IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gemini Bakery Equipment, :
Petitioner :
:
v. : No. 781 C.D. 2020
: Submitted: December 11, 2020
Workers’ Compensation Appeal :
Board (Mensch), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: April 23, 2021
Gemini Bakery Equipment (Employer) petitions for review from the
July 14, 2020 order of the Workers’ Compensation Appeal Board (Board) that
affirmed the workers’ compensation judge’s (WCJ) decision and order, on remand
from the Board, granting the petition for reinstatement of workers’ compensation
benefits (Reinstatement Petition) filed by Keith Mensch (Claimant).
I. Background
Claimant sustained a work-related injury, in the nature of a lumbar
spine sprain, on January 17, 2012, and began receiving temporary total disability
(TTD) workers’ compensation benefits pursuant to a Notice of Compensation
Payable. On March 26, 2014, Claimant attended an impairment rating evaluation
(IRE) with a doctor who determined he had a whole body impairment rating of 16%.1
Thus, on June 2, 2014, Claimant’s benefits were changed from TTD to partial
disability, effective January 21, 2014, per former Section 306(a.2) of the
Pennsylvania Workers’ Compensation Act (Act).2 Formerly 77 P.S. §511.2.3
Reproduced Record (R.R.) at 28a.
On December 6, 2017, Claimant filed the instant Reinstatement
Petition4 alleging that his workers’ compensation benefits should be reinstated to
1
It is not readily apparent from the record which edition of the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (Guides) was used in reaching
this determination.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
3
Former Section 306(a.2) of the Act, formerly 77 P.S. §511.2, read, in pertinent part:
(1) When an employe has received total disability compensation pursuant to
clause (a) for a period of one hundred four weeks … the employe shall be required
to submit to a medical examination … 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 . . . 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 . . . the employe shall be presumed to be totally
disabled and shall continue to receive total disability compensation benefits . . . . If
such determination results in an impairment rating less than fifty per centum
impairment . . . the employe shall then receive partial disability benefits under
clause (b) . . . .
Former Section 306(a.2)(1) of the Act, as amended, added by Section 4 of the Act of June 24,
1996, P.L. 350, formerly 77 P.S. § 511.2, repealed by the Act of October 24, 2018, P.L. 714, No.
111 (emphasis added). Subparagraph (b) referenced above provides for payment of partial
disability for no more than 500 weeks. Section 306(b)(1) of the Act, 77 P.S. §512(1), limits a
claimant’s receipt of partial disability benefits to 500 weeks.
4
Claimant had also previously filed a petition for penalties, which was dismissed by the
WCJ and was not appealed to the Board. Thus, we do not address it here.
2
TTD as of March 26, 2014, because “[t]he limitation of 500 weeks of partial
disability is no longer applicable since [IREs] have been ruled unconstitutional” by
our Supreme Court’s opinion in Protz v. Workers’ Compensation Appeal Board
(Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II).5 R.R. at 5a.
Employer filed an answer to Claimant’s Reinstatement Petition, denying Claimant’s
assertion of a right to reinstatement of TTD benefits. R.R. at 8a. The matter was
assigned to the WCJ who heard testimony and weighed the evidence of record. The
WCJ issued a decision and order on April 30, 2018, reinstating Claimant’s TTD
benefits as of January 21, 2014, the effective date of the change in Claimant’s
benefits from total to partial disability. R.R. at 30a. Both Claimant and Employer
appealed to the Board, and on April 30, 2019, the Board remanded the matter to the
WCJ to re-open the record and allow the parties “to seek appropriate remedies in
accordance with the current state of the law,” including this Court’s opinion in
Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System
Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018), which was filed in June 2018,
after the parties had appealed the WCJ’s decision. R.R. at 40a.
In Whitfield, we considered the issue of whether a claimant, who had
her disability status modified in 2008, based on what had become an unconstitutional
IRE, was entitled to the benefit of Protz II. Critically in Whitfield, the claimant had
failed, for over seven years, to challenge the constitutionality of the IRE upon which
5
In Protz II, filed on June 20, 2017, our Supreme Court addressed the issue of the
constitutionality of former Section 306(a.2) of the Act, formerly 77 P.S. § 511.2, and held that the
General Assembly unconstitutionally delegated its lawmaking authority in violation of the non-
delegation doctrine of article II, section 1 of the Pennsylvania Constitution (Pa. Const. art. II, §1
states: “The legislative power of this Commonwealth shall be vested in a General Assembly,
which shall consist of a Senate and a House of Representatives.”). Thus, the Protz II Court struck
former Section 306(a.2), formerly 77 P.S. § 511.2, in its entirety, from the Act.
