              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kenneth Potts,                           :
                          Petitioner     :
                                         :
                     v.                  :
                                         :
Workers’ Compensation                    :
Appeal Board (Elwyn, Inc.),              :   No. 615 C.D. 2016
                       Respondent        :   Submitted: August 26, 2016


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: January 19, 2017

            Kenneth Potts (Claimant) petitions this Court for review of the Workers’
Compensation (WC) Appeal Board’s (Board) March 29, 2016 order affirming the
Workers’ Compensation Judge’s (WCJ) decision denying Claimant’s Penalty
Petition. Claimant presents two issues for this Court’s review: (1) whether the Board
erred by holding that the September 8, 2004 Notice of Change in Disability Status
was the controlling document; and (2) whether the Board erred in failing to apply
Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 124
A.3d 406 (Pa. Cmwlth. 2015), appeal granted by 133 A.3d 733 (Pa. 2016). After
review, we affirm.
            On April 18 and 22, 2002, Claimant suffered work-related injuries while
employed by Elwyn, Inc. (Employer). By February 10, 2004 decision, WCJ John
Liebau determined that Claimant’s work-related injuries included a fracture of the left
index finger, left carpal tunnel syndrome, reflex sympathetic dystrophy and cervical
radiculopathy. WCJ Liebau also found that these injuries rendered Claimant disabled
as of June 26, 2002. Claimant was awarded wage loss benefits at the rate of $373.33
per week. As of June 22, 2004, Claimant had received 104 weeks of temporary total
disability benefits relative to the April 18, 2002 injuries; thus, Employer filed a
Request for Designation of a Physician to Perform an Impairment Rating Evaluation
(IRE) with the Bureau of Workers’ Compensation.
             On July 26, 2004, Claimant returned to modified-duty work for
Employer. On August 10, 2004, James F. Bonner, M.D. (Dr. Bonner) performed an
IRE and concluded that Claimant’s whole person impairment in accordance with the
Fifth Edition of the American Medical Association “Guides to the Evaluation of
Permanent Impairment” (AMA Guides) was 20%. As a result thereof, on September
8, 2004, Employer issued a Notice of Change in Disability Status because Claimant’s
disability status changed, based on the IRE, from total to partial effective August 10,
2004.
             Claimant’s modified-duty position was eliminated on March 1, 2005.
On March 11, 2005, the parties executed a Supplemental Agreement providing that
Claimant’s disability recurred as of March 1, 2005. On November 8, 2005, Claimant
underwent a left rotator cuff repair and biceps tendon tenolysis. Claimant filed a
Review Petition and Employer filed a Modification Petition (collectively, Petitions).
On February 8, 2007, the Petitions were withdrawn, and Claimant’s injury description
was expanded to include a left rotator cuff tear. On March 25, 2014, Claimant filed
the Penalty Petition alleging that Employer unilaterally stopped paying temporary
total disability benefits without first obtaining an IRE Decision modifying Claimant’s
status from total to partial disability.   Employer filed an answer to the Penalty
Petition denying the allegations therein. WCJ Holly San Angelo held hearings on
May 6 and July 8, 2014. On March 31, 2015, WCJ San Angelo denied Claimant’s


                                           2
Penalty Petition. Claimant appealed to the Board. On March 29, 2016, the Board
affirmed the WCJ’s decision. Claimant appealed to this Court.1
               Claimant first argues that the Board erred by holding that the September
8, 2004 Notice of Change in Disability Status was the controlling document.
Specifically, Claimant contends that the March 11, 2005 Supplemental Agreement
controls. We disagree.
               Initially, Section 306(a.2) of the WC Act (Act)2 provides, in pertinent
part:

               (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
               [AMA Guides.]
               (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 [AMA Guides,] the employe shall be
               presumed to be totally disabled and shall continue to
        1
         “On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
       2
         Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.2, added by Section 4 of the Act
of June 24, 1996, P.L. 350. As explained herein, this Court in Protz declared this section “an
unconstitutional delegation of legislative authority insofar as it proactively approved versions of the
AMA Guides beyond the Fourth Edition without review.” Protz, 124 A.3d at 416.
                                                  3
             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 [AMA Guides,] 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 result of
             the change in disability status and shall remain the same.
             An insurer or employe may, at any time prior to or
             during the five hundred-week period of partial
             disability, show that the employe’s earning power has
             changed.
             (4) 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 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.]
             (5) Total disability shall continue until it is adjudicated or
             agreed under clause (b) that total disability has ceased or the
             employe’s condition improves to an impairment rating that
             is less than fifty per centum of the degree of impairment
             defined under the most recent edition of the [AMA Guides.]

