Dunetz v. Charles H. Sacks D.M.D., P.C.

304 A.3d 134

Howard DUNETZ, Petitioner v. CHARLES H. SACKS D.M.D., P.C. (Workers’ Compensation Appeal Board), Respondent

No. 302 C.D. 2022

Commonwealth Court of Pennsylvania.

Argued March 8, 2023

Decided October 26, 2023

Daniel J. Siegel, Havertown, for Petitioner.

Kevin L. Connors, Exton, for Respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE LORI A. DUMAS, Judge, HONORABLE STACY WALLACE, Judge

OPINION BY PRESIDENT JUDGE COHN JUBELIRER

Howard Dunetz (Claimant) petitions for review of the Order of the Workers’ Compensation Appeal Board (Board) affirming the decision of a Workers’ Compensation Judge (WCJ) that granted Claimant's Reinstatement Petition in part and granted the Modification Petition of Charles H. Sacks, D.M.D., P.C. (Employer). The WCJ reinstated Claimant's workers’ compensation (WC) benefits from partial disability to total disability from June 12, 2020, the date of Claimant's Reinstatement Petition, until December 15, 2020, the date Employer obtained an Impairment Rating Evaluation (IRE) of Claimant reflecting a 17% whole-body impairment. The WCJ also modified Claimant's benefits from total disability to partial disability as of the date of the IRE, granted Employer a credit for payments of partial disability benefits it had paid Claimant prior to December 15, 2020, and found that Claimant was no longer entitled to wage loss benefits after December 15, 2020, because he had already received the 500 weeks of partial disability benefits permitted by the Workers’ Compensation Act (Act). ¹

Claimant argues the Board erred in affirming the WCJ's decision to reinstate total disability benefits as of June 12, 2020, rather than as of December 2, 2010, the date his benefits were originally modified based on the results of a prior IRE. Claimant contends that in Dana Holding Corporation v. Workers’ Compensation Appeal Board (Smuck) , 659 Pa. 461, 232 A.3d 629 (2020), our Supreme Court indicated that Protz v. Workers’ Compensation Appeal Board (Derry Area School District) , 639 Pa. 645, 161 A.3d 827 (2017) ( Protz ) (finding the IRE process under former Section 306(a.2) of the Act ² unconstitutional and striking that provision from the Act), could be given fully retroactive effect in extraordinary circumstances and approved the use of an equitable balancing test. Claimant asserts that his case is such an extraordinary circumstance that warrants application of the equitable balancing test and that Protz should be fully retroactive as to him. Claimant also asserts that the Court should reconsider its prior decisions holding that (1) Protz would have full retroactive effect only for claimants who had cases pending on appeal at the time Protz was decided; and (2) Section 306(a.3) of the Act, which was added by Act 111, ³ wherein the General Assembly reestablished the IRE process following Protz and authorized employers to receive credit for partial disability benefits paid under the prior IRE system, could be applied retroactively. Employer replies that it satisfied all of the requirements for obtaining the granted relief, and, therefore, such relief was properly granted. According to Employer, Claimant's arguments have been considered, and rejected, by this Court on multiple occasions and there is no reason for the Court to depart from its existing precedent.

I. BACKGROUND

The relevant facts are not disputed. In May 2007, Claimant sustained a work-related injury to his cervical spine, for which he received total disability benefits. (WCJ Decision, Finding of Fact (FOF) ¶ 3. ⁴ ) Employer, via a Notice of Change of WC Disability Status (Notice of Change) dated January 26, 2011, changed the status of Claimant's benefits from total to partial disability ⁵ as of December 2, 2010, the date of the IRE that found Claimant had an eight percent whole-person impairment rating (2010 Modification). (FOF ¶¶ 3-4, 11.) Claimant did not contest the Notice of Change or otherwise challenge the 2010 Modification.

On June 12, 2020, Claimant filed the Reinstatement Petition, alleging that the 2010 Modification was unconstitutional following Protz and requesting reinstatement to total disability as of the date of the original IRE modification. ( Id. ¶¶ 1, 4.) The parties stipulated that Employer paid Claimant 500 weeks of partial disability benefits through July 2, 2020, at which time Employer stopped paying indemnity benefits. ( Id. ¶ 4.) Employer filed its Modification Petition on January 22, 2021, seeking the modification of Claimant's benefits from total to partial based on the December 15, 2020 IRE resulting in a 17% whole-body impairment rating, of which it presented evidence at a hearing before the WCJ. ( Id. ¶¶ 2, 13-14.)

The WCJ found:

Claimant is entitled to a reinstatement of benefits from partial disability to total disability effective June 12, 2020, the date Claimant filed his Reinstatement Petition. Claimant is entitled to temporary total disability benefits for the period of June 12, 2020[,] to December 15, 2020, the date of the IRE .... [Employer] is entitled to a credit for the weeks of partial disability benefits paid to Claimant. As of December 15, 2020, Claimant had received 500 weeks of partial disability benefits, and therefore his benefits are exhausted as of December 15, 2020.

