           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Adrianne Pavlack,                          :
                          Petitioner       :
                                           :
                    v.                     :   No. 702 C.D. 2017
                                           :   Submitted: March 7, 2018
Workers’ Compensation Appeal               :
Board (UPMC South Side),                   :
                      Respondent           :



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE ELLEN CEISLER, Judge




OPINION NOT REPORTED


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


      Adrianne Pavlack (Claimant) petitions for review of an Order of the Workers’
Compensation Appeal Board (Board), affirming a Decision and Order of a Workers’
Compensation Judge (WCJ), denying her Petition to Modify Workers’
Compensation Benefits and Petition to Review Compensation Benefits. Claimant
filed the petitions seeking to have her disability status changed from partial to total
disability based upon this Court’s decision in Protz v. Workers’ Compensation
Appeal Board (Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015)
(Protz I), which declared portions of Section 306(a.2) of the Workers’ Compensation
Act1 (WC Act) unconstitutional.            After the Board issued its Order denying
Claimant’s petitions, and while her appeal was pending with this Court, the Supreme
Court issued its decision in Protz v. Workers’ Compensation Appeal Board (Derry
Area School District), 161 A.3d 827 (Pa. 2017) (Protz II), declaring the entirety of
Section 306(a.2) unconstitutional. UPMC South Side (Employer) argues neither
Protz decision entitles Claimant to relief because she never raised the
constitutionality of the impairment rating evaluation (IRE) performed in 2007 and
therefore the argument is waived. Consistent with our recent decision in Whitfield
v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC),
__ A.3d __, (Pa. Cmwlth., No. 608 C.D. 2017, filed June 6, 2018) (en banc), we
vacate the Board’s Order and remand for further proceedings before the WCJ.
       The facts of this case are not in dispute. Claimant suffered a work injury
described as “right lumbar radiculopathy” on November 4, 1996. (WCJ Decision,
Finding of Fact (FOF) ¶ 1.)           Employer recognized the injury and issued an
Agreement for Compensation on December 3, 1996. On October 8, 2007, Claimant
underwent an IRE performed by Anthony N. Ricci, M.D. Dr. Ricci utilized the Fifth
Edition of the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (Guides) when performing the IRE. He found Claimant had
a whole body impairment rating of 13 percent. Based upon the IRE, Employer filed
a modification petition seeking to change Claimant’s disability status from total
disability to partial disability as of the date of the IRE. Litigation ensued, in which
Claimant challenged whether she had reached maximum medical improvement,


       1
         Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 24, 1996, P.L. 350,
77 P.S. § 511.2.


                                               2
which is required prior to an IRE.       The WCJ ultimately granted Employer’s
modification petition. Claimant did not appeal the WCJ’s decision.
          On November 9, 2015, approximately two months after Protz I was decided,
Claimant filed her petitions seeking to set aside the IRE as unconstitutional since it
was performed using the Fifth Edition of the Guides. She sought reinstatement to
total disability status effective the date of her petitions. Employer filed timely
answers denying the allegations of the petitions.
          At a hearing held December 14, 2015, the WCJ accepted into evidence a fee
agreement, the IRE face sheet and report, and the WCJ Decision from 2009 granting
the change in status. No testimony was presented and the matter was submitted on
briefs.
          On May 24, 2016, the WCJ issued his Decision denying Claimant’s review
petition and modification petition. The WCJ concluded that Protz I was “not to be
applied fully retroactively, and d[id] not govern Claimant’s pending petitions.”
(WCJ Decision, Conclusion of Law (COL) ¶ 4.) The WCJ noted that this Court did
not indicate whether Protz I should be given retroactive effect and merely remanded
the matter to the WCJ for application of the Fourth Edition of the Guides, which was
the most recent edition of the Guides at the time Section 306(a.2) was added. (Id.)
The WCJ further explained that in Blackwell v. State Ethics Commission, 589 A.2d
1094 (Pa. 1991), the Supreme Court declared a portion of another statute to be an
unconstitutional delegation of legislative authority, but did not give it complete
retroactive effect, applying it instead to cases pending on direct appeal. (Id.) Based
upon Blackwell, the WCJ concluded Protz I similarly did not apply to Claimant’s
case. (Id. ¶ 5.)




