Dana Holding Corp. v. Workers' Comp. Appeal Bd.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dana Holding Corporation, :

Petitioner :

:

v. : No. 1869 C.D. 2017

: Argued: September 13, 2018

Workers’ Compensation Appeal :

Board (Smuck), :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY

JUDGE COHN JUBELIRER FILED: October 11, 2018

Dana Holding Corporation (Employer) petitions for review of an Order of the

Workers’ Compensation Appeal Board (Board), which reversed a decision by a

Workers’ Compensation Judge (WCJ) and reinstated David Smuck (Claimant) to

total disability status as of June 20, 2014, the date of his impairment rating evaluation

(IRE). The WCJ had granted Employer’s Modification Petition, modifying

Claimant’s disability status from total to partial disability based upon an IRE

performed using the Fourth Edition of the American Medical Association’s (AMA)

Guides to the Evaluation of Permanent Impairment (Guides), which was, at the time

of the WCJ’s decision, still a valid means of modifying a claimant’s status under this

Court’s decision in Protz v. Workers’ Compensation Appeal Board (Derry Area

School District), 124 A.3d 406, 417 (Pa. Cmwlth. 2015) (Protz I). However, the

Pennsylvania Supreme Court subsequently declared the entirety of Section 306(a.2)

of the Workers’ Compensation Act1 (WC Act), which governed IREs,

unconstitutional. Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 161

A.3d 827, 840-41 (Pa. 2017) (Protz II). At issue in this appeal is whether Claimant

is entitled to the benefit of Protz II. Because Claimant’s appeal was pending before

the Board at the time of that decision, we conclude the Board properly applied the

law in effect at the time of its appellate review and, accordingly, affirm.

The pertinent facts are not in dispute. Claimant suffered a work injury

described as an “upper back, disc protrusion @ T11-12” on April 6, 2000. (WCJ

Decision, Finding of Fact (FOF) ¶ 1.) Employer issued a Notice of Temporary

Compensation Payable, acknowledging the injury, which subsequently converted

into a Notice of Compensation Payable.

On June 20, 2014, Claimant underwent an IRE that was performed by Lucian

P. Bednarz, M.D., who was appointed by the Bureau of Workers’ Compensation at

Employer’s request. Dr. Bednarz opined that Claimant had a whole body

impairment rating2 of 11 percent under the Sixth Edition of the Guides.3 Based upon

this IRE, Employer filed its Modification Petition seeking to modify Claimant’s

1

Act of June 2, 1915, P.L. 736, as amended, added by Section 4 of the Act of June 24,

1996, P.L. 350, 77 P.S. § 511.2, invalidated by Protz v. Workers’ Comp. Appeal Bd. (Derry Area

Sch. Dist.), 161 A.3d 827, 840-41 (Pa. 2017) (Protz II).

2

“[I]mpairment rating” was defined as “the percentage of permanent impairment of the

whole body resulting from the compensable injury.” Section 306(a.2)(8)(ii) of the WC Act, 77

P.S. § 511.2(8)(ii), invalidated by Protz II. “[I]mpairment” was defined as “an anatomic or

functional abnormality or loss that results from the compensable injury and is reasonably presumed

to be permanent.” Section 306(a.2)(8)(i), 77 P.S. § 511.2(8)(i), invalidated by Protz II.

3

Under Section 306(a.2)(2), a claimant with an impairment rating equal to or greater than

50 percent was presumed to be totally disabled, whereas a claimant with an impairment rating less

than 50 percent was considered partially disabled. 77 P.S. § 511.2(2), invalidated by Protz II.

2

disability status from total to partial as of the date of the IRE. Claimant challenged

the modification, alleging he had not reached maximum medical improvement, a

prerequisite to an IRE.

