IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kathleen Vanston, :
Petitioner :
:
v. : No. 933 C.D. 2020
:
Marian Community Hospital, :
Indemnity Insurance Company :
of North America and ESIS, Inc. :
(Workers’ Compensation Appeal :
Board), :
Respondents :
Marian Community Hospital and :
Indemnity Insurance Company of :
North America, and ESIS, Inc., :
Petitioners :
:
v. : No. 947 C.D. 2020
:
Kathleen Vanston (Workers’ :
Compensation Appeal Board), :
Respondent : SUBMITTED: April 12, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge (P.)
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: May 12, 2021
Kathleen Vanston (Claimant) petitions this Court for review of the August 31,
2020 order of the Workers’ Compensation Appeal Board (Board), which affirmed
the decision of a workers’ compensation judge (WCJ) reinstating Claimant’s total
disability benefits, effective July 25, 2017. The WCJ reinstated Claimant’s total
disability benefits pursuant to Protz v. Workers’ Compensation Appeal Board (Derry
Area School District), 161 A.3d 827 (Pa. 2017) (Protz II), which rendered the
impairment rating evaluation (IRE) provisions in the Workers’ Compensation Act
(Act)1 unconstitutional.2 The issue before this Court is whether the WCJ erred in
reinstating Claimant’s benefits on July 25, 2017, the date she filed her reinstatement
petition.3
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
2
A claimant who has received total disability benefits for 104 weeks must submit to an
IRE, which is used to calculate the claimant’s degree of impairment due to the compensable injury.
See Section 306(a.3)(1) of the Act, 77 P.S. § 511.3(1), added by the Act of October 24, 2018, P.L.
714 (Act 111). In Protz v. Workers' Compensation Appeal Board (Derry Area School District),
124 A.3d 406, 416 (Pa. Cmwlth. 2015) (Protz I), aff’d, 161 A.3d 827 (Pa. 2017), this Court held
that former Section 306(a.2) of the Act, added by the Act of June 24, 1996, P.L. 350, formerly 77
P.S. § 511.2, repealed by Section 1 of Act 111, was an unconstitutional delegation of legislative
power, as it provided that an IRE should be performed under the “most recent” version of the
American Medical Association’s Guides to the Evaluation of Permanent Impairment (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 Sixth 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%. Section 306(a.3)(1) of Act 111 lowered this
threshold to 35%.
3
Marian Community Hospital, Indemnity Insurance Company of North America, and
ESIS, Inc. (collectively, Employer) petitioned this Court for review of the Board’s August 31,
2020 order in a separate matter docketed at 947 C.D. 2020. The two cases were consolidated by a
per curiam order of this Court dated October 22, 2020. Employer does not challenge the
reinstatement of Claimant’s total disability benefits effective July 25, 2017, and Employer
acknowledges Claimant’s July 15, 2010 IRE predates Act 111. Employer rejects, however, the
conclusions of the WCJ and Board to the extent they may be construed as precluding Employer
(Footnote continued on next page…)
2
I. Background
The facts underlying this matter are undisputed. Claimant began receiving
total disability benefits following a December 21, 2006 work injury to her lower
back and right shoulder. Reproduced Record (R.R.) at 42a, 67a. On November 4,
2010, Employer filed a petition to modify Claimant’s disability status after a July
15, 2010 IRE assigned Claimant a whole-body impairment rating of 25%. Id. at 42a.
The WCJ granted Employer’s petition on March 8, 2011, and modified Claimant’s
disability status from total to partial disability, effective July 15, 2010. Id.; Certified
Record (C.R.), Item No. 27. Claimant did not appeal this decision.
After the Supreme Court held Section 306(a.2) of the Act unconstitutional in
Protz II, Claimant filed a petition seeking reinstatement of her total disability
benefits. R.R. at 10a. In a decision circulated on October 20, 2017, the WCJ granted
Claimant’s petition and reinstated her total disability status, as of July 15, 2010, the
date of Claimant’s IRE. Id. at 49a. Employer appealed to the Board, arguing that
Claimant was barred from seeking reinstatement of her total disability benefits
because she failed to appeal the initial modification of her disability status. Id. at
51a-53a.