3
her modification of benefits was based. Additionally, in Whitfield, the claimant had
her TTD benefits converted to partial disability benefits based on a June 13, 2006
IRE performed under the Fifth Edition of the Guides and received benefits until her
last payment of compensation in mid-July 2015.
In Whitfield, the claimant filed her reinstatement petition in November
2015, prior to our Supreme Court’s 2017 opinion in Protz II.6 However, before the
litigation of the reinstatement petition had concluded, our Supreme Court filed the
Protz II opinion, striking the IRE provision of the Act as unconstitutional.
Subsequently, this Court, in Whitfield, held that a claimant within three years of her
last workers’ compensation payment is entitled to reinstatement of TTD benefits, as
long as she proves that her work injury continues. We added that this could be
proven by the claimant’s own testimony. At that point, the burden shifts to the
employer to prove the contrary. We stated that, in such an instance, so long as the
claimant’s testimony is credited, and the employer presents no evidence to the
contrary, the claimant is entitled to reinstatement to TTD as of the date the
reinstatement petition was filed.
In the present matter, on remand from the Board, the WCJ conducted a
hearing on July 15, 2019, at which Claimant testified he last worked on January 17,
6
The claimant in Whitfield filed her reinstatement petition approximately one month after
our October 7, 2015 opinion in Protz v. Workers’ Compensation Appeal Board (Derry Area School
District), 124 A.3d 406 (Pa. Cmwlth. 2015) (Protz I) but before our Supreme Court’s opinion in
Protz II. In Protz I, we held that former Section 306(a.2) of the Act, formerly 77 P.S. § 511.2, was
an unconstitutional delegation of legislative authority insofar as it prospectively approved versions
of the Guides beyond the Fourth Edition without review. (The Fourth Edition of the Guides was
in effect at the time the IRE provisions of the Act were first enacted.) As a result, in cases in which
the issue was properly preserved, we vacated decisions where the change in disability status had
been based on IREs performed using the Fifth or subsequent editions of the Guides and remanded
for evaluations under the Fourth Edition of the Guides. After we filed our opinion in Protz I, the
claimant in Whitfield filed her reinstatement petition seeking to nullify her IRE, which, as noted
above, had been performed using the Fifth Edition of the Guides.
4
2012. He also testified in regard to his medications related to the work injury, and
he testified about his difficulty sleeping. Employer presented no evidence in defense
but advised that it was defending purely on the legal issue of whether Protz II is
retroactive in its application. R.R. at 69a; WCJ’s Decision and Order, 9/9/2019,
Finding of Fact (FOF) Nos. 6 and 7. In his September 9, 2019 decision and order
on remand, the WCJ determined Claimant’s testimony was credible and unrebutted
by Employer, and, thus, Claimant had met his burden, pursuant to Whitfield, that his
work injury continued. FOF No. 11. Accordingly, the WCJ reinstated Claimant’s
benefits as of December 6, 2017, the date upon which Claimant filed his
Reinstatement Petition. Id.; R.R. at 70a. Employer appealed to the Board.
The Board opined:
While [Employer] argues that Claimant waived the issue of his IRE
being unconstitutional by not previously raising that issue in prior
litigation, the Whitfield court specifically held that a claimant has a right
to reinstatement under Section 413(a) of the Act[7] regardless of whether
the claimant previously challenged the constitutionality of the IRE
provisions. The Whitfield court also held that as long as a claimant files
his reinstatement petition within three years of the last payment of
compensation, he is entitled to a reinstatement as of the date of the filing
of the reinstatement petition. Here, because Claimant was still within
the 500[-]week IRE period, and still was receiving payments when he
filed his Reinstatement Petition, he met the criteria to be eligible for
reinstatement under Whitfield. Furthermore, the WCJ accepted
Claimant’s testimony that he continued to be disabled from his work
7
Section 413(a) of the Act, 77 P.S. §772, states, in pertinent part:
A workers’ compensation judge designated by the department may, at any
time, modify, reinstate, suspend, or terminate a notice of compensation payable, an
original or supplemental agreement or an award of the department or its workers’
compensation judge, upon petition filed by either party with the department, upon
proof that the disability of an injured employe has increased, decreased, recurred,
or has temporarily or finally ceased, or that the status of any dependent has changed
....
