IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jackikay Randall

, :

Petitioner :

:

v. :

: City of Philadelphia (Workers’ : Compensation Appeal Board)

, : No. 415 C.D. 20 22

Respondent : Submitted: Dec em ber 9

, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED : January 31, 2023

Jackikay Randall (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) dated March 30, 2022. Claimant
challenges the portion of the Board’s order that affirmed the order of a workers’
compensation judge (WCJ) grant ing Claimant’s r ei nstatement p etition and

reinstat ing her benefits to total disability status as of October 15, 2019

, the date of

the reinstatement petition

. Claimant asserts that t he Board should have reinstated

her total disability benefits retroactively to February 22, 2016, the date of the original

modification of her status from total to partial disability

. Claimant maintains that

she has a vested property right to benefits under the Pennsylvania Constitution,2

Article I, Section s 1, 2, and 11

. 1 As we have consistently done in numerous similar
cases, we affirm the Board’s order.

I. Background
The facts of this matter are not in dispute. Claimant sustained a work

related injury in September 2003 while employed as a police officer for the City of

1 Article I, Section 1 provides:

§ 1. Inherent rights of mankind.

All men are born equ ally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

Pa. Const. art. I, § 1.

Article I, Section 2 provides:

§ 2. Political powers.

All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.

Pa. Const. art. I, § 2.

Article I, Section 11 provides:

§ 11. Courts to be open; suits against the Commonwe alth.

All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commo nwealth in such manner, in such courts and in such cases as the Legislature may by law direct.

Pa. Const. art. I, § 11.3

Philadelphia (Employer). Bd. Dec . at 1. On February 22, 2016, she underwent an
impairment rating evaluation (IRE) at Employer’s behest in accord ance with former
Section 306(a.2) of the Workers’ Compensation Act (Act)

, 2 former 77 P.S. § 511.2

. 3
The IRE resulted in an impairment rating of less than 50%. Bd. Dec. at 1.
Accordingly, Employer filed a modification petition, which was granted by

agr eement of the parties, modifying Claimant’s disability status from total disability
to partial disability as of the IRE date. Id. Neither party appealed. Id.

In 2017, the Pennsylvania Supreme Court held that the IRE provision

of former Section 306(a.2) violated the Pennsylvania Constitution by impermissibly
delegating legislative authority to a private entity. Protz v. Workers’ Comp

. Appeal

Bd

. (Derry Area Sch

. Dist

. ) , 161 A.3d 827 (Pa. 2017)

. Concluding that the
delegation provision was not severable, the Court struck the entirety of Section
306(a.2) from the Act. Id.

In October 2019, Employer filed a termination petition averring that
Claimant fully recov ered from her work injury as of September 19, 2019. Bd. Dec.

at 1. Claimant denied the averments of the termination petition and filed a
reinstatement petition in October 2019 seeking reinstatement of her total disability
status as of February 22, 2016, the modification date based on the Pennsylvania
Supreme Court’s decision in Protz

. Id. at 2. In December 2020, Claimant also filed
a review petition seeking to expand the description of her work injury. Id.

In June 2021, a WCJ denied the termination pet ition and granted the
review petition. Bd. Dec. at 2. Of relevance here, t he WCJ also granted Claimant’s

r einstatement p etition based on Protz and reinstated her total disability status as of

2 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §§1

- 1041.4

, 2501

- 2710.

3 Added by Section 4 of the Act of June 24, 1996, P.L. 350, formerly 77 P.S. § 511.2.4

October 15, 2019, the date she filed the r einstatement p etition. Id. Both Claimant

and Employer appeal ed to the Board, which affirmed the WCJ’s decision in all

respects. Id. at 15.

Claimant then filed a petition for review in this Court, challenging onl y the effective date of the reinstatement of her total disability status.

II. Issue
Before this Court, 4 Claimant argues that she had a vested right to
workers’ compensation total disability benefits. She posits that because our
Supreme Court invalidated Section 306(a.2) and struck it from the Act, that
provision was void ab initio . As a result, Claimant maintains that Protz requires
reinstatement of her total disability status as of the February 2016 modification date,

not the October 2019 reinstatement petition date.