                                          3
      The WCJ rejected Claimant’s argument that her case was not final because
her disability status was subject to further modification or reinstatement. (Id. ¶ 6.)
The WCJ noted Claimant did not challenge the IRE framework before the original
WCJ and therefore waived the argument. (Id. (citing Winchilla v. Workers’ Comp.
Appeal Bd. (Nexstar Broad.), 126 A.3d 364 (Pa. Cmwlth. 2015)).) “Simply because
the nature of workers’ compensation claims allow for serial litigation of Claimant’s
disability status does not permit the parties to relitigate issues that either were the
subject of the prior litigation, or should have been raised in the earlier litigation,” the
WCJ wrote. (Id.) Because the WCJ found Protz I was not to be retroactively applied
and the original WCJ decision was now final, the WCJ denied Claimant’s petitions.
      Claimant filed a timely appeal to the Board, which affirmed in a split 4-3
decision issued May 4, 2017. The majority relied primarily on this Court’s decision
in Riley v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania),
154 A.3d 396 (Pa. Cmwlth. 2016), to conclude that Claimant did not challenge the
constitutionality of the IRE within 60 days or present evidence of a new IRE
demonstrating an impairment rating of 50 percent or more as required by other
subsections of Section 306(a.2). (Board Opinion (Op.) at 3-6.) Accordingly, it
affirmed the WCJ’s Decision.
      The dissenting Board commissioners found Riley was distinguishable because
in that case the claimant sought to challenge the IRE after the 500 weeks of partial
disability whereas Claimant here filed her petitions within the 500-week period.
(Board Dissenting Op. at 1.) Therefore, the dissent reasoned that Claimant’s case
was not final and Protz I should have been applied retroactively. (Id. at 2.) In
addition, it found the criteria for retroactive application of a new rule of law set forth
in Blackwell – the purpose of the new rule; the extent of reliance on the old rule; and



                                            4
the effect on the administration of justice by retroactive application of the new rule
– were satisfied. (Id. at 2-3.) The dissent found the purpose of the new rule was to
avoid cutting off claimants’ benefits based upon an unconstitutional IRE.2 (Id. at 2.)
The dissent further found that reliance on the old rule was overstated because “the
IRE process is inherently not a final process, and remains an open case for 500 weeks
past the time that a claimant’s disability status is changed.” (Id.) Finally, the dissent
found that the retroactive application of the new rule would have limited effect if
Protz I was only applied to cases where the 500-week period of temporary partial
disability benefits had not expired. (Id. at 3.) Accordingly, the dissent would have
applied Protz I retroactively, vacated the WCJ’s Decision, and remanded the matter
to the WCJ for application of the Fourth Edition of the Guides. (Id. at 5.)
       On June 5, 2017, Claimant filed her Petition for Review of the Board’s Order
with this Court. On appeal,3 she argues the Board erred in concluding she waived
the ability to challenge the IRE on constitutional grounds and by not applying the
Supreme Court’s decision in Protz II retroactively to claimants, such as herself, who
are still receiving partial disability benefits following a change in status based upon
a now-unconstitutional IRE. Claimant acknowledges she did not challenge the IRE
on constitutional grounds in earlier litigation, but nonetheless contends she raised it
at the first available opportunity post-Protz I, which is consistent with this Court’s
holding in Thompson v. Workers’ Compensation Appeal Board (Exelon
Corporation), 168 A.3d 408 (Pa. Cmwlth. 2017). She further argues that any


       2
         Temporary partial disability benefits are capped at 500 weeks. Section 306(b)(1) of the
WC Act, 77 P.S. § 512(1).
       3
         This Court’s review in workers’ compensation appeals is limited to determining whether
necessary findings of fact are supported by substantial evidence, whether an error of law was
committed, or whether constitutional rights were violated. Elberson v. Workers’ Comp. Appeal
Bd. (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).