Various hearings were held before the WCJ. After the record closed, but

before the WCJ issued his decision, this Court issued its decision in Protz I, wherein

we declared that certain IRE provisions found in Section 306(a.2) of the WC Act

were unconstitutional. Protz I, 124 A.3d at 417. Specifically, we declared the

portions of Section 306(a.2) that provided that a claimant’s impairment rating should

be determined “pursuant to the most recent edition of the [AMA Guides]” were an

unconstitutional delegation of legislative authority violative of Article II, Section 1

of the Pennsylvania Constitution.4 We reasoned that “the General Assembly . . .

failed to prescribe any intelligible standards to guide the AMA’s determination

regarding the methodology used in granting impairments.” Id. at 415. We further

explained that “Section 306(a.2) of the [WC] Act is wholly devoid of any

articulations of public policy governing the AMA in this regard and of adequate

standards to guide and restrain the AMA’s exercise of this delegated determination

by which physicians and WCJs are bound” and is devoid of any “mechanism

requiring governmental review of the Guides by the promulgation of regulations.”

Id. Having concluded that Section 306(a.2) was an unconstitutional delegation of

legislative power because “it proactively approved versions of the AMA Guides

beyond the Fourth Edition without review,” we vacated the Board’s decision and

remanded the matter to the Board with instruction to remand to the WCJ for an IRE

4

Article II, Section 1 of the Pennsylvania Constitution provides: “The legislative power

of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and

a House of Representatives.” Pa. Const. art. II, § 1.

3

determination applying the Fourth Edition of the Guides, which was in effect at

the time Section 306(a.2) was enacted. Id. at 416.

Because, in Protz I, we permitted IREs to be performed using the Fourth

Edition of the Guides, Employer here sought to reopen the record before the WCJ

and introduce a new IRE using that edition. Claimant objected to reopening the

record and instead requested the WCJ to dismiss Employer’s Modification Petition

based upon Protz I because the IRE used the Sixth Edition of the Guides. Instead,

the WCJ allowed the new IRE. Based upon his prior examination on June 20, 2014,

Dr. Bednarz found Claimant had a whole person impairment of 15 percent using the

Fourth Edition of the Guides.

The WCJ found that the IRE performed using the Sixth Edition of the Guides

was invalid as a result of this Court’s decision in Protz I. (WCJ Decision at 8.)

However, based upon the results of the second IRE using the Fourth Edition of the

Guides, the WCJ granted Employer’s Modification Petition and modified

Claimant’s disability status from temporary total disability to partial disability,

effective June 20, 2014. (WCJ Order.)

Claimant and Employer appealed to the Board. Claimant argued Dr. Bednarz

was not qualified to perform an IRE under the Fourth Edition of the Guides and that

the WCJ’s conclusion that Employer met its burden of proof was in error.

Meanwhile, Employer cross-appealed, arguing the WCJ erred in concluding Protz I

rendered the first IRE using the Sixth Edition of the Guides invalid.5 Employer

explained that it filed the cross-appeal because Protz I was appealed to the

Pennsylvania Supreme Court and it wanted:

5

Employer also argued the WCJ erred in awarding litigation costs to Claimant. The Board

ultimately affirmed that portion of the WCJ’s Decision. Employer has not further appealed from

that determination.

4

to preserve the issue concerning the validity of the finding that

[C]laimant had a whole body impairment of less than 50% under the

6th Edition of the AMA Guides in the event that the Supreme Court

reverses Protz and concludes that the evaluation under the “most recent

edition” of the Guides at the time of the evaluation is constitutional and

the determination under the 4th Edition of the Guides is rendered moot.

(Employer’s Appeal, Record (R.) Item 9.) Employer requested the Board stay the

matter until the Supreme Court decided the appeal of Protz I, which the Board did.

While the appeal was pending before the Board, the Pennsylvania Supreme

Court declared Section 306(a.2) of the WC Act unconstitutional in its entirety.

Protz II, 161 A.3d at 840-41. The Supreme Court agreed with this Court’s holding

in Protz I that Section 306(a.2) of the WC Act was an unconstitutional delegation of

legislative authority. Protz II, 161 A.3d at 838. However, the Supreme Court

disagreed that the offending language was severable from the rest of Section

306(a.2) and struck Section 306(a.2) in its entirety. Id. at 841. As a result, this

Court’s holding in Protz I that use of the Fourth Edition of the Guides was

permissible was overturned.

After Protz II was decided, the Board considered this appeal, which had been

stayed. The Board concluded Protz II required reversal of the WCJ Decision

because the WCJ had relied upon the now-unconstitutional provisions of Section

306(a.2), including the use of the Fourth Edition of the Guides. It, therefore,

reversed the grant of the Modification Petition and reinstated Claimant to total

disability status as of June 20, 2014, the date of the disputed IRE. (Board Opinion

at 3.)

