              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Phyllis Morrissey,                    :
                  Petitioner          :
                                      :     No. 486 C.D. 2019
           v.                         :
                                      :     Submitted: November 1, 2019
Workers’ Compensation Appeal          :
Board (Super Fresh Food Markets, Inc. :
and Broadspire Services, Inc.),       :
                  Respondent          :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                      FILED: January 9, 2020

            Phyllis Morrissey (Claimant) petitions for review from the April 3, 2019
order of the Workers’ Compensation Appeal Board (Board) that affirmed the decision
of a workers’ compensation judge (WCJ) dismissing Claimant’s Petition to Review
Compensation Benefits (Review Petition) as untimely because it was filed more than
three years after the date of her last payment of partial disability benefits. For the
reasons set forth below, we affirm.
            Claimant suffered a lower back strain while working as a cashier for Super
Fresh Food Markets, Inc. (Employer) on July 19, 1996. Employer accepted liability
for this injury and issued a Notice of Compensation Payable (NCP) on August 26, 1996.
An Impairment Rating Determination Face Sheet filed on October 19, 1998 indicates
that Andrew Newman, M.D., issued an impairment rating evaluation (IRE) on
September 14, 1998 which found that Claimant suffered a whole body impairment of
ten percent.1 More than eight years later, on October 11, 2006, Employer issued a
Notice of Change of Workers’ Compensation Disability Status on Form LIBC-764
(Form LIBC-764) informing Claimant that, based on Dr. Newman’s IRE, her disability
status had changed from total disability to partial disability beginning on July 21, 1998.
(WCJ’s Findings of Fact (F.F.) Nos. 1, 2, 3, and 4; Reproduced Record (R.R.) at 39a-
43a.)
               On February 10, 2014, Claimant filed a Review Petition seeking to amend
the NCP to include additional injuries. (Certified Record (C.R. at 19-20.) On
September 3, 2014, Claimant filed a second Review Petition alleging: “incorrect
description of injury, medical bills unpaid, worsening of condition, injury causing
decreased earning [and] violation of the Act, Rules and Regulations.” Under the
“Additional Information” part of the Review Petition, Claimant further alleged that,
because Form LIBC-764 was not filed until October 11, 2006, the effective date of
change in the status of her disability benefits should be October 11, 2006 rather than
July 21, 1998 and that she is further entitled to 500 weeks2 of partial disability benefits
as of October 11, 2006. (R.R. at 28a.)
               On December 22, 2015, Claimant testified before the WCJ that her 500
weeks of workers’ compensation benefits ended in 2008 and that she has not received

        1
          This IRE was performed pursuant to former Section 306(a.2) of the Workers’ Compensation
Act (Act), 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, which was repealed by the Legislature by the Act of October 24, 2018, P.L. 714,
following this Court’s decision in Protz v. Workers’ Compensation Appeal Board (Derry Area School
District), 124 A.3d 406 (Pa. Cmwlth. 2015) (Protz I), and the Supreme Court’s decision in Protz v.
Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz
II).
        2
          Pursuant to Section 306(b)(1) of the Act, 77 P.S. §512, a claimant is limited to 500 weeks of
partial disability benefits.



                                                  2
any benefits since that time. Claimant also stated that, eight years after she stopped
receiving benefits, she received Form LIBC-764 regarding her change in disability
status. (R.R. at 85a-86a.) Claimant further testified that she was represented by an
attorney at the time she received Form LIBC-764 and that she was aware that her
benefits would expire 500 weeks following her IRE. (R.R. at 100a-102a.)3
               The WCJ dismissed Claimant’s Review Petition as untimely because it
was filed more than three years after her last payment of disability benefits. Claimant
appealed, and the Board affirmed.4
               On appeal to this Court, Claimant argues that both the WCJ and the Board
erroneously focused on whether her appeal was filed within three years after her last
payment of compensation benefits and committed an error of law by finding that her
Review Petition was untimely. Claimant contends that Form LIBC-764 must be filed
before the 500-week period of partial disability benefits begins to run. Because
Employer did not file Form LIBC-764 until October 11, 2006, and 500 weeks after that
date is June 1, 2016, Claimant contends that her Review Petition, filed within that 500
week period on September 3, 2014, is timely.5

