Winchilla v. Workers' Comp. Appeal Bd.

• Decision Date: 18 September 2015
• Docket Number: No. 213 C.D. 2014,213 C.D. 2014
• Citation: 126 A.3d 364
• Parties: Robert WINCHILLA, Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (NEXSTAR BROADCASTING), Respondent.
• Court: Pennsylvania Commonwealth Court

126 A.3d 364

Robert WINCHILLA, Petitioner

v.WORKERS' COMPENSATION APPEAL BOARD (NEXSTAR BROADCASTING), Respondent.

No. 213 C.D. 2014

Commonwealth Court of Pennsylvania.

Argued April 15, 2015.

Decided Sept. 18, 2015.

Vincent J. Quatrini, Jr., Greensburg, for petitioner.

Paul M. Hummer and Mark A. Minicozzi, Philadelphia, for respondent Nexstar Broadcasting.

BEFORE: DAN PELLEGRINI, President Judge, and BERNARD L. McGINLEY, Judge, and BONNIE BRIGANCE LEADBETTER, Judge, and ROBERT SIMPSON, Judge, and MARY HANNAH LEAVITT, Judge, and PATRICIA A. McCULLOUGH, Judge, and ANNE E. COVEY, Judge.

OPINION BY President Judge PELLEGRINI.¹

Robert Winchilla (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) which granted Nexstar Broadcasting's (Employer) petition to modify Claimant's benefits (modification petition) from total to partial disability under Section 306(a.2) of the Workers' Compensation Act (Act).² For the reasons that follow, we affirm.

The following facts are not in dispute. In August 2002, Claimant sustained a work injury to his lower back, which Employer acknowledged via notice of compensation payable. Claimant returned to work until February 2005 when worsening pain rendered him unable to perform his job duties. Subsequently, Claimant submitted to an impairment rating evaluation (IRE) performed by John A. Kline, Jr., M.D., who provided a whole-body impairment rating of five percent under the Sixth Edition of the American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment (Guides ).

In September 2010, Employer filed a modification petition, seeking to convert Claimant's total disability benefits to partial disability benefits, thereby reducing the amount of compensation that could be paid to 500 weeks. See Section 306(a.2)(7) of the Act, 77 P.S. § 511.2(7) ("In no event shall the total number of weeks of partial disability exceed five hundred weeks for any injury or recurrence thereof, regardless of the changes in status in disability that may occur...."). In his answer to the modification petition, Claimant contended that the Act's "IRE provisions are: as applied to Claimant and/or facially, unconstitutional, capricious, arbitrary, not reasonably calculated, confiscatory, not to be used to assess disability in the workers' compensation sense and extinguish rights." (Answer to Modification Petition, at 1.)

A claimant is partially disabled if he or she has a total impairment rating of less than fifty percent. See Section 306(a.2)(2) of the Act, 77 P.S. § 511.2(2). The impairment rating is determined pursuant to Section 306(a.2) of the Act, providing that it shall be determined under "the most recent edition of the American Medical Association ‘Guides to the Evaluation of Permanent Impairment,’ " which provides a percent of impairment for each particular injury.³

At hearings before the WCJ, Employer submitted a copy of Dr. Kline's IRE in support of its modification petition. Claimant did not submit any medical evidence but instead relied on a decision of the Social Security Administration (SSA) finding Claimant totally disabled from substantial gainful employment based upon his back injury and hearing-loss impairment.

Following the hearings, the WCJ granted Employer's modification petition, adopting Dr. Kline's medical opinion regarding Claimant's IRE as the only medical evidence presented in the case and rejecting the SSA's decision as non-binding. The WCJ also dismissed Claimant's constitutional challenge, finding that Claimant presented no evidence to support this contention.

Claimant appealed to the Board, challenging the constitutionality of Section 306(a.2) of the Act, 77 P.S. § 511.2, for the exact same reasons. The Board affirmed the WCJ's decision, noting that its scope of review does not permit it to consider constitutional issues and therefore "reject[ed] Claimant's request that [it] consider the constitutionality of Section 306(a.2)." (1/16/14 Board Opinion, at 3.) Nonetheless, the Board held that Section 306(a.2)'s IRE provisions do not violate Claimant's due process rights because an employer is required to provide a claimant notice of its intent to modify a claimant's benefits from total to partial, and a claimant is given ample opportunity to be heard on the matter. This appeal followed.⁴