III. Discussion
The IRE provision contained in former Section 306(a.2) of the Act, 77
P.S. § 511.2, required physicians to conduct IREs according to “ the most recent

edition ” of the American Medical Association ’ s Guides to the Evaluation of
Permanent Impairment (AMA Guides) . In Protz , our Supreme Court held that
former Section 306(a.2) unconstitutionally delegated legislative authority to a
private party, in that the legislat ure did not retain authority or input concerning the
standards that might be contained in any future edition of the AMA Guides. 161

4 This Court’s review of a workers’ compensation decision is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an err or of law was committed, or whether constitutional rights were violated. Pocono Mt. Sch. Dist. v. Kojeszewski (Workers’ Comp. Appeal Bd.) , 280 A.3d 12, 16 n.4 (Pa. Cmwlth. 2022).5

A.3d at 837

- 38 . Concluding that the “most recent edition” language could not be
severed from the rest of Section 306(a.2), our Supreme Court held that the entirety
of Section 306(a.2) was unconstitutional and struck it from the Act. 5 Id. at 840

- 41

.

Before this Court, Claimant asserts that the invalidation of former
Section 306(a.2) in Protz entitled her to reinstatement of her total disability status as

of the February 2016 modification date rather than the October 2019 reinstatement
petition date. We disagree.

In Whitfield v. Workers’ Compensation Appeal Board (Tenet Health
Sys tem Hahnemann LLC) , 188 A.3d 599 (Pa. Cmwlth. 2018) ( en banc ) , this Court
held that where a claimant receiving partial disability benefits has filed a
reinstatement petition based on Protz , the reinstatement of total disability status shall

be effective as of the date of the reinstatement petition, not the modification date

. I n
post

- Whitfield cases , we have repeatedly rejected the very argument Claimant asserts
here, i.e. , that a claimant seeking reinstatement of total disability benefits pursuant

to Protz is entitled to retroactive reinst atement back to the original modification/IRE
date on the basis that former Section 306(a.2) was void ab initio

. See, e.g.

, DiPaolo
v. UPMC Magee Women ’ s Hosp. (Workers ’ Comp. Appeal Bd.) , 278 A.3d 430, 438
(Pa. Cmwlth. 2022) (rejecting the c laimant’s ass ertions when our Supreme Court
struck former Section 306(a.2) in Protz , that provision was void ab initio and
claimant who underwent an IRE prior to Protz was automatically restored to pre

IRE status; stating that “our courts have never held that to be the case, and several

5 In response to Protz , the legislature enacted the Act of October 24, 2018, P.L. 714, No. 111 (Act 111). Act 111 repealed section 306(a.2) and replaced it with section 306(a.3) of the Act, 77 P.S. § 511.3. Under S ection 306(a.3), an IRE must be conducted in accordance with the Sixth Edition of the AMA Guides , published in 2007, and a claimant ’ s whole body impairment must be less than 35% in order for the claimant to be moved from total to partial disability status. 77 P.S. § 511.3.6

decisions have placed temporal limits on the application of Protz . . . ”); Pullin v.
Sch. Dist. of Phila. (Workers ’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 727 C.D. 2021,
filed Feb. 25, 2022)

, 6 slip op. at 4

- 5 n.5

, appeal denied , 280 A.3d 866 (Pa. 2022)
(declining to accord “ full retroactivity ” to Protz by holding that the IRE process
under former Section 306(a.2) was void ab initio ) (citing, inter alia

, Weidenhammer
v. Workers’ Comp. Appeal Bd. (Albright Coll. ), 232 A.3d 986, 989

- 95 (Pa. Cmwlth.),
appeal denied , 242 A.3d 912 (Pa. 2020) ); White v. Workers’ Comp. Appeal Bd. (City
of Phila. ) , 237 A.3d 1225 , 1231 (Pa. Cmwlth. 2020) ( en banc ) (reaffirming Whitfield
and holding that reinstatement of total disability benefits was effective only “ as of
the date of [the] reinstatement petition, not the effective date of the change in [the
claimant’s] disability status from total to partial ”)

. We likewise reject Claimant’s
argument here.