5

Employer now seeks review of the Board’s Order.6 Employer claims the

Board erred in retroactively applying Protz II to the instant action. Employer argues

that the Supreme Court gave no directive in Protz II as to its retroactive effect and

that the factors to be considered in applying a new rule of law retroactively weigh

against retroactivity. Employer particularly stresses the prejudice it claims it will

suffer if Protz II is held to invalidate past IREs, which have been relied upon by

Employer, as well as all other employers and insurers. As a result, Employer seeks

prospective application of Protz II or, in the alternative, application of Protz II only

as of the date of that decision and in cases where the issue has been properly raised

and preserved. In addition, Employer asserts retroactive application of Protz II

violates its constitutional right to the “due course of law” under the Remedies Clause

of Article I, Section 11 of the Pennsylvania Constitution. Finally, Employer argues

Claimant waived his ability to challenge the constitutionality of the IRE by not

raising it before either the WCJ or the Board.

Claimant responds that he did, in fact, raise the applicability of the Protz

decisions throughout the litigation. Regardless, Claimant argues that a party can

challenge the validity of a statute for the first time on appeal, citing Section 703(a)

of the Administrative Agency Law, 2 Pa. C.S. § 703(a).7 Claimant asserts he is not

seeking full retroactive effect of Protz II; rather, he is merely asking this Court to

apply the general rule that the law in effect at the time of appellate review applies.

Claimant claims that Employer would not be prejudiced by such an application.

6

Our “standard of review is limited to determining whether constitutional rights were

violated, whether an error of law was committed, or whether necessary findings of fact are

supported by substantial evidence.” Thompson v. Workers’ Comp. Appeal Bd. (Exelon Corp.),

168 A.3d 408, 412 n.3 (Pa. Cmwlth. 2017).

7

Section 703(a) provides, in pertinent part: “A party who proceeded before a

Commonwealth agency under the terms of a particular statute shall not be precluded from

questioning the validity of the statute in the appeal.” 2 Pa. C.S. § 703(a).

6

Claimant further argues this case is analogous to Thompson v. Workers’

Compensation Appeal Board (Exelon Corporation), 168 A.3d 408 (Pa. Cmwlth.

2017), in which, based upon Protz II, we reversed the Board’s affirmance of a WCJ’s

decision modifying a claimant’s disability status from total to partial based on an

IRE, even though it had not been raised before the WCJ or Board.

We begin with the threshold issue in this matter: whether the Supreme Court’s

decision in Protz II applies to appeals that were pending at the time it was decided.

There are four approaches in deciding what effect a decision announcing a new rule

of law should be given: (1) purely prospective, meaning the new rule does not even

apply to the parties in the case in which it was announced; (2) retroactive, but limited

to the case where the principle was announced; (3) retroactive to all cases pending

at the time it was announced; and (4) full retroactive effect, which applies even to

cases which are otherwise final. Blackwell v. State Ethics Comm’n, 589 A.2d 1094,

1098-99 (Pa. 1991). Employer argues for prospective application. Claimant, on the

other hand, argues not for fully retroactive effect, but instead for retroactive

application to all cases pending at the time Protz II was decided.

As a general rule, the Pennsylvania Supreme Court has held that an appellate

court should “apply the law in effect at the time of appellate review.” Passarello v.

Grumbine, 87 A.3d 285, 307 (Pa. 2014); Blackwell, 589 A.2d at 1099. In other

words, “a party whose case is pending on direct appeal is entitled to the benefit of

changes in law which occur[] before the judgment becomes final.” Blackwell, 589

A.2d at 1099 (quotation omitted). However, the Supreme Court has cautioned

against applying this general rule “rotely.” Passarello, 87 A.3d at 307. Rather,

“[w]hether a judicial decision should apply retroactively is a matter of judicial

discretion to be decided on a case-by-case basis.” Id.