5
injury, and thus, he met his burden under Whitfield to be entitled to a
reinstatement. Consequently, we determine no error.
R.R. at 81a-82a; Bd. Op., 7/14/2020, at 3-4.
Additionally, in its appeal to the Board, Employer argued that it was
entitled to a credit for any partial disability benefits it paid to Claimant since January
21, 2014, per Act 111.8
The Board noted that it agreed with the WCJ, who had determined:
“‘Act 111 is not relevant to the pending issues before this [WCJ] as Claimant’s
benefits were modified under [former] Section 306(a.2) and not Section 306(a.3),’”
adding
[w]hile Act 111 does contain a provision allowing for a credit for weeks
of partial compensation paid, that credit provision is triggered only
when the IRE process is initiated under Section 306(a.3)(1) of Act 111.
Here, because [Employer] has not initiated the IRE process under the
8
On October 24, 2018, Act 111 took effect, replacing Section 306(a.2) of the Act with new
Section 306(a.3). Section 306(a.3) of the Act reads in pertinent part:
When an employe has received total disability compensation pursuant to clause (a)
for a period of one hundred four weeks . . . the employe shall be required to submit
to a medical examination . . . 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 . . . pursuant to the most recent edition of
the [AMA Guides], 6th edition (second printing April 2009) . . . . (2) If such
determination results in an impairment rating that meets a threshold impairment
rating that is equal to or greater than thirty-five per centum . . . the employe shall
be presumed to be totally disabled and shall continue to receive total disability
compensation benefits . . . . If such determination results in an impairment rating
less than thirty-five per centum impairment…the employe shall then receive partial
disability benefits under clause (b) . . . .
Section 306(a.3) of the Act, added by the Act of October 24, 2018, P.L. 714, No. 111, 77 P.S.
§511.3 (emphasis added).
Section 3(2) of Act 111 states: “For the purposes of determining the total number of weeks of
partial disability compensation payable under section 306(a.3)(7) of the Act, an insurer shall be
given credit for weeks of partial disability compensation paid prior to the effective date of this
paragraph.” 77 P.S. §511.3, Historical and Statutory Notes.
6
new IRE provisions of Act 111, the credit provisions have not been
triggered. Therefore, the WCJ did not err in concluding that Act 111
[is] not relevant to the pending issues.
R.R. at 82a; Bd. Op., 7/14/2020, at 4. Thus, the Board affirmed the order of the WCJ
granting Claimant’s Reinstatement Petition. Employer now petitions this Court for
review.9
II. Arguments
A. Employer’s Arguments
Employer argues that our Supreme Court’s opinion in Protz II should
apply only to the parties to that litigation and to cases “in which litigation or an
appeal was pending at the time . . . in which the issue of the constitutionality of
[former] Section 306(a.2) [of the Act, formerly 77 P.S. § 511.2,] was properly raised
and preserved,” which was not the case in the present matter where Claimant did not
file his Reinstatement Petition until after our Supreme Court filed its Protz II
opinion. Employer’s Br. at 10.
Employer adds that since former Section 306(a.2) of the Act is not
considered void ab initio, Claimant’s IRE determination and change in status should
not have been set aside based solely on Claimant’s testimony that he has not returned
to work.10 Employer’s Br. at 12.
9
Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa. 2013).
10
In his September 9, 2019 Decision, the WCJ found that “Claimant has not worked since
2012 and continues to treat for his work injury, noting he had difficulties with sleeping due to his
work injury and is not working. Employer did not present any evidence to dispute Claimant’s
testimony.” R.R. at 70a, WCJ’s Decision and Order, 9/9/2019, FOF No. 11.
7
In addition, Employer asserts that Claimant, here, is not like the
claimant in Whitfield who filed and litigated her petition challenging her IRE while
the decision in Protz II was pending and, thus, Whitfield should not control.