While Employer’s appeal was pending before the Board, this Court decided
Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System
Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018), in which we held that a
claimant who had not challenged the initial modification of her disability status, but
from obtaining a new IRE under Act 111 and seeking a credit for partial disability payments made
to Claimant from July 15, 2010, through July 25, 2017.
The instant appeal concerns whether Claimant’s total disability benefits were properly
reinstated on July 25, 2017. Whether Employer is entitled to a credit for previously paid partial
disability based on a new IRE obtained under Act 111 is not an issue before this Court.
Accordingly, we will not address it herein.
3
then sought reinstatement of total disability benefits under Protz I and II, was entitled
to reinstatement as of the date she filed her reinstatement petition. Act 111 was
enacted shortly thereafter. In light of the Whitfield decision, and the enactment of
Act 111, the Board remanded the instant matter to the WCJ for additional fact-
finding and conclusions of law. R.R. at 58a-59a.
Claimant testified at a May 13, 2019 remand hearing that she continues to
suffer symptoms related to the December 21, 2006 work injury. Id. at 71a. She has
undergone three surgeries involving her lower back, with the most recent taking
place in December 2018. Id. Given the continued pain in her lower back and right
shoulder, Claimant did not feel capable of resuming her pre-injury job as a
phlebotomist. Id. at 68a, 74a.
In a decision circulated on August 26, 2019, the WCJ credited Claimant’s
testimony that she continued to be disabled by her work injury. Id. at 95a. As to the
date Claimant’s total disability benefits should be restored, the WCJ found that,
under Whitfield, Claimant was only entitled to reinstatement of her total disability
benefits as of the date she filed her reinstatement petition, July 25, 2017. Id. at 95a.
The WCJ found that Act 111 was not applicable to “the within matter,” as Claimant’s
work injury and the July 15, 2010 IRE pre-dated its enactment. Id. at 95a.4 Claimant
appealed to the Board, which affirmed. This appeal followed.5
4
The WCJ circulated an amended decision on September 6, 2019, in which he approved
Claimant’s counsel fee agreement as fair and reasonable under the Act. R.R. at 109a.
5
This Court's review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, constitutional rights were violated, or errors of law were
committed. Borough of Heidelberg v. Workers’ Comp. Appeal Bd. (Selva), 928 A.2d 1006, 1009
(Pa. 2006). Where the issue presented involves a question of law, our standard of review is de
novo and our scope of review is plenary. Id.
4
II. Discussion
Claimant argues that reinstatement of her total disability benefits should be
effective July 15, 2010, as the IRE upon which her benefit status was modified is
constitutionally invalid and “should be treated as though it never existed . . . .”
Claimant’s Br. at 11. Claimant argues that Whitfield is distinguishable from the
instant matter, as the claimant in Whitfield had exhausted her 500 weeks of partial
disability benefits at the time she sought reinstatement of her total disability benefits.
Claimant, to the contrary, was still within her 500-week period of partial disability
when the Supreme Court decided Protz II, and her claim must be construed as “still
pending” on that date. Id. at 14. Relying on Dana Holding Corporation v. Workers’
Compensation Appeal Board (Smuck), 232 A.3d 629 (Pa. 2020), Claimant asserts
that her disability status must be reinstated as of July 15, 2010.
At the outset, we reject Claimant’s argument that her claim was pending at
the time Protz II was decided, and her reliance on Dana Holding is misplaced. The
claimant in Dana Holding, David Smuck (Smuck), was in the midst of challenging
the modification of his disability status before a WCJ when this Court issued its
decision in Protz I, and his appeal of the WCJ’s decision was pending before the
Board when the Supreme Court decided Protz II. Dana Holding, 232 A.3d at 633.