7

In considering whether a decision announcing a new rule of law is to be

applied retroactively, the court should consider: “(1) the purpose to be served by the

new rule, (2) the extent of the reliance on the old rule, and (3) the effect on the

administration of justice by the retroactive application of the new rule.” Blackwell,

589 A.2d at 1099 (citation omitted). The parties agree that the purpose of Protz II

“is to mandate conformity with the Pennsylvania Constitution.” (Employer’s Brief

(Br.) at 27; Claimant’s Br. at 5.)

With regard to the second factor, Employer makes a broad argument that both

“[e]mployers and insurers have litigated or managed hundreds of thousands of

claims in reliance on the now-stricken statutory language” and “[m]any of these

claims went unchallenged, were considered final and have been closed.”

(Employer’s Br. at 27.) According to Employer, it has now lost the opportunity to

pursue other routes of changing Claimant’s disability status, such as offering him

another position or having a labor market study conducted, because of changes in

economic conditions and the passage of time, which has naturally aged Claimant.

At oral argument, Employer analogized retroactive application of Protz II to

changing the rules of play in the middle of the game, which Employer asserted was

fundamentally unfair.

We are cognizant of Employer’s concerns, but find its argument, under the

facts of this case, unpersuasive.8 Here, the determination of Claimant’s disability

status was far from final. It was still being actively litigated when the Protz decisions

were handed down. Claimant underwent his IRE in June 2014. While Employer’s

Modification Petition based on the Sixth Edition of the Guides was pending before

8

Employer appears to urge for a broad, sweeping declaration by this Court. We, however,

limit our holding to the facts presently before us – cases where the validity of the underlying IRE

were still being litigated at the time Protz II was decided.

8

the WCJ, this Court issued its decision in Protz I. As a result, Employer sought

permission from the WCJ to reopen the record and introduce a new IRE using the

Fourth Edition of the Guides, which, at the time, complied with our holding in Protz

I. Claimant objected to this request and asked the WCJ to dismiss Employer’s

Modification Petition based upon Protz I because the IRE used the Sixth Edition of

the Guides, but the WCJ allowed the new IRE. Based upon the results of that second

IRE, the WCJ modified Claimant’s disability status. Claimant and Employer both

appealed that decision, albeit for different reasons. Importantly, while that appeal

was pending, the Pennsylvania Supreme Court affirmed our decision that Section

306(a.2) of the WC Act was an unconstitutional delegation of legislative authority,

but overruled that decision to the extent we held that IREs performed under the

Fourth Edition of the Guides, which was the most recent edition in effect at the time

Section 306(a.2) was enacted, were still valid. The Supreme Court, instead, struck

the entirety of Section 306(a.2) from the WC Act. Because Employer’s Modification

Petition was still being actively challenged at the time Protz II was decided, we are

hard pressed to find Employer had any reasonable expectation in the finality of the

modification of Claimant’s disability status.

An en banc panel of this Court recently rejected a similar argument that the

employer had an expectation of finality in a case with much stronger facts favoring

finality than those present here. In Whitfield v. Workers’ Compensation Appeal

Board (Tenet Health System Hahnemann LLC), 188 A.3d 599, 616 (Pa. Cmwlth.

2018), we held that claimants could seek reinstatement of total disability status based

on Protz II within 3 years of the date of the most recent payment of compensation,

even if they had already exhausted their 500 weeks of partial disability benefits. This

9

was because the modifications of disability status were “not yet truly ‘final’ until

three years ha[d] passed since the date of last payment.” Id. at 617.

Furthermore, Employer had other avenues available to it to modify Claimant’s

status but chose to utilize the IRE route because it was less expensive and more

efficient. Accordingly, it took a risk to pursue an IRE instead of some other

mechanism. To the extent it is now foreclosed from pursuing other options, the fault

does not lay with Claimant. It bears emphasis that the WC Act “is remedial in nature

and intended to benefit the [injured] worker.” Reifsnyder v. Workers’ Comp. Appeal

Bd. (Dana Corp.), 883 A.2d 537, 541 (Pa. 2005).

For these reasons, the second factor weighs in favor of applying Protz II to

cases that were pending at the time Protz II was decided, such as the one presented

here.

Concerning the third factor, the effect on the administration of justice by the

retroactive application of the new rule, Employer again argues against full

retroactive effect. It claims “if the Court was to impose full retroactivity of the Protz

II holding, the outcome would culminate in an overwhelming burden on the judicial

system,” including WCJs, the Board, and this Court. (Employer’s Br. at 28.)