Further, Employer suggests that this Court based its opinion in
Whitfield on “the erroneous proposition that employers and insurers are not
prejudiced by the blanket retroactive application of Protz [II] despite the fact that
employers and insurers that had relied upon the now-unconstitutional provisions of
the [Act] for over 20 years now face uncertainty with regard to hundreds, if not
thousands, of claims.” Employer’s Br. at 13-14.
In its Petition for Review to this Court, Employer did not specifically
raise the issue of whether it was entitled to credit for weeks of partial disability it
paid prior to the reinstatement of Claimant’s TTD benefits.
B. Claimant’s Arguments
Claimant argues that the Board’s Order should be affirmed because it
correctly applied this Court’s opinion in Whitfield, which provides that reinstatement
of benefits from partial to total disability is permissible back to the date of the filing
of the reinstatement petition. Claimant’s Amended Br. at 13. Further, Claimant
adds that a claimant’s workers’ compensation status is not truly “final” until three
years after the date of last payment, and in the present matter, he had not reached
that point, as he was still within his 500 weeks of partial disability under the Act.
Thus, Claimant maintains that he remained within his right to seek reinstatement of
TTD benefits. Claimant’s Amended Br. at 13-14.
8
III. Discussion
Although Employer argues to the contrary, Whitfield controls in the
present case in that Claimant is entitled to reinstatement of TTD as of the date he
filed his Reinstatement Petition. Employer essentially wishes to re-argue Whitfield,
suggesting that this Court based its opinion there on “the erroneous proposition that
employers and insurers are not prejudiced by the blanket retroactive application of
Protz [II] despite the fact that employers and insurers that had relied upon the now-
unconstitutional provisions of the [Act] for over 20 years now face uncertainty with
regard to hundreds, if not thousands, of claims.” Employer’s Br. at 13-14. In
response to Employer’s assertion in this regard, we reiterate our position in Whitfield
that “[a]llowing [the c]laimant to seek modification under these circumstances does
not prejudice employers or insurers by upsetting their expectation of finality because
such determinations are not yet truly ‘final’ until three years have passed since the
date of last payment.” Whitfield, 188 A.3d at 617. As further indicia of this Court’s
position on the application of Protz II, we note our recent opinion in White v.
Workers’ Compensation Appeal Board (City of Philadelphia), 237 A.3d 1225 (Pa.
Cmwlth. 2020), which more closely approximates the fact scenario presently before
us to the extent it also involved a claimant within her 500-week period of partial
disability at the time she filed her reinstatement petition.
In White, the claimant sustained a work-related injury on January 27,
2005. On December 4, 2013, she underwent an IRE, per former Section 306(a.2) of
the Act. The doctor who conducted the IRE, utilizing the Sixth Edition of the
Guides, determined that the claimant had a 36% whole body impairment rating. As
a result, the employer filed a modification petition, which was granted, modifying
the claimant’s disability status from TTD to partial disability, for a period of 500
9
weeks, effective December 4, 2013. The claimant did not appeal this modification
of her benefits. On October 7, 2015, prior to the expiration of her 500 weeks of
partial disability benefits, the claimant filed a reinstatement petition seeking to
nullify her IRE based on this Court’s decision in Protz I.
Before the conclusion of the litigation of the claimant’s reinstatement
petition in White, our Supreme Court issued its opinion in Protz II, holding that the
IRE provisions of former Section 306(a.2) of the Act violated the non-delegation
doctrine of the Pennsylvania Constitution. As a result, the Court struck the entirety
of the section from the Act. In White, we determined that the claimant’s
modification from TTD to partial disability had been effective in 2013 and was not
appealed. Accordingly, we opined that as long as the claimant could establish her
work injury continued, she was entitled to reinstatement of TTD benefits as of the
date she filed her reinstatement petition, in 2015, rather than the effective date of the
change in her disability status from TTD to partial disability in 2013. This is much
the same as in the matter sub judice.
Claimant, here, also filed his Reinstatement Petition while still within
his 500-week period of partial disability and was returned to TTD by the WCJ as of
the date of the Petition. In addition, Claimant satisfied the requirement of credibly
testifying that his work injury continues, and Employer provided no evidence to
contradict Claimant’s testimony in this regard. Thus, the WCJ and the Board did
not err when it returned Claimant to TTD as of December 6, 2017 – the date on
which he filed his Reinstatement Petition. As we noted in Whitfield,
[s]imply 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
10
[c]laimant’s past status. Rather, it gives effect to the [c]laimant’s
status as it existed at the time [claimant] filed [the] reinstatement
petition, which was filed within the statutory timeframe for filing
such petitions.