77 P.S. § 511.2(5) (emphasis added).           Section 306(b)(1) of the Act expressly
provides: “[C]ompensation shall be paid during the period of such partial disability . .
. but for not more than five hundred weeks.” 77 P.S. § 512(1) (emphasis added).
Moreover, our Supreme Court explained:

             Impairment and disability are not interchangeable terms. . . .
             [I]mpairment is statutorily defined as ‘an anatomic or
             functional abnormality or loss that results from the
             compensable injury and is reasonably presumed to be
             permanent,’ 77 P.S. § 511.2(8)(i), while disability is ‘the
             loss of earning power attributable to the work-related
             injury.’ Landmark Constructors, [Inc. v. Workers’ Comp.

                                           4
            Appeal Bd. (Costello)], 747 A.2d [747,] 854 [(Pa. 2000)].
            Impairment, therefore, deals with the physical aspects of the
            claimant’s injury without regard to the impact on the
            claimant’s earning power occasioned by the injury.
            Disability concerns loss of earning power without focusing
            on the physical limitations responsible for the loss of
            earning potential. What constitutes proof of impairment
            would necessarily vary greatly from evidence of disability.

Diehl v. Workers’ Comp. Appeal Bd. (I.A. Constr.), 5 A.3d 230, 244 (Pa. 2010).
            Here, the September 8, 2004 Notice of Change in Disability Status was
based on Claimant’s impairment rating of less than 50% from which he did not
appeal during the five hundred-week period.        However, because Claimant was
working in a modified position at that time, he did not receive his partial disability
payments.   The Supplemental Agreement for Compensation for Disability was
based on the elimination of Claimant’s modified job which resulted in Claimant’s
disability “recurr[ing].” Supplemental Agreement, Reproduced Record at 77a. As a
result of the Supplemental Agreement, Claimant began receiving his partial
disability payments on March 1, 2005.
            Pursuant to Section 306(a.2)(4) of the Act: “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 that the employe meets the
threshold impairment rating that is equal to or greater than fifty per centum
impairment.” 77 P.S. § 511.2(4) (emphasis added). Claimant did not appeal from
the change to partial disability. Because the Notice of Change in Disability Status
concerned Claimant’s “physical aspect[]” of his injury, and the Supplemental
Agreement concerned only Claimant’s “loss of earning power,” the Board properly
determined that the September 8, 2004 Notice of Change in Disability Status was the
controlling document. Diehl, 5 A.3d at 244.
            Claimant also asserts that because his injury description was expanded
on February 8, 2007 to include a left rotator cuff tear, and Employer did not request a
                                          5
change in Claimant’s disability status based thereon, Employer was not authorized to
stop Claimant’s disability benefits under Section 435 of the Act. We disagree.
             In Wingrove v. Workers’ Compensation Appeal Board (Allegheny
Energy), 83 A.3d 270 (Pa. Cmwlth. 2014), this Court expressly held:

             [A] 2012 amendment to the [Notice of Compensation
             Payable (]NCP[)] did not render [a] 2005 IRE determination
             invalid. Once 60 days passed, it became fixed and beyond
             challenge. Thus, the burden shifted to [the c]laimant to
             prove that the addition[al injury] to the NCP rendered him
             at least 50% impaired. Section 306(a.2)(4) of the Act
             allows a change in disability status but only where ‘there is
             a determination that the employe meets the threshold
             impairment rating that is equal to or greater than fifty
             percentum impairment. . . .’ 77 P.S. § 511.2(4). [The
             c]laimant did not do this and, thus, has not met his burden.

Wingrove, 83 A.3d at 276 (citation omitted); see also Duffey v. Workers’ Comp.
Appeal Bd. (Trola-Dyne, Inc.), 119 A.3d 445, 453-54 (Pa. Cmwlth. 2015), petition
for allowance of appeal granted, 131 A.3d 480 (Pa. 2016) (“[A]n IRE that considers
a claimant’s work injury, as it is defined and exists at the time the IRE is
performed, is valid notwithstanding an after-the-fact expansion of the scope of a
claimant’s work-related injury.” (Emphasis added)).
             In the instant case, Claimant’s IRE determination became “fixed and
beyond challenge” after 60 days passed. Wingrove, 83 A.3d at 276. “Thus, the
burden shifted to Claimant to prove that the addition[al injury] rendered him at least
50% impaired.” Id. Consequently, since it was not Employer’s burden to request a
new IRE based on the amended injury description, Employer did not violate the Act
by stopping Claimant’s disability benefits.
             Claimant next contends that the Board erred in failing to apply Protz
because Dr. Bonner used the Fifth Edition of the AMA Guides and the Protz Court
ruled that the Fifth Edition of the AMA Guides was constitutionally invalid.