This Court had held that Protz II applied retroactively to invalidate IREs for “cases,
such as this, where the underlying IRE was still being actively litigated when Protz
II was issued.”6 Id. Therefore, Smuck’s total disability benefits were appropriately
reinstated as of the date of the unconstitutional IRE. Id. The Supreme Court
affirmed and expressly limited the retroactive application of Protz II to “cases in
6
See Dana Holding Corp. v. Workers’ Comp. Appeal Bd. (Smuck), 195 A.3d 635, 643 (Pa.
Cmwlth. 2018), aff’d, 232 A.3d 629 (Pa. 2020).
5
which [Protz II] was raised during the course of ongoing litigation over an IRE
determination.” Id. at 636 (emphasis added).
Instantly, the record is clear that Claimant did not appeal the initial
modification of her disability status on July 15, 2010, and she was not actively
litigating this matter when the Supreme Court decided Protz II. Indeed, Claimant
first challenged her partial disability status on July 25, 2017, approximately two
months after Protz II. As Claimant did not raise the unconstitutionality of the July
15, 2010 IRE determination “during the course of ongoing litigation,” Dana Holding
is inapplicable and cannot form a basis for reinstating Claimant’s benefits as of July
15, 2010.
Claimant’s attempt at distinguishing Whitfield is likewise unavailing. In
Whitfield, the disability status of claimant Paulette Whitfield (Whitfield) was
modified following a June 13, 2006 IRE that assigned her a whole-body impairment
rating of 44%. Whitfield, 188 A.3d at 602. Accordingly, as her percentage of whole-
body impairment fell below the 50% threshold provided in former Section 306(a.2)
of the Act, a WCJ modified Whitfield’s disability status from total to partial. Id.
Whitfield received her last payment of partial disability compensation in mid-July
2015. Id. On November 13, 2015, Whitfield filed a petition seeking reinstatement
of total disability benefits under Protz I. Id. at 603. The WCJ denied Whitfield’s
petition on the grounds that Protz I did not expressly void all prior IREs or provide
that it applied retroactively. Id. Whitfield appealed to the Board, which affirmed.
Id.
On appeal to this Court, Whitfield argued for a retroactive application of Protz
I and II, as the IRE upon which her change in disability status was premised had
been declared unconstitutional and she had filed her reinstatement petition within
6
three years after the date of her most recent payment of compensation. Id. at 612.
Given the facts of the case, however, we declined to treat the issue raised as “purely
a question of retroactivity.” Id. at 616. We noted that a reinstatement of benefits is
governed by Section 413(a) of the Act,7 which relevantly permits reinstatement of a
claimant’s workers’ compensation benefits “upon proof that [her] disability has . . .
recurred,” provided that the reinstatement petition has been filed “within three years
after the date of the most recent payment of compensation.” Id. at 614. Critical to
our analysis was the meaning of “disability” under Section 413(a) of the Act. Id. at
612.
While recognizing that the term disability was generally synonymous with a
loss of earning power resulting from a work-related injury, we noted that it could
also relate to a claimant’s status. Id. Former Section 306(a.2) of the Act, for
example, provided a method whereby a claimant’s disability status could be
modified from total to partial without regard to any change in her earning power. Id.
Such was the situation for Whitfield, whose disability status was modified, not due
to any change in her earning power, but rather by means of an IRE. Id. The legal
effect of Protz I and II rendered Whitfield once again eligible for total disability
benefits. Id. at 614. In that regard, we likened Whitfield’s situation to that of a
claimant seeking reinstatement of benefits under suspension, a status which
acknowledges a continuing medical injury. Id. at 614-15.