Whitfield, 188 A.3d at 617 (internal citations omitted) (emphasis added). We
acknowledge Employer’s efforts to distinguish between otherwise similarly situated
claimants who filed their respective reinstatement petitions before our Supreme
Court’s opinion in Protz II and those who filed after, such as Claimant in the present
matter. However, in both instances, we have consistently reached the same results.
In Burk v. Workers’ Compensation Appeal Board (School District of Philadelphia)
(Pa. Cmwlth., No. 491 C.D. 2020, filed December 22, 2020), and Extended Health
Care Services, Inc. v. Workers’ Compensation Appeal Board (Perillo) (Pa. Cmwlth.,
No. 620 C.D. 2020, filed March 3, 2021), both involving claimants who, like the
present Claimant, filed their respective petitions to reinstate TTD benefits after our
Supreme Court’s opinion in Protz II, we determined that the same rule applies, i.e.,
as long as the claimant meets the requirements set out in Whitfield, TTD will be
reinstated, and it will be reinstated as of the date the petition was filed.
Turning to the matter of credit weeks and Act 111, we note that
Employer did not specifically raise the issue of an entitlement to credit weeks in its
petition for review, but we acknowledge that Act 111 contains a provision allowing
an employer credit for any weeks of partial disability compensation it has previously
paid.11 However, that provision is not triggered until the IRE process is begun under
11
As we opined in Rose Corporation v. Workers’ Compensation Appeal Board (Espada),
238 A.3d 551 (Pa. Cmwlth. 2020), the General Assembly made it clear in Act 111 that weeks of
TTD and partial disability paid by an employer/insurer prior to the enactment of Act 111 count as
credit against an employer’s new obligations under Act 111. In Rose Corporation, we said the
following in reference to Act 111:
11
Section 306(a.3), which did not occur in the case sub judice. Thus, the issue of
whether Employer is entitled to partial disability credit weeks paid was not relevant
to the issues before the WCJ and the Board and is not relevant to our determination
herein.
IV. Conclusion
For the foregoing reasons, we affirm the Board’s July 14, 2020 order.
______________________________
J. ANDREW CROMPTON, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
The plain language of Section 3 establishes a mechanism by which
employers/insurers may receive credit for weeks of compensation previously paid.
First, Section 3(1) provides that an employer/insurer “shall be given credit for
weeks of total disability compensation paid prior to the effective date of this
paragraph” for purposes of determining whether the 104 weeks of total disability
had been paid. This 104 weeks is important because, under both the former and
current IRE provisions, a claimant need not attend an IRE until after the claimant
receives 104 weeks of total compensation. 77 P.S. §[511.3(1)]; former . . . 77 P.S.
§[511.2(1)]. See Section 3(1) of Act 111. Therefore, pursuant to Section 3(1), an
employer/insurer will receive credit towards this 104 weeks for any weeks of total
disability benefits that were previously paid prior to Act 111’s enactment. Second,
an employer/insurer will be given credit for any weeks of partial disability
compensation paid prior to enactment of Act 111 “[f]or the purposes of determining
the total number of weeks of partial disability compensation payable under
[S]ection 306(a.3)(7) of the [WC A]ct.” Section 3(2) of Act 111. In short, any
weeks of partial disability previously paid will count towards the 500-week cap on
such benefits.
Rose Corp., 238 A.3d at 561-62.
We added: “Through the use of very careful and specific language, the General Assembly
provided employers/insurers with credit for the weeks of compensation . . . previously paid.” Rose
Corp., 238 A.3d at 562.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gemini Bakery Equipment, :
Petitioner :
:
v. : No. 781 C.D. 2020
:
Workers’ Compensation Appeal :
Board (Mensch), :
Respondent :
ORDER
AND NOW, this 23rd day of April 2021, the July 14, 2020 Order of the
Workers’ Compensation Appeal Board is AFFIRMED.
______________________________
J. ANDREW CROMPTON, Judge