            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Simmons,                               :
                            Petitioner        :
                                              :
                     v.                       :    No. 51 C.D. 2018
                                              :    Submitted: November 15, 2018
Workers’ Compensation Appeal                  :
Board (Sunoco, Inc. (R&M)),                   :
                       Respondent             :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge (P)
              HONORABLE CHRISTINE FIZZANO CANNON, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                              FILED: December 6, 2018


       Steven Simmons (Claimant) petitions for review of an Order of the Workers’
Compensation Appeal Board (Board), which reversed a Decision and Order of a
Workers’ Compensation Judge (WCJ), denying his reinstatement petition. While
Claimant agrees with the Board’s decision to reinstate his disability status from
partial to total disability, he disagrees with the effective date of that reinstatement
set forth in the Board’s Order. Because the Pennsylvania Supreme Court declared
Section 306(a.2) of the Workers’ Compensation Act1 (WC Act), governing

       1
         Act of June 2, 1915, P.L. 736, as amended, added by Section 4 of the Act of June 24,
1996, P.L. 350, 77 P.S. § 511.2, invalidated by Protz v. Workers’ Comp. Appeal Bd. (Derry Area
Sch. Dist.), 161 A.3d 827 (Pa. 2017) (Protz II).
impairment rating evaluations (IRE), unconstitutional, and Claimant’s change in
disability status was based upon a now-invalid IRE, Claimant maintains he is
entitled to have his disability status reinstated as of the date of the original change,
which was in 2009. As this issue is controlled by our en banc decision in Whitfield
v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC),
188 A.3d 599 (Pa. Cmwlth. 2018),2 we vacate the Board’s Order and remand for
further proceedings before the WCJ.
        The relevant facts in this case are not in dispute. Claimant suffered a work
injury in 2006.       In 2009, at the request of Sunoco, Inc. (R&M) (Employer),
Claimant underwent an IRE. Using the Sixth Edition of the American Medical
Association’s (AMA) Guides to the Evaluation of Permanent Impairment
(Guides), a physician concluded Claimant had an impairment rating3 of 33 percent.
Under Section 306(a.2)(2), if an impairment rating was less than 50 percent, a
claimant was considered partially disabled. 77 P.S. § 511.2(2). Based upon the
IRE, Employer filed an Amended Notice of Change in Workers’ Compensation
Disability Status changing Claimant’s disability status from total to partial
disability effective August 7, 2009. Claimant did not challenge the change at that
time.

        2
          Neither party filed a petition for allowance of appeal to the Pennsylvania Supreme
Court in Whitfield. However, in a case argued seriately with Whitfield, Pavlack v. Workers’
Compensation Appeal Board (UPMC South Side) (Pa. Cmwlth., No. 702 C.D. 2017, filed June 6,
2018) (en banc), the claimant did file a petition for allowance of appeal, which is still pending at
263 WAL 2018. In a case submitted to the same en banc panel, Moore v. Workers’
Compensation Appeal Board (Sunoco, Inc. (R&M)) (Pa. Cmwlth., No. 715 C.D. 2017, filed June
6, 2018) (en banc), both the claimant and employer have filed cross-petitions for allowance of
appeal. Those are pending at 422 MAL 2018 and 444 MAL 2018, respectively.
        3
          “Impairment rating” was defined as “the percentage of permanent impairment of the
whole body resulting from the compensable injury.” 77 P.S. § 511.2(8)(ii), invalidated by
Protz II.



                                                 2
       However, in 2015, this Court issued its decision in Protz v. Workers’
Compensation Appeal Board (Derry Area School District), 124 A.3d 406, 416-17
(Pa. Cmwlth. 2015) (Protz I), which held Section 306(a.2) of the WC Act was an
unconstitutional delegation of legislative authority.            We held that portions of
Section 306(a.2) that required an IRE to be performed pursuant to “the most recent
edition of the [AMA Guides]” violated article II, section 1 of the Pennsylvania
Constitution.4 Id. at 415 (quoting 77 P.S. § 511.2). Because the Fourth Edition of
the Guides was in effect at the time Section 306(a.2) was enacted, we remanded
the matter for an IRE determination using that edition of the Guides. Id. at 416.
       Shortly after Protz I was decided, Claimant filed a reinstatement petition,
asserting that the IRE performed using the Sixth Edition of the Guides was
unconstitutional pursuant to Protz I.5 The WCJ denied the reinstatement petition,
reasoning under Section 306(a.2)(2) of the WC Act, 77 P.S. § 511.2(2),6 that a
claimant had 60 days in which to challenge a change in status, and Claimant did
not do so here. Alternatively, the WCJ found Claimant could have provided
evidence of an impairment rating equal to or greater than 50 percent pursuant to
Section 306(a.2)(4) of the WC Act, 77 P.S. § 511.2(4),7 which he also did not do.
(WCJ Decision at 4.)

