J. Perillo v. WCAB (Extended Healthcare Services, Inc. & SWIF)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jacqueline Perillo, :

Petitioner : :

v. :

:

Workers’ Compensation Appeal :

Board (Extended Healthcare Services, :

Inc. and State Workers’ Insurance :

Fund), : No. 649 C.D. 2020

Respondents : Submitted: December 4, 2020 BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1

HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COVEY FILED: March 3, 2021

Jacqueline Perillo (Claimant) petitions this Court for review of the Workers’ Compensation (WC) Appeal Board’s (Board) June 10, 2020 order affirming Workers’ Compensation Judge Joseph Sebastianelli’s (WCJ Sebastianelli) decision granting Claimant’s petitions to modify Claimant’s WC benefits from partial to total disability and to reinstate Claimant’s WC benefits to total disability (collectively, Petitions), finding that the Claimant was entitled to reinstatement of her total disability WC benefits as of March 2, 2018, the date she filed the Petitions. Essentially, Claimant presents one issue for this Court’s review: whether the Board’s decision deprives Claimant of a vested right to WC benefits and improperly gives force to an unconstitutionally invalid statute pursuant to Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II).2 After review, this Court affirms.

On October 9, 2003, Claimant sustained a compensable work-related injury for which she received total disability benefits. Thereafter, Employer filed a modification petition based upon an impairment rating evaluation (IRE) performed on October 4, 2011, which WCJ Mark A. Peleak (WCJ Peleak) granted on July 16, 2012.3 WCJ Peleak modified Claimant’s WC benefits from total to partial disability as of October 4, 2011. On March 2, 2018, Claimant filed the Petitions alleging that her total disability benefits should be reinstated because the IRE process was deemed unconstitutional by Protz II. Claimant sought reinstatement of her total disability benefits retroactive to October 4, 2011. On July 29, 2019, WCJ Sebastianelli granted Claimant’s Petitions, but reinstated Claimant’s WC benefits to total disability effective March 2, 2018, the date she filed the Petitions. Claimant and Employer appealed to the Board. On June 10, 2020, the Board affirmed WCJ Sebastianelli’s decision. Claimant appealed to this Court.4,5

Claimant argues that the Board’s decision deprives Claimant of a vested right to WC benefits and improperly gives force to an unconstitutionally invalid statute. Specifically, Claimant contends that WCJ Sebastianelli should have reinstated Claimant’s total disability benefits as of the date of the constitutionally invalid October 4, 2011 IRE pursuant to Protz II.

Employer rejoins that, because Claimant did not challenge the validity of the October 4, 2011 IRE until after Protz II was decided, Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018), and its progeny, mandate that Claimant is not entitled to reinstatement as of the IRE date.

In discussing the retroactivity of Protz II, the Whitfield Court opined: Our decision today does not impose any new legal consequences based upon a past transaction. Simply because Protz II is being applied to a case that arose from a work injury and a change in disability status that predates it does not mean it operates retroactively. It would be retroactive if it related back and gave a prior transaction a legal effect different from that which it had under the law in effect at the time. This decision does not alter Claimant’s past status. Rather, it gives effect to the Claimant’s status as it existed at the time she filed her reinstatement petition, which was filed within the statutory timeframe for filing such petitions.

Whitfield, 188 A.3d at 617 (underline emphasis added; citations omitted); see also Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada), 238 A.3d 551, 564 (Pa. Cmwlth. 2020) (“[T]he Board’s conclusion that [the c]laimant was entitled to reinstatement of total disability benefits as of the date [the c]laimant filed the [reinstatement p]etition is consistent with Act 111,[6] the WC Act [(Act)],[7] and precedent.”); White v. Workers’ Comp. Appeal Bd. (City of Phila.), 237 A.3d 1225, 1231 (Pa. Cmwlth. 2020) (“[The c]laimant’s modification from total to partial disability was effective in 2013 and had not been appealed. Accordingly, [the c]laimant [] is entitled to reinstatement as of the date of her reinstatement petition, not the effective date of the change in her disability status from total to partial.”) (emphasis added).

Claimant attempts to distinguish Whitfield by claiming that, unlike the claimant in Whitfield, Claimant was still receiving WC benefits when Protz II was decided. Thus, Claimant asserts that, because Claimant filed her Petitions within the 500-week period that she was receiving partial disability benefits,8 Claimant should get the full benefit of Protz II.

Claimant misconstrues the holding in Whitfield. The Whitfield Court explained that, because Section 413(a) of the Act provides that “[a] [WCJ] . . . may, at any time, modify, reinstate, suspend, or terminate [WC benefits] . . . upon petition filed by either party . . . , upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased . . . ,” there are no vested rights in WC benefits. 77 P.S. § 772; see also Whitfield. Further, the Whitfield Court ruled that, because Section 413(a) of the Act expressly states that the petition must be “filed . . . within three years after the date of the most recent payment of compensation made prior to the filing of such petition[,]” the claimant therein timely filed her petition. Id.

In Whitfield, the timing of Protz II had no bearing on the date of the reinstatement of the claimant’s WC benefits. Rather, the date of reinstatement of WC benefits was the date of the petition because the determination was based on the claimant’s status as of the date of the filing. Whitfield. Consequently, the fact that Claimant herein was receiving WC benefits when Protz II was filed, and the claimant in Whitfield was not, is of no moment. Because Claimant did not challenge the October 4, 2011 IRE until after Protz II was decided, she is in the same position as the Whitfield claimant.9 Accordingly, pursuant to Section 413(a) of the Act, Claimant has no vested right to WC benefits and no entitlement to reinstatement of her total disability effective as of her October 4, 2011 IRE.10

For all of the above reasons, the Board’s order is affirmed.

___________________________ ANNE E. COVEY, Judge

Judge Leavitt concurs in the result only.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jacqueline Perillo, :

Petitioner : :

v. :

:

Workers’ Compensation Appeal :

Board (Extended Healthcare Services, :

Inc. and State Workers’ Insurance :

Fund), : No. 649 C.D. 2020

Respondents :

ORDER

AND NOW, this 3rd day of March, 2021, the Workers’ Compensation Appeal Board’s June 10, 2020 order is affirmed.

___________________________ ANNE E. COVEY, Judge