A. Ellison v. SEPTA (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Andre Ellison, :

:

Petitioner :

: v. : No. 1080 C.D. 2020

: Submitted: March 12, 2021

SEPTA (Workers’ Compensation :

Appeal Board), :

:

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE WOJCIK FILED: August 20, 2021

Andre Ellison (Claimant) petitions for review of the order of the Workers’ Compensation Appeal Board (Board) affirming the decision of a workers’ compensation judge (WCJ), which granted Claimant’s petition to reinstate disability benefits in part, and reinstated benefits as of July 18, 2017, pursuant to the Workers’ Compensation Act (Act).1 We affirm.

The facts and history of this case, based on the findings of the WCJ, may be summarized as follows. On February 11, 1998, Claimant sustained an injury while in the course and scope of his employment with SEPTA (Employer). On March 11, 1998, Employer issued a Notice of Temporary Compensation Payable, which accepted Claimant’s work-related injury in the nature of a “lumbar strain/sprain.” Following a series of filings and petitions by both parties, ultimately, on November 19, 2007, a WCJ issued a decision granting Claimant’s Review Petition and amended a Notice of Compensation Payable to include two surgeries performed on Claimant’s accepted work-related disc herniation injury at L4-5 and L5-S1; granting Claimant’s Petition to reinstate disability benefits as of March 5, 2004; and denying Employer’s Petition to Modify and Petition to Suspend Claimant’s disability benefits.

On September 24, 2009, Claimant underwent an impairment rating evaluation (IRE) with Dennis J. Bonner, M.D., under former Section 306(a.2) of the Act.2 Dr. Bonner issued a medical report based on his IRE of Claimant that reflected a whole person impairment of 29% based on the 6th Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). On October 20, 2009, Employer issued a Notice of Change of Workers’ Compensation Disability Status indicating that Claimant reached a total of 104 weeks of total disability on February 11, 2000, and underwent the September 24, 2009 IRE, and that his benefits were changed from total to partial disability benefits effective September 24, 2009, based on the impairment rating of 29%. Claimant did not appeal the change of his disability status.

On July 18, 2017, following this Court’s opinion in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015) (Protz I), and the Pennsylvania Supreme Court’s opinion in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II),3 Claimant filed a Petition to Reinstate Compensation Benefits (Reinstatement Petition). The 500-week period for the payment of partial disability benefits4 had expired on July 11, 2015, before Claimant filed the Reinstatement Petition.

As this Court has explained:

In Protz [I], this Court held that former Section 306(a.2) of the Act[], was an unconstitutional delegation of legislative power, as it provided that an IRE should be performed under the “most recent” version of the [AMA Guides]. Protz I, 124 A.3d at 416. We directed that future IREs must utilize the Fourth Edition of the AMA Guides, the version in effect at the time Section 306(a.2) was enacted. Id. at 417. The Supreme Court affirmed this Court in Protz II, but struck down Section 306(a.2) in its entirety.

Act 111 reenacted the IRE provisions held unconstitutional in Protz II, with a few key differences. Unlike former Section 306(a.2) of the Act, which specified that an IRE must be conducted pursuant to the most recent version of the AMA Guides, an IRE under Act 111 must utilize the 6th Edition (second printing April 2009) of the AMA Guides. Act 111 also lowered the threshold percentage of disability by which a claimant’s disability status may be modified. Under former Section 306(a.2) of the Act, modification of disability status was appropriate if a claimant’s total disability was less than 50%. [Act 111 amended] Section 306(a.3)(1) of [the Act, which] lowered this threshold to 35%. Section 306(b) of the Act limits a claimant’s receipt of partial disability benefits to 500 weeks. 77 P.S. §512.

Ruggiero v. Commonwealth of Pennsylvania and Inservco Insurance Services, Inc. (Workers’ Compensation Appeal Board) (Pa. Cmwlth., No. 934 C.D. 2020, filed May 12, 2021), slip op. at 1-2 n.2. See also Pa. R.A.P. 126(b) (“As used in this rule, “non-precedential decision” refers to . . . an unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. [] Non-precedential decisions . . . may be cited for their persuasive value.”).

Repealed Section 306(a.2) of the Act provided that a claimant who had an impairment due to the work injury of less than 50% under the most recent edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment would receive partial disability benefits for 500 weeks. See former 77 P.S. §511.2(2).

Following an initial WCJ decision denying the Reinstatement Petition, and a remand by the Board, on October 22, 2019, following further hearings, the WCJ issued a decision granting the Reinstatement Petition in part, and directing Employer “to reinstate [] Claimant’s workers’ compensation benefits to temporary total disability status at the temporary total disability rate as of July 18, 2017.” Reproduced Record (R.R.) at 61a. The foregoing order was based on the WCJ’s conclusion that

[b]ased on the credible evidence of record, this [WCJ] finds that []Claimant’s 1998 work-related injury continued. . . . Employer’s evidence to the contrary has been rejected by this [WCJ] as not persuasive. As such, pursuant to Whitfield [v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018)], [] Claimant is entitled to reinstatement of compensation benefits as of July 18, 2017, the date of the filing of the [Reinstatement Petition].