       3
          The attorney who filed the Review Petition that is the subject of this appeal began
representing Claimant on November 16, 2000. (R.R. at 100a.)
        4
          The WCJ also granted a Termination Petition and Petition for Review of Utilization Review
Determination filed by Employer and dismissed Claimant’s Petition for Review of Utilization Review
Determination and the February 10, 2014 Review Petition. However, Claimant’s appeal is limited
solely to the dismissal of the September 3, 2014 Review Petition, as her April 26, 2019 Petition for
Review filed with this Court indicates that “[t]he only petition that forms the subject of this present
appeal is [Claimant’s Review Petition] regarding the [IRE] … Form LIBC-764 was not filed until
October 11, 2006. [Employer] erroneously used the date of July 21, 1998 as the effective date of the
disability status change from total to partial instead of the correct date of October 11, 2006 …
[Claimant’s] [R]eview [P]etition was filed on September 3, 2014. Therefore, the [R]eview [P]etition
was timely filed and is not barred by any statute of limitations.”
        5
          Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights



                                                  3
              Section 413(a) of the Act provides, in relevant part, that:
              A workers’ compensation judge . . . may, at any time, modify,
              reinstate, suspend, or terminate a notice of compensation
              payable . . . upon petition filed by either party with the
              department . . . Provided, That, except in the case of eye
              injuries, 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). The requirement that a claimant be provided with
Form LIBC-764 following an IRE is found in Section 123.105(d) of the Pennsylvania
Code, which provides that:


              (d) If the evaluation results in an impairment rating of less
              than 50%, the employee shall receive benefits partial in
              character. To adjust the status of the employee’s benefits
              from total to partial, the insurer shall provide notice to the
              employee, the employee’s counsel, if known, and the
              Department, on Form LIBC-764, ‘‘Notice of Change of
              Workers’ Compensation Disability Status,’’ of the
              following:
                (1) The evaluation has resulted in an impairment rating of
              less than 50%.
                (2) Sixty days from the date of the notice the employee’s
              benefit status shall be adjusted from total to partial.
                (3) The adjustment of benefit status does not change the
              amount of the weekly workers’ compensation benefit.
                (4) An employee may only receive partial disability
              benefits for a maximum of 500 weeks.


have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow Lakes
Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa. Cmwlth.
2006).




                                              4
                 (5) The employee may appeal the adjustment of benefit
               status to a workers’ compensation judge by filing a Petition
               for Review with the Department.


34 Pa. Code § 123.105(d) (emphasis added).6
               Claimant argues that the 500 weeks of partial disability benefits did not
begin to run until she received Form LIBC-764 in 2006 and that, because she filed the
Review Petition within that 500 weeks, it is timely. Pursuant to Section 413(a) of the
Act, a review petition must be filed within three years of the most recent payment of
compensation. 77 P.S. § 772. Logically, then, if a claimant can file a review petition
within three years of receiving benefits, a claimant could also seek to amend the NCP
to include additional injuries by filing a review petition at any time during the actual
receipt of those benefits. The problem with Claimant’s argument here is that, even if
we were to accept her proposition that the 500 weeks of benefits should start in 2006
because of the belated filing of Form LIBC-764, we cannot change the fact that
Claimant actually already began receiving those benefits and stopped receiving those
benefits in 2008. However, the Review Petition was not filed until 2014. Pursuant to
Section 413(a) of the Act, Claimant would had to have filed her Review Petition
alleging that the description of the injury was improper and seeking to change the date
being used to calculate the change in her disability status either while she was receiving

       6
          Section 123.105(d) was promulgated pursuant to former Section 306(a.2)(2) of the Act
which, as is noted above, was repealed by the Legislature in 2017 following Protz II. In Protz II, our
Supreme Court found that the Legislature unconstitutionally delegated authority to the American
Medical Association (AMA) by allowing the use of the most recent version of the AMA’s “Guides
to the Evaluation of Permanent Impairment” (Guides to Impairment) for IREs. The Legislature
responded to Protz II by enacting Section 306(a.3) of the Act, added by Section 1 of the Act of
October 24, 2018, P.L. 714, 77 P.S. § 511.3. Section 306(a.3) states that IREs must be based on the
6th Edition of the AMA Guides to Impairment. Section 306(a.3) retained many of the same provisions
of former 306(a.2)(2), and nothing in Section 123.105(d) has been found to be unconstitutional or
inconsistent with Section 306(a.3) of the Act.


                                                  5
benefits or within three years of the last payment of benefits, and she did neither here.
Therefore, the September 3, 2014 Review Petition is untimely.
             Claimant further posits that the filing of Form LIBC-764 is a condition
precedent to modifying benefits or starting the running of the clock on the 500 weeks
of benefits and, therefore, her benefits were never properly modified by Employer.
However, there is no law, regulation or case that supports this contention. Claimant
filed the Review Petition that is the subject of this appeal eight years after receiving
Form LIBC-764 and six years after last receiving partial disability benefits. Section
413(a) of the Act is the only controlling statute in this case and it requires that a review
petition be filed within three years of the most recent payment of compensation. As
Claimant testified that she received her last partial disability payment in 2008, her
Review Petition filed in 2014 is clearly untimely. An employer’s belated filing of Form
LIBC-764 does not serve to extend the time limit for filing a review petition set forth
in Section 413(a).
             In her brief, Claimant further cites to the humanitarian purposes of the Act
to support her position that the 500-week period should not begin to run until Employer
filed Form LIBC-764 on October 11, 2006. It is undisputed that Form LIBC-764 was,
for some unknown reason, not sent to Claimant until 2006, which is eight years after
the IRE was performed. However, whatever harm was caused by this belated filing, it
did not affect Claimant’s understanding of her rights under the Act. To the contrary,
the transcript from the WCJ’s December 22, 2015 hearing reveals that Claimant was
well aware of her rights:


             [Employer’s attorney]: [Your] [c]ounsel asked you about
             this impairment rating determination face sheet that you
             remember receiving in 1998; is that correct?
             [Claimant]: Yes. I still have that.

                                             6
              [Employer’s attorney]: Were you represented by an attorney
              at that time?
              [Claimant]: ’98? I think I was.
              [Employer’s attorney]: Did you ever tell your attorney that
              you received this form in the mail? Do you not recall? . . . .
              Do you remember if you had an attorney at this time? You
              said you might have; correct?
              [Claimant]: I think I did, yes.
              ....
              [Employer’s attorney]: Do you remember your attorney
              telling you that your benefits would expire 500 weeks
              following that examination that you had?
              [Claimant]: Yes.
              [Employer’s attorney]: Okay.
              [WCJ]: You knew that? You knew you were on a time
              clock?
              [Claimant]: Yeah. The Act 57[7] thing.
              [WCJ]: Okay.
              [Claimant]: Five hundred (500) week cap.


(R.R. at 100a-102a.) In making her argument, Claimant is asking this Court to entertain
a fiction that the 500-week period did not begin to run until 2006 when her own
testimony is that, in 1998, she was well aware that her benefits would end in 500 weeks.
              Additionally, we find Johnson v. Workers’ Compensation Appeal Board
(Sealy Components Group), 982 A.2d 1253 (Pa. Cmwlth. 2009), a case interpreting the
then-valid Section 306(a.2)(2), to be instructive in the matter sub judice. In Johnson,
the claimant sustained a work injury in 2004 and was notified on June 13, 2006 that
her disability status was changing from total to partial based on an IRE as of May 31,


       7
         Act 57 refers to the 1996 amendments to the Workers’ Compensation Act, Act of June 24,
1996, P.L. 350.


                                              7
2006. On May 31, 2007, the claimant filed a review petition seeking to challenge the
IRE. A WCJ dismissed the claimant’s review petition, and the Board affirmed. In
affirming the decision of the Board, this Court stated that:


             In the present case, [the c]laimant was permitted to an
             immediate appeal pursuant to Section 306(a.2)(2) of the Act
             and 34 Pa. Code § 123.105(d)(5) when she was first notified
             by [the e]mployer via the June 13, 2006, Notice of Change
             of Workers' Compensation Disability Status, of the change in
             her disability status. It is undisputed that [the c]laimant
             did not file her petition to review the IRE determination
             until almost a year after she was provided with notice of
             the change in her disability status; therefore, [the
             c]laimant waived her immediate appeal rights as
             provided for in Section 306(a.2)(2) of the Act and 34 Pa.
             Code § 123.105(d).
             Thus, we reject [the c]laimant's contention that her due
             process rights were violated by the WCJ's decision. A
             claimant cannot sit on her appeal rights and then claim
             that she was denied due process.


Id. at 1257-1258 (emphasis added). In Johnson, this Court did not address whether the
review petition was timely under Section 413(a) of the Act, but instead found that the
review petition challenging the IRE should have been filed within 60 days of receiving
Form LIBC-764. Unlike the claimant in Johnson, Claimant here filed the Review
Petition alleging that the description of the injury was improper and seeking to change
the date being used to calculate the change in her disability status, not to attack the IRE.
Thus, the time limit set forth in Section 413(a) applies. However, like the claimant in
Johnson, Claimant here similarly sat on her appeal rights. After receiving Form LIBC-
764 in 2006, Claimant did nothing for eight years. Under these circumstances, we fail




                                             8
to see how the humanitarian purposes of the Act would require that we treat the Review
Petition as timely filed.
             Accordingly, the order of the Board is affirmed.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                          9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Phyllis Morrissey,                    :
                  Petitioner          :
                                      :    No. 486 C.D. 2019
           v.                         :
                                      :
Workers’ Compensation Appeal          :
Board (Super Fresh Food Markets, Inc. :
and Broadspire Services, Inc.),       :
                  Respondent          :


                                  ORDER


            AND NOW, this 9th day of January, 2020, the order of the Workers’
Compensation Appeal Board is AFFIRMED.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