Employer argues that resurrecting IREs reaching back to enactment of Section

306(a.2) in 1996 would “severely impact[]” the administration of justice, and the

best way to avert this result is through prospective application of Protz II. (Id.) We

appreciate that there have been many IREs since the procedure was codified in 1996.

We note that Claimant’s IRE in this case, however, did not occur two decades ago

but took place in June 2014 and was in active litigation at the time Protz I and

Protz II were decided. Thus, there had been no final adjudication here as to

10

whether Claimant’s disability status should be modified from total to partial.9 We

examine each case before us, and in this case, the issue of the IRE process was

pending before the Board when Protz II was decided.

For similar reasons, we reject Employer’s argument that we should apply

Protz II only from its decision date and not the date of the IRE. Employer argues

that it had a vested right and should, at a minimum, receive a credit for three years

of temporary disability from the date of the IRE on June 20, 2014, to the decision in

Protz II on June 20, 2017. These weeks, according to Employer, should be counted

towards Claimant’s limit of 500 weeks of partial disability compensation. Section

306(b)(1) of the WC Act, 77 P.S. § 512(1). Should Employer seek to use some other

statutory mechanism to change Claimant’s status to partial, Employer argues it

should be entitled to a credit for those weeks between the IRE and Protz II.

However, this approach does not take into consideration that the IRE determination

was never final. In fact, at oral argument, Employer recognized that if the IRE had

been overturned on the merits, it would not have been entitled to any credit for the

period of partial disability. Accordingly, the time period between the date of the

IRE and the decision in Protz II should not be counted against Claimant’s 500-week

period of partial disability.

Having concluded that Protz II applies to cases where the underlying IRE was

actively being litigated when that decision was issued, we turn to Employer’s second

argument: it is entitled to the due course of law,10 which would be violated if Protz II

9

We reiterate that our holding is limited to cases, such as this, where the underlying IRE

was still being actively litigated when Protz II was issued. The extent to which Protz II may be

retroactively applied to another factual scenario is not currently before us.

10

“Due course of law” differs from due process. As the Supreme Court explained:

11

is applied retroactively. This constitutional right is grounded in the Remedies Clause

in Article I, Section 11 of the Pennsylvania Constitution, which provides:

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 Commonwealth in such manner, in

such courts and in such cases as the Legislature may by law direct.

Pa. Const. art. I, § 11 (emphasis added).

Generally, the due course of law provision is invoked when a change in the

legislation attempts to alter or eliminate a vested or accrued cause of action.

Konidaris v. Portnoff Law Assocs., Ltd., 953 A.2d 1231, 1240 (Pa. 2008). However,

the principle also applies to protect a party’s vested or accrued absolute defense from

being extinguished. Ieropoli v. AC&S Corp., 842 A.2d 919, 927 (Pa. 2004); City of

Warren v. Workers’ Comp. Appeal Bd. (Haines), 156 A.3d 371, 379 (Pa. Cmwlth.),

petition for allowance of appeal denied, 170 A.3d 1039 (Pa. 2017). We explained:

A legal exemption from liability on a particular demand, constituting a

complete defense to an action brought, stands on quite as high ground

as a right of action. If the law of the case at the time when it became

complete is such an inherent element in it that a plaintiff may claim it

as a vested right, on what possible ground can it be held that a defendant

has no vested right with respect to an exemption or defense? The

authorities make no distinction between them.

The right to due process protects people against official deprivations of liberty or

property by the state, except by “law of the land.” By contrast, the right to “due

course of law” provides an independent guarantee of legal remedies for private

wrongs by one person against another, through the state’s judicial system.

Konidaris v. Portnoff Law Assocs., Ltd., 953 A.2d 1231, 1240 (Pa. 2008) (quotation omitted).

12

City of Warren, 156 A.3d at 379 (quoting Lewis v. Pa. R. Co., 69 A. 821, 823 (Pa.

1908)).