(FOF ¶ 21.) Accordingly, the WCJ granted Claimant's Reinstatement Petition in part and granted Employer's Modification Petition in its entirety. ⁶ (WCJ Decision, Order.)

Claimant appealed to the Board. Relevantly, Claimant asserted the WCJ misapplied Protz and should have "perform[ed] the equitable balancing contemplated in Dana Holding " to reinstate Claimant's benefits to total as of the date of the initial IRE. (Claimant's Appeal to the Board (Appeal) at 3-4, Reproduced Record (R.R.) at 28a-29a.) Claimant also argued that retroactively applying Act 111 to allow Employer a credit for partial benefits previously paid pursuant to an unconstitutional and void IRE is, itself, unconstitutional because it interferes with Claimant's vested rights and violates his due process rights. ( Id. )

The Board affirmed. In doing so, it cited various decisions of our Supreme Court and this Court, which the Board viewed as supporting the WCJ's decision to reinstate Claimant's total disability status as of the date of the Reinstatement Petition, not the initial modification. (Board Opinion (Op.) at 4-6 (citing Dana Holding Corp. , 232 A.3d at 649 ; White v. Workers’ Comp. Appeal Bd. (City of Philadelphia) , 237 A.3d 1225 (Pa. Cmwlth. 2020) ( en banc ), appeal denied , 244 A.3d 1230 (Pa. 2021) ; Weidenhammer v. Workers’ Comp. Appeal Bd. (Albright Coll.) , 232 A.3d 986 (Pa. Cmwlth.), appeal denied , 663 Pa. 426, 242 A.3d 912 (Pa. 2020) ; Whitfield v. Workers’ Comp. Appeal Bd. (Tenet Health Sys. Hahnemann LLC) , 188 A.3d 599 (Pa. Cmwlth. 2018) ( en banc )).) As to Claimant's challenges to Act 111's constitutionality, the Board noted it lacked jurisdiction to decide the constitutional issues raised but observed this Court had addressed such challenges to Act 111 and found them to be without merit. (Board Op. at 7-10 (citing Hutchinson v. Annville Township (Workers’ Comp. Appeal Bd.) , 260 A.3d 360 (Pa. Cmwlth. 2021), petition for allowance of appeal denied , 279 A.3d 1180 (Pa. 2022) ; Pierson v. Workers’ Compensation Appeal Board (Consol Pennsylvania Coal Company, LLC) , 252 A.3d 1169 (Pa. Cmwlth.), appeal denied , 261 A.3d 378 (Pa. 2021) ; Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada) , 238 A.3d 551 (Pa. Cmwlth. 2020) ( en banc ); Pa. AFL-CIO v. Commonwealth , 219 A.3d 306 (Pa. Cmwlth. 2019), aff'd (Pa., No. 88 MAP 2019, filed Aug. 18, 2020)).) Claimant now petitions this Court for review. ⁷

II. DISCUSSION

A. Whether the Board erred in affirming the reinstatement of Claimant's total disability benefits as of the Date of the Reinstatement Petition, not the 2010 Modification.

Claimant's arguments regarding the retroactive application of Protz are two-fold: he seeks relief on behalf of all claimants, asserting that our prior cases that do not give Protz full retroactivity should be reconsidered; and he seeks relief on behalf of himself, alone, citing an equitable exception to the general rule against retroactivity in extraordinary circumstances that he asserts the Supreme Court recognized in Dana Holding . With respect to Claimant's first argument, which reiterates the same positions that have been repeatedly considered and rejected by this Court, we are not persuaded to deviate from this precedent, particularly where multiple petitions for allowance of appeal on this issue have been filed with, and denied by, our Supreme Court. See, e.g. , Hutchinson , 260 A.3d at 364-65 ; White , 237 A.3d at 1231 ; Weidenhammer , 232 A.3d at 992-95 ; Whitfield , 188 A.3d at 615-17. ⁸ In contrast, Claimant's second argument raises a novel ground for relief not previously asserted by a party or addressed by this Court under circumstances such as this. ⁹

Claimant argues that in Dana Holding , our Supreme Court sanctioned an "equitable balancing" test be used in "extraordinary cases" that would allow for Protz to be retroactively applied even in cases where no direct appeal was pending at the time the Supreme Court's opinion in Protz was filed. (Claimant's Br. at 13-14.) According to Claimant, his is one such extraordinary case "because it involves a seriously[ ]injured worker whose receipt of [WC] benefits separates him from poverty" and he "still remain[s] disabled more than 500 weeks after [his] injuries." ( Id. at 19, 21.) Claimant maintains that when the equitable balancing test is performed, his interests outweigh those of Employer's and full retroactivity of Protz is warranted – meaning that his total disability benefits should be reinstated from December 2, 2010, the date of the...