             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward J. Timcho, Jr.,                          :
                 Petitioner                     :
                                                :
                 v.                             :    No. 158 C.D. 2017
                                                :    Argued: December 6, 2017
Workers’ Compensation Appeal                    :
Board (City of Philadelphia),                   :
                   Respondent                   :


BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ROBERT SIMPSON, Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                         FILED: August 17, 2018

                 Edward J. Timcho, Jr., (Claimant) petitions for review of an
adjudication of the Workers’ Compensation Appeal Board (Board) dismissing his
petition for reinstatement of benefits under the Workers’ Compensation Act (Act).1
In doing so, the Board affirmed the decision of the Workers’ Compensation Judge
(WCJ) that Claimant had already litigated to finality the modification of his
disability status from full to partial and failed to raise the issue of the
constitutionality of his impairment rating evaluation (IRE) in that litigation.
Claimant contends the Board erred in deeming his constitutional claim waived. We
agree and will vacate the Board’s order and remand for further proceedings before
the WCJ.
                 On May 20, 2008, Claimant sustained a work-related injury while
transporting a prisoner for the City of Philadelphia (Employer). Employer accepted

1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
liability for a work-related myocardial infarction pursuant to a Notice of
Compensation Payable and Claimant began receiving temporary total disability
benefits. On November 11, 2008, Claimant filed a claim petition.                 On May 27,
2010, WCJ Patricia Bachman issued a decision granting Claimant temporary total
disability benefits for an injury described as a “heart attack and residual heart
damage.” Reproduced Record at 9a (R.R. __).
              Thereafter, Employer requested that Claimant undergo an impairment
rating evaluation (IRE). On July 25, 2011, Dr. Lance Yarus, D.O., examined
Claimant and issued an IRE report based on the Sixth Edition of the American
Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA
Guides). The IRE report determined that Claimant’s impairment rating was 32%.
As a result, Employer filed a modification petition on August 18, 2011, seeking to
change Claimant’s compensation status from total disability to partial disability.
              On July 23, 2013, WCJ Lawrence C. Beck granted Employer’s
modification petition pursuant to former Section 306(a.2) of the Act2 because



2
   Section 306(a.2) of the Act, added by the Act of June 24, 1996, P.L. 350, was held
unconstitutional by our Supreme Court in Protz v. Workers’ Compensation Appeal Board (Derry
Area School District), 161 A.3d 827 (Pa. 2017) (Protz II). Section 306(a.2) of the Act provided,
in relevant 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


                                               2
Claimant’s permanent impairment rating was below 50%. Claimant appealed WCJ
Beck’s decision to the Board. The Board affirmed. Claimant petitioned this Court
for review.
               Claimant’s sole argument before this Court was that the Board erred in
affirming WCJ Beck’s decision granting Employer’s modification petition because
Dr. Yarus had not complied with the Sixth Edition AMA Guides. Specifically, he
did not order or conduct diagnostic tests as part of his IRE. Claimant did not
challenge the constitutionality of Section 306(a.2) of the Act in response to
Employer’s petition to modify his status from full to partial disability on the basis of
an IRE.
               On January 27, 2016, this Court affirmed the modification of
Claimant’s benefits. Timcho v. Workers’ Compensation Appeal Board (City of
Philadelphia) (Pa. Cmwlth., No. 756 C.D. 2015, filed January 27, 2016) (Timcho I).
We held that the relevant section of the Sixth Edition AMA Guides did “not contain
a directive regarding the necessity to perform objective tests in the process of
conducting an IRE and [did] not include any direction regarding the timing of such
tests.” Id., slip op. at 12. Stated otherwise, Dr. Yarus complied with the Sixth

