             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Moore,                                     :
                               Petitioner         :
                                                  :
                       v.                         :    No. 715 C.D. 2017
                                                  :    Submitted: March 7, 2018
Workers’ Compensation Appeal                      :
Board (Sunoco, Inc. (R&M)),                       :
                       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


       Steven Moore (Claimant) seeks review of an Order of the Workers’
Compensation Appeal Board (Board), which reversed a Decision and Order of a
Workers’ Compensation Judge (WCJ), granting his Petition to Reinstate Workers’
Compensation Benefits. Claimant was one of many claimants who had his disability
status changed from total to partial disability1 following an impairment rating

       1
         The effect of the change in status does not alter the rate of compensation. Instead, it caps
the receipt of partial disability benefits to 500 weeks.
evaluation (IRE) performed pursuant to Section 306(a.2) of the Workers’
Compensation Act2 (WC Act). Claimant’s IRE was performed using the Fifth
Edition of the American Medical Association’s (AMA) Guides to the Evaluation of
Permanent Impairment (Guides), which this Court held in Protz v. Workers’
Compensation Appeal Board (Derry Area School District), 124 A.3d 406, 417 (Pa.
Cmwlth. 2015) (Protz I), was invalid because Section 306(a.2) of the WC Act was
an unconstitutional delegation of legislative powers “insofar as it purport[ed] to
adopt a new version of the . . . Guides” without legislative review or oversight.
Shortly thereafter, Claimant sought reinstatement to total disability, which the WCJ
granted. The Board reversed, causing Claimant to file the instant Petition for Review
with this Court. Just two weeks after Claimant filed his Petition for Review, 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), which struck the
entirety of Section 306(a.2) from the WC Act as unconstitutional. Claimant and his
employer, Sunoco, Inc. (R&M) (Employer), disagree as to whether Claimant is
entitled to reinstatement to total disability status based upon either Protz I or Protz
II when Claimant’s IRE was performed more than a decade ago and went
unchallenged until now. As this matter is controlled by 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),3 we vacate the Board’s Order and remand for further proceedings before
the WCJ.


       2
          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.
        3
           This matter was scheduled to be argued seriately with Whitfield, but was submitted on
briefs at the request of the parties.


                                               2
        The parties agree that the facts underlying this case are not in dispute. On
April 21, 2005, Claimant suffered a work injury described as a “right elbow
displaced fracture radial head” after falling off a ladder at work.           Employer issued
a Notice of Temporary Compensation Payable.                   On July 31, 2007, Claimant
underwent an IRE performed by William C. Murphy, D.O. Utilizing the Fifth
Edition of the Guides, Dr. Murphy concluded Claimant had a whole body
impairment rating of 32 percent.4 Based upon that IRE, Employer issued a Notice
of Change of Workers’ Compensation Disability Status on September 24, 2007.
Claimant’s disability status was changed from total to partial disability effective
April 21, 2007.5 Claimant did not seek to challenge the change in disability status
at that time.
        On October 5, 2015, two weeks after Protz I, Claimant filed a Petition to
Reinstate benefits. In the Petition, he alleged he underwent an IRE using the Fifth
Edition of the Guides, which was “void as it was done pursuant to an
[u]nconstitutional portion” of the WC Act. (Reproduced Record (R.R.) at 1a.)
Claimant requested an order “clarifying that . . . his disability status remains that of
[t]otal [d]isability and that the status never changed despite the Notice of Change in
Disability Status.” (Id.) Claimant requested the reinstatement take effect April 21,
2007.       He also requested reimbursement of reasonable litigation costs and
unreasonable contest attorney’s fees.


        4
         Under Section 306(a.2)(2), a claimant with an impairment rating less than 50 percent was
considered partially disabled, whereas a claimant with an impairment rating of 50 percent or more
was presumed to be totally disabled. 77 P.S. § 511.2(2).
       5
         April 21, 2007 was the date Claimant reached a total of 104 weeks of total disability.
Under Section 306(a.2)(1), a claimant who received 104 weeks of total disability compensation
was required to submit to an IRE, if requested by the employer within 60 days of the expiration of
the 104 weeks. 77 P.S. § 511.2(1).