R.R. at 59a.

Claimant appealed the WCJ’s decision to the Board, arguing that under Protz II, the IRE provisions of former Section 306(a.2) of the Act were determined to be void ab initio, so his disability benefits should have been reinstated as of September 24, 2009, the date of his unconstitutional IRE and not July 18, 2017, the date that he filed his Reinstatement Petition. The Board rejected this claim, stating, in relevant part:

In [Whitfield], the Commonwealth Court held that Section 413(a) of the Act, 77 P.S. §772, is applicable and provides a claimant with three years from the date of last payment of compensation to challenge a conversion from total to partial disability status, regardless of whether the claimant previously challenged the constitutionality of the IRE provisions. It further held that to be entitled to reinstatement of total disability benefits when the change in status was based upon a now-unconstitutional IRE, a claimant must demonstrate that he or she continues to be disabled from the work injury. [188 A.3d] at 614-16 . . . .

Claimant testified as to his continuing disability and treatment and the WCJ accepted his testimony. She determined that as per Whitfield, he is entitled to reinstatement to total disability status as of the date he filed his Reinstatement Petition.

Upon review, we affirm. We first reject the implication that Whitfield itself requires a different result. The Whitfield Court’s determination of the law . . . is clear. Further, in Weidenhammer v. [Workers’ Compensation Appeal Board] (Albright College), 232 A.3d 986 (Pa. Cmwlth.[), appeal denied, 242 A.3d 912 (Pa. 2020)], the court rejected the argument that Whitfield was wrongly decided and should be overturned. The application of Whitfield was also recently affirmed in Rose [Corporation v. Workers’ Compensation Appeal Board] (Espada), [238 A.3d 551 (Pa. Cmwlth. 2020)], and White [v. Workers’ Compensation Appeal Board] (City of Philadelphia), [237 A.3d 1225 (Pa. Cmwlth. 2020)].

The Whitfield Court specifically held that a claimant is entitled to reinstatement as of the date the petition for reinstatement of total disability benefits was filed. In accord with Whitfield, reinstatement is valid as of July 18, 2017.

R.R. at 86a. Accordingly, the Board issued an order affirming the WCJ’s decision, id. at 87a, and Claimant filed the instant petition for review of the Board’s order.5

In this appeal, Claimant contends that the Board erred in affirming the WCJ’s decision because it erroneously applied Whitfield as it was effectively overruled by Commonwealth v. McIntyre, 232 A.3d 609 (Pa. 2020), applying the void ab initio doctrine in a criminal proceeding challenging a purportedly invalid judgment of sentence, so his disability benefits should have been reinstated as of the date of the unconstitutional IRE, i.e., September 24, 2009, and not the date of his filing of the Reinstatement Petition, July 18, 2017.

In McIntyre, the Supreme Court stated the following, in relevant part:

As our Court has previously explicated, the void ab initio doctrine is rooted in a judicial imperative to protect individual constitutional rights, such as the right of due process, against transgression by coordinate branches of government:

Under this theory, a statute held unconstitutional is considered void in its entirety and inoperative as if it had no existence from the time of its enactment. The origin of this doctrine may lie in the early case of Marbury v. Madison[, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)], in which Chief Justice Marshall wrote that “a law repugnant to the constitution is void.”

Oliver P. Field, the most noted scholar on this issue has suggested that the void ab initio theory is premised on the historical American concern over excessive authority asserted by a tyrannical executive or legislative branch in violation of the rights of individuals protected by the Constitution. Field explains that whereas the Constitution prohibits the legislature and executive from overstepping their limits, the courts came to regard themselves as the ultimate guardians of individual rights. Any act that invaded these rights was to be judged unconstitutional and treated as though it never existed.

Glen-Gery [Corporation v. Zoning Hearing Board, 907 A.2d 1033, 1037 (Pa. 2006) (citation omitted)].

Thus, in Glen-Gery, following these precepts, our Court ruled that a claim alleging that a zoning ordinance was passed in a manner that deprived landowners of their due process rights to notice and an opportunity to be heard could be brought outside the time period allowed for bringing such challenges under the [Pennsylvania] Municipalities Planning Code[6] enacted by the General Assembly. We reasoned that such a challenge could not be dismissed as time-barred by legislative fiat, because, if the constitutional claim w[as] proven, the zoning ordinance would be void ab initio and, thus, judicially unenforceable. Glen-Gery, 907 A.2d at 1044-45.