        edition of the American Medical Association “Guides to the Evaluation of
        Permanent Impairment.”
        (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 American Medical Association “Guides to the
        Evaluation of Permanent Impairment,” the employe shall be presumed to be totally
        disabled and shall continue to 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 American Medical
        Association “Guides to the Evaluation of Permanent Impairment,” 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.
77 P.S. §511.2(1), (2).
                                                 3
Edition AMA Guides by using the report of another physician and diagnostic testing
performed in 2009 to render his IRE rating. Claimant did not seek review of this
Court’s decision in Timcho I.
             On January 5, 2016, prior to the issuance of this Court’s decision in
Timcho I, Claimant filed a reinstatement petition asserting that his total disability
benefits should be reinstated in light of this Court’s holding in Protz v. Workers’
Compensation Appeal Board (Derry Area School District), 124 A.3d 406 (Pa.
Cmwlth. 2015) (Protz I), that Section 306(a.2) of the Act was “an unconstitutional
delegation of legislative authority insofar as it prospectively approved versions of
the AMA Guides beyond the Fourth Edition without review.” Protz I, 124 A.3d at
416 (emphasis omitted).         Under Protz I, Claimant argued, his IRE was
unconstitutional because Dr. Yarus had relied on the Sixth Edition AMA Guides. In
response, Employer filed a motion to dismiss Claimant’s reinstatement petition,
arguing that Claimant was precluded from raising a constitutional challenge to his
IRE because he had not raised or preserved that issue in his appeal to this Court in
Timcho I.
             On July 1, 2016, WCJ Bachman granted Employer’s motion and denied
and dismissed Claimant’s reinstatement petition. In doing so, WCJ Bachman
concluded that:

             Claimant is precluded from raising and pursuing his
             constitutional challenge to Section 306(a.2) of the Act by way of
             Reinstatement Petition before this Court as Claimant failed to
             raise and preserve his constitutional challenge to said Section in
             his Petition for Review and Brief to the Commonwealth Court
             relative to litigation of an underlying Modification Petition
             which modified his benefits based on an Impairment Rating
             Evaluation.



                                          4
WCJ Bachman Decision at 5; R.R. 37a. On review, the Board affirmed. Claimant
then petitioned this Court for review.
              On appeal,3 Claimant argues that the Board and WCJ Bachman erred
by dismissing his reinstatement petition. Claimant argues that the modification of
his benefit status was based upon an unconstitutional IRE. Claimant argues further
that he did not waive this constitutional challenge by not raising it in Timcho I. He
maintains that a reinstatement petition is a proper vehicle for taking advantage of
this Court’s Protz I ruling. Moreover, Claimant argues that Protz I should apply
retroactively and his benefits should be reinstated.
              Employer responds that WCJ Bachman properly dismissed Claimant’s
reinstatement petition because he was required to raise and preserve his
constitutional challenge to Section 306(a.2) in Timcho I, when the Board, and this
Court, considered Claimant’s challenge to the modification of his benefit status. In
that proceeding, he challenged the IRE on other grounds, i.e., Dr. Yarus’s failure to
comply with the AMA Guides. Claimant did not raise a constitutional issue.
Employer contends that because Claimant waived the Protz I issue, was precluded
from raising it in a subsequently filed reinstatement petition.
              While Claimant’s challenge to the dismissal of his reinstatement
petition was pending in this Court, the Supreme Court issued its decision in Protz II.
The Supreme Court affirmed this Court’s holding that the prospective approval of
versions of the AMA Guides in Section 306(a.2) of the Act constituted an