                                          6
Claimant cites Ruse v. Workers’ Compensation Appeal Board (Valley Medical
Facilities Sewickley) (Pa. Cmwlth. No. 952 C.D. 2014, filed January 13, 2016) to
support his position.3
               We recognize that in Protz, this en banc Court held: “[W]e declare
Section 306(a.2) of the Act, 77 P.S. § 511.2, an unconstitutional delegation of
legislative authority insofar as it proactively approved versions of the AMA Guides
beyond the Fourth Edition without review.” Protz, 124 A.3d at 416. Further, we
acknowledge that in Ruse, this Court remanded the matter to the Board for “a new
IRE [to] be performed in accordance with the methodology contained in the Fourth
Edition of the AMA Guides” based on the Protz Court’s holding. Ruse, slip op. at 9.
However, in Ruse, the claimant filed a timely Petition to Review Compensation
Benefits (Review Petition) challenging his IRE, as well as a Petition for
Remand/Rehearing (Remand Petition) based on a subsequent IRE. Thus, Claimant’s
IRE was properly before the Court in Ruse.
               Here, Claimant did not file a Review Petition to contest his IRE, nor
did he obtain a subsequent IRE or file a Remand Petition based thereon. Thus,
Claimant’s IRE is not before the Court. Rather, Claimant filed a Penalty Petition
when his disability payments ceased. Accordingly, the only issue before this Court is




       3
           Claimant also asserts that Frazier v. Workers’ Compensation Appeal Board (Bayada
Nurses, Inc.), 52 A.3d 241 (Pa. 2012), Bible v. Department of Labor and Industry, 696 A.2d 1149
(Pa. 1997), and Pittsburgh Steelers Sports, Inc. v. Workers’ Compensation Appeal Board
(Williams), 814 A.2d 788 (Pa. Cmwlth. 2002), require that Protz be applied in this case. However,
Frazier does not address the retroactivity of an unconstitutional statutory provision, Bible discussed
the retroactivity of a statute which contains a specific legislative direction that it be applied
retroactively, and Williams, addressed post Act 44 enactment injuries and the Court held: “[Act
44’s] provision relating to the compensation of professional athletes is controlling. The law in
effect at the time of [the] injury determines the method of calculating benefits, and by extension, the
calculation of any credits against those benefits.” Williams, 814 A.2d at 795. Accordingly, Frazier,
Bible and Williams are inapposite.
                                                  7
whether the Board erred in affirming the WCJ’s decision denying Claimant’s
Penalty Petition.
            This Court has held:

            ‘The assessment of penalties, and the amount of penalties
            imposed are matters within the WCJ’s discretion.’ Gumm
            v. Workers’ Comp. Appeal Bd. (Steel), 942 A.2d 222, 232
            (Pa. Cmwlth. 2008). ‘However, ‘a violation of the Act or
            its regulations must appear in the record for a penalty to
            be appropriate.’ ’ Id. (emphasis added) (quoting Shuster
            v. Workers’ Comp. Appeal Bd. (Pa. Human Relations
            Comm’n), 745 A.2d 1282, 1288 (Pa. Cmwlth. 2000)). ‘No
            penalty may be imposed under [Section 435[FN]5] [of the
            Act] absent proof of a violation of the Act or the rules of the
            department or board.’ Id. (quoting Spangler v. Workmen’s
            Comp. Appeal Bd. (Ford), . . . 602 A.2d 446, 448 ([Pa.
            Cmwlth.] 1992)). ‘Further, a claimant who files a penalty
            petition bears the burden of proving a violation of the Act
            occurred. If the claimant meets his or her initial burden of
            proving a violation, the burden then shifts to the employer
            to prove it did not violate the Act.’ Id. (citation omitted).
                 [FN]5 Added by Section 3 of the Act of February 8,
                 1972, P.L. 25, 77 P.S. § 991.