       4
          Article II, section 1 of the Pennsylvania Constitution provides: “The legislative power
of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate
and a House of Representatives.” Pa. Const. art. II, § 1.
        5
          In his reinstatement petition, Claimant states his disability status was changed as of
March 19, 2012. This date appears to be in error.
        6
          Section 306(a.2)(2) provided, in pertinent part, that “no reduction shall be made until
sixty days’ notice of modification is given.” 77 P.S. § 511.2(2), invalidated by Protz II.
        7
          Section 306(a.2)(4) provided:

      An employe may appeal the change to partial disability at any time during the five
      hundred-week period of partial disability; Provided, That there is a determination
(Footnote continued on next page…)


                                               3
       Claimant appealed to the Board, and while his appeal was pending, the
Pennsylvania Supreme Court issued its decision in Protz v. Workers’
Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa.
2017) (Protz II). The Supreme Court affirmed this Court’s determination that
Section 306(a.2) was an unconstitutional delegation of legislative authority. Id. at
838. However, the Supreme Court struck down Section 306(a.2) in its entirety,
concluding the offending language was not severable. Id. at 841. Therefore, this
Court’s determination that the Fourth Edition of the Guides was permissible to use
was overturned.
       Based upon Protz II, the Board reversed the WCJ’s decision. Although the
Board reinstated Claimant’s disability status from partial to total disability, it did
so only from June 20, 2017, the date of the Supreme Court’s decision in Protz II.
The Board “conclude[d] that the Supreme Court’s holding in Protz [II] has
differing impact on different claimants depending on the procedural posture of
their cases.” (Board Opinion (Op.) at 3.) For instance, according to the Board,
claimants who challenge the change in status within 60 days and preserve an
argument that the IRE was unconstitutional should have their benefit status
converted back to total disability as of the original effective date of the change.
(Id.) The 60-day limit was based upon Section 306(a.2)(2). However, claimants
who did not challenge the change in status within 60 days but were still within the
500 weeks of partial disability benefits were entitled to reinstatement to total
_____________________________
(continued…)
       that the employe meets the threshold impairment rating that is equal to or greater
       than fifty per centum impairment under the most recent edition of the [AMA]
       Guides . . . .

77 P.S. § 511.2(4), invalidated by Protz II.



                                               4
disability status as of June 20, 2017, which was the date Protz II was decided. (Id.
at 6-7.) Because Section 306(a.2)(4), which allowed a claimant to challenge a
former IRE with a new IRE, was also struck down by the Supreme Court, leaving
claimants with no avenue of relief, the Board reasoned it would be “absurd” to
penalize those claimants. (Id. at 4.) Yet, the Board noted “the fact that the IRE
provisions have been declared unconstitutional and stricken from the [WC] Act
does not mean the change to partial benefit status should be erased as though it
never happened.” (Id.) The Board concluded:

       [a]ny claimant who did not timely challenge the conversion waived
       any constitutional question and accepted the conversion and its
       legality under the law that was in effect at the time. Such claimant
       had no expectation of preserving total disability status back to the
       original effective date of the status change.

(Id. at 5-6 (emphasis in original).) Accordingly, the Board found those claimants
were only entitled to reinstatement to total disability as of the date of the decision
in Protz II, and any weeks of partial disability prior to that time count towards the
500-week limit of partial disability benefits. (Id. at 7.) Claimant fell into this
category, so the Board reinstated his status to total disability as of June 20, 2017.8
       Claimant now seeks review of that determination,9 urging instead, that his
disability status be reinstated to total disability from August 7, 2009, the date it