3
 This Court’s review of an order of the Board determines “whether the necessary findings of fact
are supported by substantial evidence, whether Board procedures were violated, [or] whether
constitutional rights were violated or an error of law was committed.” Ingrassia v. Workers’
Compensation Appeal Board (Universal Health Services, Inc.), 126 A.3d 394, 400 n.6 (Pa.
Cmwlth. 2015). Regarding questions of law, our review is plenary. American Road Lines v.
Workers’ Compensation Appeal Board (Royal), 39 A.3d 603, 610 n.6 (Pa. Cmwlth. 2012).
                                               5
unconstitutional delegation of legislative authority. However, the Supreme Court
disagreed with our conclusion that the offending provision could be severed from
the Act. Instead, the Supreme Court held all of Section 306(a.2) of the Act to be
unconstitutional. In doing so, it “essentially struck the entire IRE process from the
Act.” Thompson v. Workers’ Compensation Appeal Board (Exelon Corp.), 168 A.3d
408, 413 (Pa. Cmwlth. 2017). As a result, the Act no longer contains a provision
allowing for modification of benefits based on an IRE.
             Turning to the case sub judice, the question is whether Claimant can
raise the constitutionality of his IRE for the first time in a reinstatement petition. He
could have raised the issue in his modification appeal in Timcho I, but he did not do
so.
             Employer maintains that Claimant’s constitutional challenge is barred
by the doctrine of administrative finality. Under the doctrine of administrative
finality, as a general rule, “[a] party cannot avoid the requirement to exhaust
administrative remedies merely by raising a constitutional challenge to the validity
of a statute[.]” Larry Pitt & Associates, P.C. v. Butler, 785 A.2d 1092, 1099 (Pa.
Cmwlth. 2001). This Court has explained that “[t]he doctrine of administrative
finality precludes a collateral attack of an administrative action where the party
aggrieved by that action foregoes his statutory appeal remedy.” Department of
Environmental Protection v. Peters Township Sanitary Authority, 767 A.2d 601, 603
(Pa. Cmwlth.), petition for allowance of appeal denied, 784 A.2d 120 (Pa. 2001).
Essentially, Claimant seeks to relitigate Timcho I on a new theory. Claimant
responds that the finality doctrine is inapplicable and that a reinstatement petition
allows a case to be reopened on any grounds.




                                           6
               The issues raised by the parties have been resolved by this Court’s
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), which followed a procedural path similar to that in the instant case. In
Whitfield, the claimant, Paulette Whitfield, underwent an IRE in 2006. The IRE
physician, using the Fifth Edition AMA Guides, concluded that her impairment
rating was 44%. Based on the IRE, a WCJ modified Whitfield’s status from total to
partial disability. Whitfield appealed, but she did not challenge the constitutionality
of the IRE. The Board affirmed on June 1, 2009, and Whitfield took no further
appeal. Whitfield’s 500 weeks of partial disability benefits expired in 2015, the
same year that Protz I was decided.
               On November 13, 2015, Whitfield filed a petition to reinstate her total
disability benefits, citing Protz I.          At hearings on the reinstatement petition,
Whitfield testified that she had been unable to work at all since her surgery in 2002
and did not believe she was fully recovered from her work injury. The WCJ denied
the reinstatement petition, holding, inter alia, that Whitfield had waived her
constitutional claim because she did not raise it in her appeal of the modification of
her benefits.      The WCJ did not make a finding regarding the credibility of
Whitfield’s testimony. On review, the Board affirmed.
               Whitfield petitioned for this Court’s review, after Protz II had been
decided. We held that because Whitfield had filed her reinstatement petition within
three years of the date of her most recent payment of compensation as permitted by
Section 413(a) of the Act,4 she was entitled, as a matter of law, to seek modification

4
 Section 413(a) of the Act provides, in relevant part, that “no notice of compensation payable,
agreement or award shall be reviewed, or modified, or reinstated, unless a petition is filed with the


                                                 7
of her disability status based on the Protz decisions, which struck the IRE process
from the Act. We rejected the employer’s argument that allowing a modification of
benefits under these circumstances would prejudice its expectation of finality. We
explained that Section 413(a) of the Act has always permitted a claimant to seek
modification of her disability status by a reinstatement petition, as long as the
“petition is filed … within three years [of] the date of the most recent payment of
compensation….” 77 P.S. §772. As such, an employer cannot have an expectation
of finality until the three-year period has expired.5
              In deciding the appropriate remedy in Whitfield, we held that a claimant
seeking to reinstate total disability status must establish that her work-related injury
continues, which she may do through her own testimony. Whitfield, ___ A.3d at
___, slip op. at 25 (citing Latta v. Workmen’s Compensation Appeal Board (Latrobe
Die Casting Co.), 642 A.2d 1083, 1085 (Pa. 1994)). Whitfield had testified she was
still disabled by her work injury, but the WCJ did not make any findings on her
credibility, having disposed of the case on the ground Protz I did not apply.
Accordingly, we vacated the Board’s order and remanded for further proceedings.
              As noted, Whitfield answers both of the issues raised in this case, i.e.,
whether Claimant waived the constitutional issue by failing to raise it at the time his
benefits were modified and whether the constitutional issue was barred by the
doctrine of administrative finality. Whitfield holds that the claim is not waived and
“finality” is not an issue, “so long as the [reinstatement] petition is filed within three

