Opinion
1387 C.D. 2021
07-11-2023
Nancy Mastrome, Petitioner v. City of Philadelphia (Workers' Compensation Appeal Board) Respondent
OPINION NOT REPORTED
Submitted: June 10, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE STACY WALLACE, Judge.
MEMORANDUM OPINION
PATRICIA A. McCULLOUGH, JUDGE.
Nancy Mastrome (Claimant) petitions for review of the November 16, 2021 Order of the Workers' Compensation Appeal Board (Board) affirming the February 2, 2021 Decision and Order of the Workers' Compensation Judge (WCJ) that granted Claimant's reinstatement petition. The WCJ reinstated Claimant's benefits to temporary total disability (TTD) status from temporary partial disability (TPD) status effective July 13, 2019, the date the reinstatement petition was filed. Claimant argues that her benefits should be reinstated retroactive to May 21, 2012, the date her benefits were modified to TPD status pursuant to an Impairment Rating Evaluation (IRE). Upon review, we affirm the Board's Order.
Facts and Procedural History
The relevant facts are undisputed and may be summarized as follows. On February 3, 2001, Claimant was injured in a motor vehicle accident during the course and scope of her employment as a bicycle patrol police officer with the City of Philadelphia (Employer). On December 17, 2002, Employer issued an Amended Notice of Compensation Payable (NCP) in which Claimant's pelvic, cervical, lumbar and head injuries were acknowledged and it was noted that Claimant began to receive salary continuance benefits in lieu of workers' compensation. On December 1, 2004, the WCJ issued a Decision and Order in which she found that Claimant suffered emotional and urinary injuries in addition to the injuries identified in the NCP.
On May 21, 2012, Claimant underwent an IRE conducted by Michael Fischer, M.D., pursuant to former Section 306(a.2) of the Workers' Compensation Act (Act). Dr. Fischer opined that Claimant had a total whole-person impairment rating of 5% (less than 50%). On July 3, 2012, Employer filed a petition for modification of benefits based upon Dr. Fischer's IRE. Thereafter, the parties stipulated to a modification of Claimant's benefit status from TTD to TPD effective May 21, 2012. By a Decision and Order circulated on October 24, 2012, the WCJ approved the Stipulation reducing Claimant's benefits to TPD status.
Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 24, 1996, P.L. 350, formerly 77 P.S. §511.2, repealed by Section 1 of the Act of October 24, 2018, P.L. 714, No. 111 (Act 111).
WCJ Decision and Order
On July 31, 2019, Claimant filed a reinstatement petition seeking a return to TTD status effective July 31, 2019 based upon the Supreme Court's decision in Protz v. Workers' Compensation Appeal Board (Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015) (Protz I), affirmed, 161 A.3d 827 (Pa. 2017) (Protz II), holding that the IRE provisions contained in former Section 306(a) of the Act violated the non- delegation doctrine of the Pennsylvania Constitution and striking former Section 306(a.2) in its entirety from the Act.
Contrary to the pending claim before this Court, Claimant initially requested reinstatement of TTD status effective July 31, 2019, the date the reinstatement petition was filed, and not May 21, 2012, the date of the IRE. See Claimant's Reinstatement Petition. (Reproduced Record (R..R.) at 5a.)
On February 2, 2021, the WCJ granted Claimant's reinstatement petition, reinstating Claimant's TTD status effective July 31, 2019, the date the reinstatement petition was filed, pursuant to Whitfield v. Workers' Compensation Appeal Board (Tenet Health System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018) (en banc). (WCJ Decision and Order, 2/2/21, Conclusions of Law No. 2; R.R. at 20a.) Claimant then appealed to the Board, arguing that her reinstatement of benefits should have been effective as of the May 21, 2012 modification date.
Board's Opinion
On appeal to the Board, Claimant's appeal was limited to only the issue of whether the WCJ correctly reinstated Claimant's TTD status effective July 31, 2019, the date she filed her reinstatement petition, or whether her TTD status should have been reinstated as of May 21, 2012, the date of the IRE and when her benefit status was initially changed from total to partial disability. The Board found no error and affirmed the WCJ Decision and Order. Claimant's petition for review in this Court followed.
Our scope of review in a workers' compensation appeal 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. Pocono Mountain School District v. Kojeszewski (Workers' Comp. Appeal Board), 280 A.3d 12, 16 n.4 (Pa. Cmwlth. 2022).
Analysis
Claimant argues that her benefits should be reinstated as of May 21, 2012, the date of the original IRE modification because, when the Pennsylvania Supreme Court issued its decision in Protz II it severed all IRE provisions from the Act, declaring that the provisions were unconstitutional and, therefore, void from the moment of enactment. She contends that despite the Supreme Court's holding, the WCJ only reinstated Claimant to TTD benefit status as of the date she filed her reinstatement petition. Thus, she argues, the Board's opinion allows for an unconstitutional statute to continue to negatively impact her. She further contends that she had a substantive, vested property right to TTD benefits, established on the date of her work accident, which was entitled to constitutional protection under the Remedies Clause, article I, section 11, of the Pennsylvania Constitution (precluding retroactive legislative enactments altering vested rights).
Claimant's arguments as to why she should be reinstated as of the date of the IRE are not novel and have been previously rejected by this Court. In Weidenhammer v. Workers' Compensation Appeal Board (Albright College), the Court rejected the claimant's void ab initio and new rule-of-law arguments, stating "it does not follow that the Pennsylvania Supreme Court intended its ruling in Protz II to be given a fully retroactive effect . . . ." 232 A.3d 986, 994 (Pa. Cmwlth. 2020). See also George v. City of Philadelphia (Workers' Compensation Appeal Board) (Pa. Cmwlth., No. 23 C.D. 2022, filed Oct. 11, 2022), slip op. at 9-10; Ellison v. SEPTA (Workers' Compensation Appeal Board) (Pa. Cmwlth., No. 1080 C.D. 2020, filed Aug. 20, 2021), slip op. at 9-10. Claimant's vested rights argument under the Remedies Clause was rejected by the Court in DiPaolo v. UPMC Magee Women's Hospital (Workers' Compensation Appeal Board), 278 A.3d 430, 435 (Pa. Cmwlth. 2022), appeal denied (Pa., No. 191 WAL 2022, filed Jan. 3, 2023), and Pierson v. Workers' Compensation Appeal Board (Consol Pennsylvania Coal Company LLC), 252 A.3d 1169 (Pa. Cmwlth. 2021).
Unreported panel decisions of this Court may be cited for their persuasive value pursuant to Rule 126(b)(1) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P 126(b)(1), and Section 414(a) of this Court's Internal Operating Procedures, 210 Pa. Code § 69.414(a).
In summary, the Court has repeatedly declined to give full retroactive effect to Protz in circumstances, such as this, where the claimant was not actively litigating the change in her disability status at the time Protz was decided. Consistent with this precedent, Claimant's disability status was properly reinstated to TTD as of the date she filed her reinstatement petition. Accordingly, we affirm the Board's Order.
ORDER
AND NOW, this 11th day of July, 2023, the Order of the Workers' Compensation Appeal Board, dated November 16, 2021, is AFFIRMED.