McIntyre, 232 A.3d at 618.7

However, in Weidenhammer, we considered the application of the void ab initio doctrine in Glen-Gery, and applied it to the reinstatement of disability benefits under Protz II, explaining, in relevant part:

The right to disability compensation for a workplace injury was created by the Act, which has imposed limits and conditions on an injured employee’s right to compensation benefits. One such limit is found in Section 413(a) of the Act. It authorizes a WCJ to modify, reinstate, suspend or terminate compensation “at any time,” subject to the following provision:

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 of Labor and Industry (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).

In Cozzone ex rel. Cozzone v. Workers’ Compensation Appeal Board (PA Municipal/East Goshen Township), [73 A.3d 526 (Pa. 2013)], our Supreme Court held that the above-stated time bar in Section 413(a) operates as a statute of repose. Accordingly, once three years have passed since “the most recent payment of compensation” the claimant’s right to benefits is extinguished. Id. at 536; see also Sloane v. Workers’ Compensation Appeal Board (Children’s Hospital of Philadelphia), 124 A.3d 778, 785 (Pa. Cmwlth. 2015) (holding that because Section 413(a) of the Act acts as a statute of repose, a claimant whose benefits were suspended may seek reinstatement of total disability payments within three years of the last payment of benefits or the maximum 500 weeks allowed for partial disability, whichever is later).

Here, [the c]laimant’s statutory right to total disability compensation had been extinguished at the point in time that she filed her reinstatement petition. To allow claimant to resuscitate her right to disability compensation would violate Section 413(a) of the Act, 77 P.S. §772.

Claimant may be correct that Protz II rendered former Section 306(a.2) of the Act, formerly 77 P.S. §511.2(1), void ab initio, but it does not follow that the Pennsylvania

Supreme Court intended its ruling in Protz II to be given a fully retroactive effect or to nullify the statute of repose in Section 413(a) of the Act.

Weidenhammer, 232 A.3d at 993-94. As a result, this Court stated: “We hold that the ruling in Protz II was not intended to be given a fully retroactive effect, without regard to the statute of repose in Section 413(a) of the Act, 77 P.S. §772.” Id. at 995.

Importantly, this Court also noted the distinction between applying the void ab initio doctrine in a criminal matter, as in McIntyre, and applying it in proceedings under the Act, as herein, observing:

Full retroactive effect is generally reserved for criminal cases where life or liberty is at stake. See, e.g., Atkins v. Virginia, 536 U.S. 304, 317 [(2002)] (prohibition of execution of mentally disabled individuals required evaluation of all death-row inmates to determine mental competency); Commonwealth ex rel. O’Lock v. Rundle, [204 A.2d 439, 441 (Pa. 1964)] (right to counsel established in Gideon v. Wainwright, 372 U.S. 335 [(1963)], applied to those convicted prior to Gideon decision). [The c]laimant acknowledges this reality but argues that the void ab initio doctrine can be applied to civil cases. To that end, she cited provisions of the Pennsylvania Constitution. [The c]laimant’s right to workers’ compensation is, however, a statutory right and governed by the Act.

Weidenhammer, 232 A.3d at 995 n.12.

Based on the foregoing, it is clear that Claimant’s assertion that the Supreme Court’s opinion in McIntyre effectively overruled this Court’s holding in Whitfield is patently without merit. To the contrary, like the claimant in Weidenhammer, Claimant’s “statutory right to total disability compensation had been extinguished at the point in time that []he filed h[is] reinstatement petition,” “[t]o allow [C]laimant to resuscitate h[is] right to disability compensation would violate Section 413(a) of the Act,” and “it does not follow that the Pennsylvania Supreme Court intended its ruling in Protz II to be given a fully retroactive effect or to nullify the statute of repose in Section 413(a) of the Act.” Weidenhammer, 232 A.3d at 994.8 As a result, both the WCJ and the Board correctly applied this Court’s holding in Whitfield to reinstate Claimant’s compensation benefits effective July 18, 2017, the date that he filed his Reinstatement Petition, and not September 24, 2009, the date of his unconstitutional IRE. Moreover, as noted by the Board, Claimant specifically sought the reinstatement of his disability benefits as of July 18, 2017, in his Reinstatement Petition. See Certified Record Item No. 4. In sum, the Board did not err in affirming the WCJ’s decision in this matter.

Accordingly, the Board’s order is affirmed.

MICHAEL H. WOJCIK, Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andre Ellison, :

:

Petitioner :

: v. : No. 1080 C.D. 2020

:

SEPTA (Workers’ Compensation :

Appeal Board), :

:

Respondent :

ORDER

AND NOW, this 20th day of August, 2021, the order of the Workers’ Compensation Appeal Board dated October 13, 2020, is AFFIRMED.

__________________________________ MICHAEL H. WOJCIK, Judge