In his petition for review filed on February 18, 2014, Claimant parroting his answer to Modification Petition, again contended that "the IRE provisions [of the Act] as applied to [Claimant] and/or facially, are unconstitutional, as they are capricious, arbitrary, not reasonably calculated, confiscatory, not used to assess disability in the workers' compensation sense, improperly disregard evidence that [Claimant] was totally disabled and improperly extinguish rights." (Petition for Review ¶ 8.) He further asserted that Section 306(a.2) of the Act, 77 P.S. § 511.2, is improperly used "to alter an injured worker's disability status for purposes of extinguishing entitlement to continued benefits" in that "the bar is set so arbitrarily high, i.e. 50% whole body impairment via the American Medical Association Guide to Permanent Impairment (AMA Guides) that permanently disabled workers can not [sic ] or can not [sic ] reasonably be expected to reach the safe haven." (Id. ¶ 9.) Claimant suggested that evidence of disability other than IRE ratings should be used to present a more accurate picture of claimants' true disabilities. (Id. )

In his amended brief, Claimant argues that: (1) Section 306(a.2) of the Act is an unconstitutional delegation of legislative authority to the AMA in violation of Article II, Section 1 of the Pennsylvania Constitution⁵ ; (2) the Guides were not designed to be used to determine whether a claimant is "disabled" for purposes of the Act; and (3) Section 306(a.2) of the Act impinges on the WCJ's sole role in determining facts, credibility, and evidentiary weight.

At the outset, Employer argues that Claimant waived his right to challenge Section 306(a.2) of the Act as an unconstitutional delegation because he did not raise this argument in his petition for review. Although "[q]uestions involving the validity of a statute" may be raised for the first time before this Court, see Section 703 of the Administrative Agency Law, 2 Pa.C.S. § 703, under the version of Rule 1513(d) of the Pennsylvania Rules of Appellate Procedure in effect at the time Claimant filed his petition for review,⁶ such issues were required to be asserted in the petition for review or were deemed waived. See Edwards v. Unemployment Compensation Board of Review, 3 A.3d 690, 693 (Pa.Cmwlth.2010) ; Smithfield Cafe v. Unemployment Compensation Board of Review, 660 A.2d 248, 248 (Pa.Cmwlth.1995).

Because Claimant's petition for review did not cite Article II, Section 1 of the Pennsylvania Constitution and more importantly, did not in any manner assert that the IRE provisions of the Act unconstitutionally delegated legislative authority to the AMA, but only asserted an unspecified constitutional claim, alleging that Section 306(a.2) of the Act is arbitrary and capricious,⁷ Petitioner has waived his unconstitutional delegation argument by failing to assert it in his petition for review. Likewise, because Claimant did not assert the remaining arguments addressed in his brief in his petition for review, they are also waived.⁸

Accordingly, we affirm the Board's order granting Employer's modification petition.

ORDER

AND NOW, this 18th day of September, 2015, the order of the Workers' Compensation Appeal Board dated January 16, 2014, in the above-captioned case is affirmed.

1 This case was argued seriately with Protz v. Workers' Compensation Appeal Board (Derry Area School District), 124 A.3d 406 (Pa.Cmwlth.2015).

2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.2, added by the Act of June 24, 1996, P.L. 350.

3 Section 306(a.2) of the Act provides:

(1) When an employe has received total disability compensation pursuant to clause (a) for a period of one hundred four weeks, unless otherwise agreed to, the employe shall be required to submit to a medical examination which shall be requested by the insurer within sixty days upon the expiration of the one hundred four weeks to determine the degree of impairment due to the compensable injury, if any.The degree of impairment shall be determined based upon an evaluation by a physician who is licensed in this Commonwealth, who is certified by an American Board of Medical Specialties approved board or its osteopathic equivalent and who is active in clinical practice for at least twenty hours per week, chosen by agreement of the parties, or as designated by the department, pursuant to the most recent edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment. "

(2) If such determination results in an impairment rating that meets a threshold impairment rating that is equal to or greater than fifty per centum impairment under the most recent edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment, " the employe shall be presumed to be totally disabled and shall continue to receive total disability compensation benefits under clause (a). If such determination results in an impairment rating less than fifty per centum impairment under the most recent edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment, " the employe shall then receive partial disability benefits under clause (b): Provided, however, That no reduction shall be made until sixty days' notice of modification is given.

(3) Unless otherwise adjudicated or agreed to based upon a determination of earning power under clause (b)(2), the amount of compensation shall not be affected as a

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