Reinstatement of suspended benefits, however, requires a claimant
demonstrate that the reasons for suspension no longer exist. Id. at 615. Although
Whitfield testified before the WCJ that she was unable to work, and her employer
presented no evidence to the contrary, the WCJ made no findings with regard to
7
77 P.S. § 772.
7
Whitfield’s credibility and simply denied her reinstatement petition on the grounds
that Protz I did not apply. Id. at 616. Accordingly, we vacated the Board’s order
affirming the WCJ and remanded the matter for the purpose of determining whether
Whitfield’s disability continued. Id. at 617. If the WCJ credited her testimony,
Whitfield was entitled to reinstatement “as of the date she filed her [p]etition.” Id.
at 616. Our decision did not alter Whitfield’s past status; it merely “[gave] effect to
[her] status as it existed at the time she filed her reinstatement petition.” Id. at
617 (emphasis added).
We arrived at the same conclusion in White v. Workers’ Compensation Appeal
Board (City of Philadelphia), 237 A.3d 1225 (Pa. Cmwlth. 2020). In White, the
claimant’s disability status was modified from total to partial following a December
4, 2013 IRE which assigned her a whole-body impairment rating of 36%, resulting
in a modification of her disability status from total to partial, pursuant to former
Section 306(a.2) of the Act. Id. at 1226-27. The claimant did not appeal the
modification of her disability status. Id. at 1227. Prior to the expiration of her 500
weeks of partial disability, the claimant sought reinstatement of total disability
benefits, citing Protz I. Id. A WCJ granted the claimant’s petition but failed to make
any determination regarding the effective date of reinstatement. Id. The Board
affirmed the reinstatement of benefits but modified the WCJ’s decision to reflect that
reinstatement was effective the date the claimant filed her reinstatement petition. Id.
On appeal, we concluded that Whitfield, and not Dana Holding, controlled the date
of reinstatement, as the claimant had not appealed the initial modification of her
disability status and she was not in the process of litigating her reinstatement petition
when we decided Protz I. Id. at 1231.
8
In the instant matter, in resolving Claimant’s issue, we similarly seek to give
effect to Claimant’s status “as it existed at the time she filed her reinstatement
petition.” Id. Like Whitfield, Claimant’s disability status was modified without
regard to any change in her earning power pursuant to an IRE conducted under
former Section 306(a.2) of the Act. Claimant did not appeal the initial modification
of her disability status, and she was not actively litigating the July 15, 2010 IRE
when the Supreme Court rendered Section 306(a.2) wholly unconstitutional in Protz
II. Therefore, at the time Claimant filed her reinstatement petition, her disability
status was comparable to that of a claimant seeking reinstatement of suspended
benefits under Section 413(a) of the Act.
Based on the foregoing, we conclude that the WCJ correctly applied our
holding in Whitfield and reinstated Claimant’s total disability benefits as of July 25,
2017, the date she filed her reinstatement petition.8 Accordingly, we affirm the
Board.
__________________________________
ELLEN CEISLER, Judge
8
Recent unreported decisions of this Court have likewise concluded that the date a
claimant’s total disability benefits may be reinstated is controlled by his or her status as of the date
a reinstatement petition is filed. See Perillo v. Workers’ Comp. Appeal Bd. (Extended Healthcare
Servs., Inc. and State Workers’ Ins. Fund) (Pa. Cmwlth., No. 649 C.D. 2020, filed Mar. 3, 2021);
Burk v. Workers’ Comp. Appeal Bd. (Sch. Dist. of Phila.) (Pa. Cmwlth., No. 491 C.D. 2020, filed
Dec. 22, 2020). This Court may cite its unreported panel decisions for their persuasive value. See
Section 414 of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kathleen Vanston, :
Petitioner :
:
v. : No. 933 C.D. 2020
:
Marian Community Hospital, :
Indemnity Insurance Company :
of North America and ESIS, Inc. :
(Workers’ Compensation Appeal :
Board), :
Respondents :
Marian Community Hospital and :
Indemnity Insurance Company of :
North America, and ESIS, Inc., :
Petitioners :
:
v. : No. 947 C.D. 2020
:
Kathleen Vanston (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 12th day of May, 2021, the August 31, 2020 order of the
Workers’ Compensation Appeal Board is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge