accuracy; and did not challenge the change in her disability status. WCJ Decision, 4/24/2018, Findings of Fact Nos. 5-6, at 4. On December 3, 2013, Claimant exhausted her 500 weeks of partial disability benefits and received her final payment of disability compensation. Id. , Finding of Fact No. 8, at 4.

On October 17, 2017, Claimant filed a petition to reinstate her disability compensation for the stated reason that in Protz II the Pennsylvania Supreme Court had declared Section 306(a.2) of the Act unconstitutional. Claimant argued that because the 2004 change in her disability status had been authorized by Section 306(a.2), her right to total disability compensation was automatically restored by our Supreme Court's ruling.

The WCJ denied Claimant's reinstatement petition. Section 413(a) of the Act, 77 P.S. § 772, requires a reinstatement petition to be filed "within three years after the date of the most recent compensation," and Claimant had filed her reinstatement petition almost four years after her last payment. WCJ Decision, 4/24/2018, Finding of Fact No. 9, at 4. The WCJ further reasoned that Protz II had an effect only for those claimants with a case in active litigation, which did not include Claimant.

Claimant appealed to the Board. Relying upon Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC) , 188 A.3d 599 (Pa. Cmwlth. 2018) (en banc ), the Board affirmed the WCJ. In Whitfield, this Court held that claimants who wished to take advantage of the holding in Protz II had to file an appropriate petition. The claimant in Whitfield did so by filing a reinstatement petition within three years of the date of the last payment of compensation in accordance with Section 413(a) of the Act, 77 P.S. § 772. By contrast, here, Claimant filed her reinstatement petition outside the three-year deadline.

Appeal

Claimant has petitioned for this Court's review and raises one issue.⁴ Claimant argues that the Pennsylvania Supreme Court's decision in Protz II voided her IRE ab initio ; thus, she is entitled to a reinstatement of total disability compensation. Alternatively, Claimant contends that Whitfield was wrongly decided and should be overruled.

Analysis

I.

We begin with a review of the principles that govern the implementation of a new rule of law. The Pennsylvania Supreme Court has recognized four different ways a new principle of law can apply to litigants. Blackwell v. State Ethics Commission , 527 Pa. 172, 589 A.2d 1094 (1991) ( Blackwell III ). First, the court can apply the new rule only to future litigants, not even to the parties in the case that occasioned the announcement of the new law. The Court termed this application "purely prospective." Id. at 1098. Second, the court can apply the new rule only to the parties to the case in which the new rule is announced. Third, the court can apply the new rule to all parties in all cases still pending at the time it is announced. Fourth, the court can apply the new rule in what it termed a "fully retroactive" way:

Under this fourth choice, the new rule is applied to the case in which it is announced, to all cases pending at the time the new rule is announced, and to cases which are final at the time the new rule is announced .

Id . at 1099 (emphasis added). Fully retroactive application "relates back to and gives a previous transaction a legal effect different from that which it had under the law in effect when it transpired."

Department of Labor and Industry, Bureau of Employment Security v. Pennsylvania Engineering Corporation , 54 Pa.Cmwlth. 376, 421 A.2d 521, 523 (1980).

As a general rule, Pennsylvania courts apply the law that is in effect at the time the case is decided, i.e. , the above-listed third application. Blackwell III , 589 A.2d at 1099. The general rule allows a litigant whose appeal is still pending to receive the benefit of any changes in the law.

In determining the "question of the retroactivity or nonretroactivity of a new decision[,]" our Supreme Court has approved "a three-factor standard" to consider:

(1) the purpose to be served by the new rule, (2) the extent of the reliance on the old rule, and (3) the effect on the administration of justice by the retroactive application of the new rule.

Id . The application of a new rule of law requires the exercise of judicial discretion on a case-by-case basis. Passarello v. Grumbine , 624 Pa. 564, 87 A.3d 285, 307 (2014).

In Protz II , 161 A.3d 827, the claimant's IRE was done under the Sixth Edition of the AMA Guides, and the physician assigned the claimant a whole body impairment of 10%. This rating converted the claimant's compensation from total disability to partial disability. The claimant appealed, arguing that Section 306(a.2)(1) of the Act, 77 P.S. § 511.2(1), had unconstitutionally delegated the responsibility to legislate standards for an IRE to a private entity, i.e. , the American Medical Association. Former Section 306(a.2)(1) of the Act stated that physicians must use "the most recent edition" of the AMA Guides to determine impairment. Former 77 P.S. § 511.2(1).⁵ The Supreme Court upheld this Court's holding in Protz v. Workers’ Compensation Appeal Board (Derry Area School District) , 124 A.3d 406, 412 (Pa. Cmwlth. 2015) ( Protz I ), that the legislature had impermissibly delegated its legislative power to the American Medical Association. However, the Supreme Court rejected this Court's holding that those IREs done under the Fourth Edition of the AMA Guides, the edition in effect when Section 306(a.2) was enacted, would be considered valid. The Supreme Court held, instead, that Section 306(a.2) was incapable of a constitutional construction.

This Court has examined the implementation of Protz II in two pertinent cases. A brief description of each follows.

In Whitfield , 188 A.3d 599, the claimant's IRE was conducted under the Fifth Edition of the AMA Guides and yielded a whole body impairment of 44%. Her disability compensation automatically converted from total to partial, and she collected partial disability compensation until 2014, when she exhausted her 500 weeks of partial disability benefits. Several months later, the claimant filed a reinstatement petition based on this Court's holding in Protz I, 124 A.3d 406. The Board held that the claimant had waived her right to file a reinstatement petition because she had not preserved the issue of whether her IRE was constitutional.

By the time the claimant's appeal reached this Court, Protz II had been decided. We concluded that the claimant's reinstatement petition was authorized by Section 413(a) of the Act, as long as "the petition is filed with the department within three years after the date of the most recent payment of compensation made prior to the filing of such petition." 77 P.S. § 772. Accordingly, we vacated the Board's decision and remanded for a decision on the merits of the claimant's reinstatement petition. Whitfield , 188 A.3d 599.

In Dana Holding Corporation v. Workers’ Compensation Appeal Board (Smuck) , 195 A.3d 635 (Pa. Cmwlth. 2018), petition for allowance of appeal granted , 208 A.3d 461 (Pa. 2019),⁶ the claimant's 2014 IRE was conducted under the Sixth Edition of the AMA Guides and reported a whole body impairment of 11%. The employer filed a modification petition to change the claimant's disability status from total to partial. The claimant challenged the modification, claiming that he had not reached maximum medical improvement. Before the WCJ reached a decision, but after the record was closed, Protz I was decided. The employer then obtained a new IRE...