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.
5
  Notably, a reinstatement petition has long been understood to apply to a change in a claimant’s
earning power or a change in a claimant’s medical condition that caused the work injury to recur
or worsen. Stanek v. Workers’ Compensation Appeal Board (Greenwich Collieries), 756 A.2d
661 (Pa. 2000). Here, Claimant has used a reinstatement petition to reinstate benefits because of
a change in the law.
                                               8
years of the date of the most recent payment of compensation[.]” Whitfield, __ A.3d
at __, slip op. at 28. Here, when Claimant filed his reinstatement petition, he had
not yet exhausted his 500 weeks of partial disability. As such, the petition was filed
well within the applicable time constraints. Further, because no hearing has been
held on the merits of Claimant’s reinstatement petition, we must remand for further
proceedings to determine whether Claimant continues to be disabled by his work
injury.
             For all of the above reasons, the order of the Board is vacated and this
matter is remanded to the Board with direction to further remand to the WCJ to hold
a hearing on the merits of Claimant’s reinstatement petition.

                                    ______________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                          9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Edward J. Timcho, Jr.,                   :
                 Petitioner              :
                                         :
            v.                           :   No. 158 C.D. 2017
                                         :
Workers’ Compensation Appeal             :
Board (City of Philadelphia),            :
                   Respondent            :


                                   ORDER

            AND NOW, this 17th day of August, 2018, the order of the Workers’
Compensation Appeal Board dated January 13, 2017, in the above-captioned matter
is VACATED, and this matter is REMANDED for further proceedings consistent
with the foregoing opinion.
            Jurisdiction relinquished.

                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward J. Timcho, Jr.,              :
                                    :
                         Petitioner :
                                    :
                   v.               : No. 158 C.D. 2017
                                    : Argued: December 6, 2017
Workers' Compensation Appeal        :
Board (City of Philadelphia),       :
                                    :
                         Respondent :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge


CONCURRING OPINION
BY JUDGE WOJCIK                                              FILED: August 17, 2018



               I concur in the result reached by the Majority, because this Court’s
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), is controlling. However, I write separately to note my disagreement
with the Court’s holding in Whitfield that Section 413(a) of the Workers’
Compensation Act (Act)1 permits a modification of benefits under these facts.
               The Majority correctly observes that Section 413(a) requires a
modification petition to be filed within three years of the most recent payment of


      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772.
compensation. However, the Majority overlooks the critical statutory predicate for
an award under Section 413(a), i.e., “proof that the disability of an injured employe
has increased, decreased, ceased, [or] recurred . . . .” 77 P.S. §772.2 The Majority
acknowledges that “a reinstatement petition has long been understood to apply to a
change in a claimant’s earning power . . . .” Majority op. at 8, n.5.3 See also Stanek
v. Workers’ Compensation Appeal Board (Greenwich Collieries), 756 A.2d 661, 663
(Pa. 2000) (Section 413(a) provides for a modification of benefits “upon proof that
a claimant’s disability has increased”).
               I disagree that a subsequent change in the law satisfies the fundamental
requirement of Section 413(a) that a claimant seeking a reinstatement of
compensation payments prove a change in his or her earning power. Stanek.
               Our Supreme Court did not indicate whether it intended its holding in
Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 161
A.3d 827 (Pa. 2017), to be applied retroactively. I believe that this Court should
squarely address that issue.
               Accordingly, I concur in the result only.




                                              MICHAEL H. WOJCIK, Judge




       2
           Indeed, Section 413(a) states that “[s]uch modification [or] reinstatement . . . shall be
made as of the date upon which it is shown that the disability of the injured employe has increased
. . . .” 77 P.S. §772 (emphasis added).

       3
        Nevertheless, the Majority relies on this Court’s holding in Whitfield that a claimant need
only prove that her work-related injury (disability) continues. Majority op. at 8.
                                            MHW - 2