We also reject Claimant’s vested right argument. I n Dana Holding
Corp. v. Workers’ Compensation Appeal Board (Smuck) , 232 A.3d 629 (Pa. 2020),
our Supreme Court applied Protz to grant a modification from partial to total
disability as of the previous IRE date, but only because the claima nt was already
litigating a constitutional challenge to former Section 306(a.2) at the time Protz was decided. Our Supreme Court in Dana Holding agreed with this Court’s conclusion
“that a disability modification is not vested when it remains subject to a preserved
challenge pursued by a presently aggrieved claimant.” Id. at 649. Accordingly, the

Court concluded “the general rule in Pennsylvania will be that . . . a holding of this
Court that a statute is unconstitutional will generally be applied [retro actively only
as] to cases pending on direct appeal in which the constitutional challenge has been

6 Pursuant to Section 414(a) of our Internal Operating Procedures, unreported opinions of this Co urt issued after January 15, 2008 may be cited as persuasive. 210 Pa. Code § 69.414(a).7

raised and preserved.” Id. at 693; see also White , 237 A.3d at 1231 (distinguishing
Dana Holding from Whitfield ). Here, Claimant had no such constitutional challenge
pending when Protz was decided. Thus, the February 2016 modification was not
“subject to a preserved challenge pursued by a presently aggrieved claimant” on the

date of the Protz decision. Dana Hold ing

, 232 A.3d at 649. Accordingly, Claimant
was not entitled to benefit from a retroactive application of Protz beyond the date of
her reinstatement petition.

In addition, a s Employer aptly observes, Claimant’s arguments here

were also asserted before thi s Court by the same counsel and were rejected in Yeager

v. City of Ph iladelphia ( Workers’ Compensation Appeal Board ) (Pa. Cmwlth., No.

709 C.D. 2021

, filed Aug

. 4 , 2022). This Court summarized its analysis and
conclusion regarding those arguments as follows:

Claimant’s benefits were modified by stipulation by a WCJ’s decision

. . . , based on the IRE

. . . . Neither party appealed the modification. Claimant filed for reinstatement

. . . after Protz [] was decided. Therefore, we are boun d to follow Whitfield and its progeny, and we hold that Claimant’s reinstatement was properly granted as of the date that Claimant filed for reinstatement

. . . . Further, because Claimant’s IRE was not in active litigation when Protz [] was decided, Dana Holding does not apply to alter the effective date of Claimant’s reinstatement.

Id. , slip op. at 9. That analysis applie s equally here.

On August 29, 2022, the claimant in Yeager filed a petition for
allowance of appeal in our Supreme Court, but the Cour t has not yet ruled on whether
to grant allocatur in that case. Unless and until our Supreme Court reverses our

decision in Yeager , we find our reasoning in that case persuasive , and we follow it

here

. See Pa. State Troopers Ass’n v. Commonwealth , 603 A.2d 253, 256 ( Pa.8

Cmwlth. 1992) (adhering to the reasoning of a prior similar decision despite a

p ending appeal of the prior decision to the Pennsylvania Supreme Court).

IV. Conclusion
Based on the foregoing discussion, we affirm the Board’s order.

__________________________________ CHRISTINE FIZZANO CANNON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jackikay Randall, :

Petitioner :

:

v. :

: City of Philadelphia (Workers’ : Compensation Appeal Board), : No. 415 C.D. 2022

Respondent :

O R D E R

AND NOW, this 31 st day of January , 20 2 3 , the order of the Workers’
Compensation Appeal Board, dated March 30, 2022, is AFFIRMED.

__________________________________ CHRISTINE FIZZANO CANNON, Judge