                                                3
      Employer filed an Answer on October 7, 2015, arguing Claimant “waived any
argument that the IRE that has been performed is invalid” because he failed to
challenge the change in status within 60 days. (Id. at 4a.)
      The matter was assigned to a WCJ. A hearing was held on November 10,
2015. The WCJ heard argument, but no testimony was presented. Employer
introduced the Notice of Temporary Compensation Payable and Notice of Change
in Disability Status. Those items were subsequently resubmitted as exhibits by
Claimant, along with a letter from Employer’s counsel confirming a stipulation that
the Fifth Edition of the Guides was used, a fee agreement, the IRE face sheet and
report of Dr. Murphy, and a copy of litigation costs.
      Based upon the evidence and arguments presented, the WCJ “determined that
the purpose of [Protz I] was a determination to ensure that constitutional rights are
not violated.” (WCJ Decision, Finding of Fact ¶ 10.) Thus, he was “constrained
from denying” the reinstatement petition. (Id.) The WCJ concluded Claimant
satisfied his burden of proof that the change in disability status on April 21, 2007,
was unconstitutional pursuant to Protz I and granted the reinstatement petition. The
WCJ concluded Employer’s contest was reasonable.
      Employer appealed to the Board, arguing under Winchilla v. Workers’
Compensation Appeal Board (Nexstar Broadcasting), 126 A.3d 364 (Pa. Cmwlth.
2015),6 “a challenge to an IRE [d]etermination must be both timely and properly
plead[ed;] otherwise, it is waived.” (R.R. at 42a.) Because the Claimant did not
challenge the 2007 IRE until 2015, Employer argued the issue was waived as a
matter of law.




      6
          Winchilla was argued seriately with Protz I.


                                                 4
       The Board, in a 4-3 split decision, reversed. Relying on this Court’s decision
in Riley v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania),
154 A.3d 396 (Pa. Cmwlth. 2016), the majority found Claimant did not challenge
the constitutionality of the IRE within 60 days after the Notice of Change in
Disability Status was issued. (Board Opinion (Op.) at 3.) The majority also found
Claimant did not present evidence of a new impairment rating of at least 50 percent,
which would entitle him to relief under Section 306(a.2)(4) of the WC Act, 77 P.S.
§ 511.2(4).7 (Id. at 3-4.) Accordingly, the Board reversed.
       Three members of the Board dissented, finding Riley was distinguishable
because the claimant there sought to challenge the IRE more than 500 weeks after
the change in disability status, whereas Claimant here filed his petition within the
500-week period of temporary partial disability. (Board Dissenting Op. at 1.) As a
result, the dissent would have found Claimant’s case was not final and retroactively
applied Protz I, finding it satisfied the three criteria for retroactivity in Blackwell v.
State Ethics Commission, 589 A.2d 1094 (Pa. 1991). (Id. at 2.) The dissent
concluded the first criterion – the purpose to be served by the new rule – was satisfied
because retroactive application of Protz I would “serve[] the important purpose of
mandating conformity with the constitution, as the [C]ourt has declared the



       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; [p]rovided, [t]hat there is a determination
       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 . . .
       Guides. . . .

77 P.S. § 511.2(4).



                                                 5
delegation of legislative authority in authorizing the use of the [Fifth8] Edition of the
AMA Guides unconstitutional.” (Id.) The second criterion – the extent of reliance
on the old rule – was met 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,” meaning an employer “never had full reliance” on the old rule.
(Id. at 2-3.) Finally, the third criterion – the effect on the administration of justice
by retroactive application of the new rule – was satisfied because retroactive
application of Protz I would have limited effect if it was applied to cases where the
500-week period had not yet expired. (Id. at 3.) The dissent stated “there would be
a more adverse effect on the administration of justice if Protz [I] was not
retroactively applied to these cases” because claimants would be left without a
remedy. (Id.)
       On June 6, 2017, Claimant filed the instant Petition for Review. On appeal,9
Claimant argues that the Supreme Court’s decision in Protz II rendered any IRE
performed as void ab initio.10 Claimant cites to this Court’s recent decision in
Thompson v. Workers’ Compensation Appeal Board (Exelon Corporation), 168

       8
           The dissent incorrectly states the Sixth Edition of the Guides was used, instead of the
Fifth Edition.
        9
          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).
        10
            Claimant also asks this Court to apply Protz II retroactively to all cases wherein
reinstatement is sought within the 500-week period of partial disability. Employer advocates
against such broad, sweeping declarations. We agree and decline to decide what effect, if any,
Protz II has on a claimant whose IRE was performed using the Fourth Edition of the Guides, as
those are not the facts before us. As for whether a claimant can seek reinstatement or modification
after the 500-week period, in Whitfield we held that they may, provided the petition is filed within
three years of the date of most recent payment of compensation. Whitfield, __ A.3d at __, slip op.
at 2.