       8
          Three commissioners concurred in the Board Opinion authored by the chairman. One
concurred in the result only. In a concurring and dissenting opinion, one commissioner agreed
with reversal of the WCJ Decision but disagreed as to the date of reinstatement, favoring
reinstatement as of August 7, 2009, the date of the original change. One commissioner
concurred with the concurring/dissenting opinion.
        9
          Our “standard of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether necessary findings of fact are
(Footnote continued on next page…)


                                              5
was first changed. He argues the Board erred in relying on other provisions of
Section 306(a.2) for establishing a timetable in which he must have appealed the
IRE since those provisions were also invalidated by Protz II. Claimant asserts that
since his reinstatement petition was pending when Protz II was decided, he should
be entitled to the benefit of the change in the law. Further, he argues Employer
had no expectation of finality as he was still receiving partial disability benefits,10
and even if the 500 weeks of partial disability benefits had expired, Employer was
still responsible for paying medical expenses, confirming nothing was final.
Claimant argues the Board Order “strip[s]” him of 410 weeks of partial disability
benefits to which he would otherwise be entitled. (Claimant’s Brief (Br.) at 6.)
Claimant requests the Court affirm the Board’s decision to reinstate him to total
disability status but reverse the Board as to its effective date.11
          Employer responds that Protz II is silent as to what effect, if any, it has on
cases in which IREs were previously utilized to change a claimant’s disability
status.     It calls the Board’s approach “reasonable” in that it recognizes that
Claimant took no steps between 2009 and 2015 to challenge his change in status.
(Employer Br. at 6.)           Because Claimant did not challenge the IRE earlier,



_____________________________
(continued…)
supported by substantial evidence.” Thompson v. Workers’ Comp. Appeal Bd. (Exelon Corp.),
168 A.3d 408, 412 n.3 (Pa. Cmwlth. 2017).
        10
           A change in status from total to partial disability under Section 306(a.2) did not alter
the rate of compensation; rather, the practical effect was to limit the receipt of partial disability
benefits to 500 weeks.
        11
           The Pennsylvania Association for Justice filed an amicus brief in this matter, wherein it
argues for retroactive effect of Protz II. It asserts that there is no finality unless a claimant
executed a compromise and release agreement or was found to be fully recovered in a decision
granting a termination petition.



                                                 6
Employer posits that Claimant should not be entitled to retroactive application of
Protz II. Employer asks this Court to affirm the Board’s Decision and Order.
      Earlier this year,12 an en banc panel of this Court addressed this very issue.
In Whitfield, the claimant’s disability status was changed from total to partial in
2008 based upon an IRE performed using the Fifth Edition of the Guides. She did
not challenge the change until this Court issued its decision in Protz I. At that
time, she filed a reinstatement petition seeking to have her status reinstated to total
disability. The WCJ denied the petition, and the Board affirmed. After reviewing
the history of Protz I and II, as well as a number of cases that arose therefrom, we
vacated the Board’s order and remanded for further proceedings.                       We first
concluded that a claimant has three years from the date of last payment of
compensation to seek reinstatement. Whitfield, 188 A.3d at 612. We next held
that in order to be entitled to reinstatement of total disability benefits when the
change in status was based upon a now-unconstitutional IRE, a claimant must
demonstrate that they continue to be disabled. Id. at 615-16. This can be satisfied
through the claimant’s own testimony. Id. at 616. The burden then shifts to the
employer to present evidence to the contrary. Id. If a claimant’s testimony is
credited and the employer does not present competent and credible evidence to the
contrary, we held a “[c]laimant [would be] entitled to reinstatement as of the date
[the claimant] filed [his or] her [p]etition.” Id. (emphasis added).




      12
           Whitfield was decided after the briefs in the instant matter were filed.



                                                  7
      As the Board’s decision is inconsistent with Whitfield, which was decided
months after the Board issued its Opinion and Order in this case, we vacate the
Board’s Order and remand the matter to the Board with direction to further remand
to the WCJ for additional proceedings consistent with our decision in Whitfield.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                         8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Simmons,                          :
                         Petitioner      :
                                         :
                   v.                    :   No. 51 C.D. 2018
                                         :
Workers’ Compensation Appeal             :
Board (Sunoco, Inc. (R&M)),              :
                       Respondent        :


                                      ORDER


      NOW, December 6, 2018, the Order of the Workers’ Compensation Appeal
Board dated December 19, 2017, is VACATED, and this matter is REMANDED
for further proceedings consistent with the foregoing opinion.


      Jurisdiction relinquished.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