                                               5
reliance on Riley is misplaced as Protz II has now invalidated the entirety of Section
306(a.2).
      Claimant argues in favor of an expansive application of Protz II, claiming it
should apply to all claimants who are receiving partial disability benefits following
a change in status based upon an IRE.4 She argues applying Protz II is not a
retroactive application of the new rule of law because Claimant could have sought
modification anytime within the 500-week period of temporary partial disability
benefits. She also argues:

      It would be an absurd interpretation of the IRE provisions of the [WC]
      Act to hold that, during the applicable 500[-] week period, a party could
      show the claimant’s condition had improved or worsened but prevent
      the claimant from challenging the constitutionality of the provision
      itself. It would be equally absurd, to allow the claimant’s benefits to
      end at a future date, based on a provision of the [WC] Act that has been
      previously held unconstitutional. By way of further absurdity, a
      claimant whose disability increased past the 50% threshold would have
      no legal recourse because Section 306(a.2) has been held
      unconstitutional.

(Claimant’s Brief (Br.) at 15-16.) Finally, Claimant argues the Blackwell factors for
retroactivity are met.
      Employer responds that Claimant did not challenge the constitutionality of the
IRE at any time during the original litigation before the first WCJ and did not appeal
that WCJ’s decision. Therefore, pursuant to Winchilla and Riley, the issue is waived.
Employer argues Claimant could challenge her partial disability status at any time
during the 500-week period of temporary partial disability by producing medical
evidence of an increase from partial to total disability, but Claimant did not do so.
Employer argues the Blackwell factors weigh against retroactive application

      4
          We decline to make such a sweeping declaration when those are not the facts before us.


                                                6
particularly given the reliance of employers on IREs. If Protz II were to be given
retroactive effect, Employer maintains there would be “a stampede of claimants
seeking restoration of benefits.” (Employer’s Br. at 12.) Finally, Employer argues
that if any retroactive effect is given to Protz II, it should only be to those cases
where constitutional challenges were previously raised.
      Consistent with our recent decision in Whitfield, we vacate and remand this
matter for further proceedings before the WCJ. In Whitfield, we explained that
reliance on our decisions issued post-Protz I but pre-Protz II has been undermined
because they relied upon other sections of Section 306(a.2) to establish timeframes
within which claimants had to challenge IREs. Protz II, however, struck the entirety
of Section 306(a.2) from the WC Act; therefore, those timeframes are no longer
valid. Whitfield, __ A.3d at __, slip op. at 18-19, 27 n.23. Instead, we held that a
claimant could seek reinstatement of his or her benefits as long as a petition is filed
within three years of the date of the most recent payment of compensation. Id. at
__, slip op. at 20-21 (citing Section 413(a) of the WC Act, 77 P.S. § 772). Claimant
here was still receiving benefits at the time she filed her petitions.
      The inquiry does not end there, though. We explained in Whitfield that
reinstatement of benefits when the change from total to partial disability occurred
because of an IRE using the Fifth or subsequent Edition of the Guides also requires
a claimant to demonstrate ongoing disability. Id. at __, slip op. at 24-27. A claimant
does not need to produce medical evidence to establish this, as his or her own
testimony will suffice. Id. at __, slip op. at 25 (citing Latta v. Workmen’s Comp.
Appeal Bd. (Latrobe Die Casting Co.), 642 A.2d 1083, 1085 (Pa. 1994)). At that
point, the burden shifts to the employer to prove the contrary. Id. at 26. If no
contrary evidence is set forth and the WCJ credits the claimant’s testimony,



                                           7
reinstatement is warranted. Id.    Under such circumstances, reinstatement would
occur as of the date the reinstatement and/or modification petition was filed. Id. at
__, slip op. at 27-28.
      In the instant action, the parties did not present any factual evidence; instead
they relied exclusively on legal arguments. Therefore, we vacate the Board’s Order
finding Claimant was not entitled to reinstatement and remand this matter to the
Board with direction to further remand to the WCJ who should hold an evidentiary
hearing to determine whether Claimant’s work-related injury continues.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge



Judge Covey dissents.




                                          8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Adrianne Pavlack,                        :
                         Petitioner      :
                                         :
                    v.                   :   No. 702 C.D. 2017
                                         :
Workers’ Compensation Appeal             :
Board (UPMC South Side),                 :
                      Respondent         :


                                      ORDER


      NOW, June 6, 2018, the Order of the Workers’ Compensation Appeal Board
dated May 4, 2017, is VACATED, and this matter is REMANDED for further
proceedings consistent with the foregoing opinion.
      Jurisdiction relinquished.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