Dixon v. Workers’ Comp. Appeal Bd. (Medrad, Inc.), 134 A.3d 518, 525 (Pa.
Cmwlth. 2016).
            Claimant contends that Employer violated the Act because Employer
“unilaterally stopped paying Claimant’s [WC] benefits without first obtaining an IRE
[d]ecision modifying [] Claimant’s status from total to partial disability.” Claimant
Penalty Pet. at 1. As explained above, Employer was not required to obtain an IRE
decision modifying Claimant’s status from total to partial disability because: (1) the
Supplemental Agreement did not change Claimant’s status from partial to total
disability as a result of his additional injury; and (2) the 2004 IRE became fixed and
beyond challenge after 60 days passed. Employer stopped Claimant’s benefits on or



                                          8
about March 23, 2014,4 500 weeks from the date Claimant’s partial disability
payments became payable (August 10, 2004). “Section 306(b) of the Act, 77 P.S. §
512, . . . provides that compensation for partial disability is payable for a period not
to exceed 500 weeks.” Cozzone v. Workers’ Comp. Appeal Bd. (PA Mun./E. Goshen
Twp.), 41 A.3d 105, 109 (Pa. 2012) (emphasis added). Thus, “Employer was no
longer under any obligation to pay Claimant wage loss benefits related to his work-
related injury, and, therefore, Employer did not violate the Act by unilaterally ceasing
payment of Claimant’s . . . disability benefits.” Id. at 114.
              Claimant’s contention that because Protz subsequently deemed
Claimant’s 2004 IRE constitutionally invalid does not affect the issue before the
Court, i.e., whether Claimant’s Penalty Petition was properly denied. At the time
Employer stopped payment of Claimant’s disability benefits, Claimant’s IRE was
valid; thus, ceasing Claimant’s disability benefits based thereon was not a violation of
the Act. Indeed, Employer discontinued making payments on March 23, 2014, and
Protz was not decided until September 18, 2015. As Employer did not violate the
Act at the time it stopped making Claimant’s payments, the Board properly
affirmed the WCJ’s decision denying Claimant’s Penalty Petition.5
              For all of the above reasons, the Board’s order is affirmed.


                                            ___________________________
                                            ANNE E. COVEY, Judge



       4
          The record is absent of the exact date Employer stopped Claimant’s payments; however,
March 23, 2014 is the date Claimant listed as when the alleged violation occurred. See Claimant
Penalty Pet. at 1.
        5
          The Dissent misconstrues this holding as a declaration that Protz does not apply
retroactively. This Court makes no such ruling. Rather, we hold that the Protz issue is not properly
before the Court given the facts of this case.


                                                 9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kenneth Potts,                         :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Workers’ Compensation                  :
Appeal Board (Elwyn, Inc.),            :   No. 615 C.D. 2016
                       Respondent      :


                                     ORDER


            AND NOW, this 19th day of January, 2017, the Workers’ Compensation
Appeal Board’s March 29, 2016 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kenneth Potts,                             :
                   Petitioner              :
                                           :
            v.                             :
                                           :
Workers’ Compensation Appeal               :
Board (Elwyn, Inc.),                       :    No. 615 C.D. 2016
                  Respondent               :    Submitted: August 26, 2016


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

CONCURRING AND DISSENTING
OPINION BY JUDGE COSGROVE                       FILED: January 19, 2017


            Although I agree with the majority opinion in all other aspects, I must
dissent from its holding that our decision in Protz v. Workers’ Compensation
Appeal Board (Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015),
appeal granted by 133 A.3d 733 (Pa. 2016) is not to be applied retroactively.
“[A]t common law, a decision announcing a new principle of law is normally
retroactive.” Blackwell v. Com., State Ethics Comm'n, 589 A.2d 1094, 1099 (Pa.
1991). This rule is tempered by prudential considerations which examine three
considerations: (1) the purpose to be served by the new rule, (2) the extent of the
reliance on the old rule, and (3) the effect on the administration of justice by the
retroactive application of the new rule.       Id., citing Desist v. United States, 394
U.S. 244 (1969).
               In Protz, this Court found Section 306(a.2) of the Workers’
                         1
Compensation Act             violated “Article II, Section 1 of the Pennsylvania
Constitution” in that it constituted “an unconstitutional delegation of legislative
authority” by allowing disability to be determined according to standards created
by the American Medical Association (AMA) but never approved by the General
Assembly. Applying the three pronged analysis noted above, there is nothing in
this record to indicate that retroactive application of Protz would do anything other
than advance the interests of justice. Denying that application in the present case
works a mischief with which I cannot agree. Accordingly, I must respectfully
dissent.2




                                             ___________________________
                                             JOSEPH M. COSGROVE, Judge




       1
        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.
       2
          In response to the present dissent, the Majority suggests that the issue of whether
Protz is to be applied retroactively is not addressed in its opinion. However, despite its efforts,
the Majority still permits a disavowed disability determination to govern resolution of this
case. Since this cannot survive constitutional scrutiny, this dissent must remain.


                                              JMC - 2