                                                 6
A.3d 408 (Pa. Cmwlth. 2017), which is one of this Court’s few post-Protz II
decisions, for the proposition that all IREs are void as a result of Protz II. Claimant
argues he and other claimants would be prejudiced if the IRE was left to stand
because they would be without any remedy as the remedies provided to claimants
were contained in Section 306(a.2), which has been declared unconstitutional in its
entirety. Claimant also argues that claims are not final within the 500-week period
of partial disability and that claimants have an additional three years from the date
of last payment of compensation to seek reinstatement or modification pursuant to
Section 413(a) of the WC Act, 77 P.S. § 772.11 Claimant further argues that the
criteria for retroactivity set forth in Blackwell are satisfied, reiterating what the
Board dissent found. In addition, Claimant distinguishes Riley, relied upon by the
Board, on the ground it relied upon another subsection of Section 306(a.2), which
has since been stricken as unconstitutional, and Winchilla, cited by Employer, on the


       11
            Section 413(a) provides:

       A workers’ compensation judge designated by the department may, at any time,
       modify, reinstate, suspend, or terminate a notice of compensation payable, an
       original or supplemental agreement or an award of the department or its workers’
       compensation judge, upon petition filed by either party with the department, upon
       proof that the disability of an injured employe has increased, decreased,
       recurred, or has temporarily or finally ceased, or that the status of any dependent
       has changed. Such modification, reinstatement, suspension, or termination shall be
       made as of the date upon which it is shown that the disability of the injured employe
       has increased, decreased, recurred, or has temporarily or finally ceased, or upon
       which it is shown that the status of any dependent has changed: Provided, [t]hat . .
       . no notice of compensation payable, agreement or award shall be reviewed, or
       modified, or reinstated, unless a 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 (emphasis added).



                                                7
ground that waiver was found there because the issue was not properly pleaded to
our Court, whereas here the issue was.
       Employer argues this matter is indistinguishable from Gillespie v. Workers’
Compensation Appeal Board (Aker Philadelphia Shipyard) (Pa. Cmwlth., No. 1633
C.D. 2016, filed May 17, 2017),12 wherein this Court held that claimants had only
60 days to challenge an IRE under Section 306(a.2)(2) and Protz I did “not give
[claimants] a second chance to appeal [an] IRE.”13 Gillespie, slip op. at 7. Employer
stresses that for years, the IRE in the instant action went unchallenged and Claimant
cannot seek to relitigate it at this point. Employer argues that unlike Thompson,
there was no litigation pending at the time Protz I was issued. Employer also points
out that, by the time Protz II was issued, Claimant had already exhausted his 500
weeks of temporary partial disability benefits.14
       As explained in Whitfield, __ A.3d at __, slip op. at 18-19, 27 n.23, reliance
on any of this Court’s decisions pre-Protz II, such as Riley, for the proposition that
claimants must challenge an IRE within 60 days or present evidence of an
impairment rating of at least 50 percent within 500 weeks, is undermined since those
time periods were found in Section 306(a.2), which is now unconstitutional in its
entirety. Therefore, in accordance with Whitfield, __ A.3d at __, slip op. at 20-21,


       12
           Employer cites Gillespie for its persuasive value pursuant to Section 414(a) of this
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a), which provides that an
unreported panel decision issued after January 15, 2008, may be cited “for its persuasive value,
but not as binding precedent.”
        13
           In January 2018, after Protz II was decided, the Supreme Court granted the claimant’s
petition for allowance of appeal in Gillespie, vacated our order, and remanded the matter to this
Court for a determination of whether Protz II applies retroactively, thereby rendering the
claimant’s IRE void ab initio. Gillespie v. Workers’ Comp. Appeal Bd. (Aker Phila. Shipyard),
179 A.3d 451 (Pa. 2018).
        14
           Although Claimant’s indemnity benefits have ended, Claimant continues to receive
medical benefits.


                                               8
we conclude Claimant’s challenge is not untimely, as he had three years following
the date of the most recent payment of compensation to file a petition seeking to
reinstate benefits. Accordingly, the Board erred in finding Claimant waived his
ability to seek reinstatement.
      However, in order to be entitled to reinstatement of total disability benefits
when the change in status was based upon a now-unconstitutional IRE, Claimant
must demonstrate that he continues to be disabled. Whitfield, __ A.3d at __, slip op.
at 24-27. Claimant can satisfy this burden through his own testimony without the
need for medical evidence. Whitfield, __ A.3d at __, slip op. at 25 (citing Latta v.
Workmen’s Comp. Appeal Bd. (Latrobe Die Casting Co.), 642 A.3d 1083, 1085 (Pa.
1994)). The burden then would shift to Employer to prove the contrary. Id. If no
evidence to the contrary is set forth, and the WCJ credits Claimant’s testimony,
reinstatement is warranted. Id. Here, no such evidence was presented, as the parties
relied solely upon legal arguments. Accordingly, we remand this matter to the Board
with direction to further remand to the WCJ to make factual findings related to
whether Claimant’s work-related injury continues.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge



Judge Covey dissents.




                                         9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Moore,                            :
                         Petitioner      :
                                         :
                   v.                    :   No. 715 C.D. 2017
                                         :
Workers’ Compensation Appeal             :
Board (Sunoco, Inc. (R&M)),              :
                       Respondent        :


                                      ORDER


      NOW, June 6, 2018, the Order of the Workers’ Compensation Appeal Board
dated May 11, 2017, is VACATED, and this matter is REMANDED for further
proceedings consistent with the foregoing opinion.
      Jurisdiction relinquished.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