Employer argues its right to utilize the IRE process to modify Claimant’s

benefits, which has been relied upon by employers and insurers for over 20 years as

a means of capping liability, cannot be limited by Protz II because to do so would

violate its right to the due course of law. There are two flaws with Employer’s

argument. First, the due course of law is limited in scope to protecting only vested

rights. Konidaris, 953 A.2d at 1242; Ieropoli, 842 A.2d at 927. A vested right is

“something more than a mere expectation, based upon an anticipated continuance of

existing law. It must have become a title, legal or equitable, to the present or future

enforcement of a demand, or a legal exemption from a demand made by another.”

Konidaris, 953 A.2d at 1242 (quotation omitted). Contrary to Employer’s

assertions, Employer did not have a vested right. As discussed above, its

Modification Petition was still being litigated. Therefore, it did not have “title, legal

or equitable,” to continued reliance on the IRE provisions. Id. At best, it had “a

mere expectation[] based upon an anticipated continuance of existing law.” Id. In

short, Employer had no reasonable expectation that the IRE would be upheld as

Claimant’s disability status was still being litigated.

Second, it is not clear to what extent, if any, the Remedies Clause, in which

the due course of law protection is found, applies when a statute is declared

unconstitutional. Employer cites to no cases applying the Remedies Clause to a

statute that was declared unconstitutional, nor have we found one. Rather, the case

law appears limited to cases in which the General Assembly has acted either to

amend or repeal a statute, such as in Konidaris and Lewis, or to enact new legislation,

such as in Ieropoli and City of Warren, affecting one’s existing rights. The Supreme

13

Court stated that the purpose of the Remedies Clause is protection from legislative

action and to ensure a vested right is not eliminated by subsequent legislation.

Konidaris, 953 A.2d at 1242; Ieropoli, 842 A.2d at 932. The dearth of case law

applying the Remedies Clause when a statute is declared unconstitutional makes

sense in that a party should not be able to claim that its constitutional right to the due

course of law is being violated and that it should be able to continue to benefit from

an unconstitutional law to the detriment of another party whose rights were affected

by that unconstitutional law. Accordingly, we are not persuaded by Employer’s

Remedies Clause argument.

Finally, Employer argues that Claimant waived his right to challenge the

constitutionality of the IRE because he did not raise it before the WCJ or Board.

However, it clearly became an issue once Protz I was decided. Employer made it

an issue by seeking to reopen the record to introduce a new IRE that complied with

Protz I. Claimant objected to the request and instead requested the WCJ to dismiss

Employer’s Modification Petition based upon Protz I because the IRE used the Sixth

Edition of the Guides. The WCJ allowed the new IRE over Claimant’s objection

and expressly stated in his decision that Claimant’s objection, based on Protz I, was

preserved for purposes of appeal. In addition, in its cross-appeal to the Board,

Employer again raised Protz I as an issue and actually sought a stay pending the

Supreme Court’s decision in Protz II, which the Board apparently obliged in

granting. Surely Employer could not expect the Board to apply the Supreme Court’s

decision only if it was favorable to Employer and disregard it if it was not.

Furthermore, although the parties’ briefs to the Board are not part of the certified

record in this matter, in its brief to this Court, Employer quotes a portion of

Claimant’s brief to the Board wherein Claimant clearly argues that the Modification

14

Petition “must be reversed in light of Protz . . . [II].” (Employer’s Br. at 40.) In

short, Protz I and II were directly at issue before the WCJ and Board.

Even if they were not, the constitutionality of a statute need not be raised

before an administrative agency. Section 703(a) of the Administrative Agency Law

provides, in pertinent part: “A party who proceeded before a Commonwealth agency

under the terms of a particular statute shall not be precluded from questioning the

validity of the statute in the appeal.” 2 Pa. C.S. § 703(a). Rule 1551(a)(1) of the

Pennsylvania Rules of Appellate Procedure contains a similar provision, providing:

“No question shall be heard or considered by the court which was not raised before

the government unit except: (1) Questions involving the validity of a statute.”

Pa.R.A.P. 1551(a)(1).

This is consistent with our decision in Thompson. There, although the

claimant had not challenged the constitutionality of the IRE before the WCJ or the

Board, she did raise it in her petition for review. We rejected the employer’s

argument that the claimant waived the issue by not timely raising it, noting that “this

matter began before Protz I and Protz II were decided,” it implicated the validity of

Section 306(a.2) of the WC Act, and the “[c]laimant raised this issue at the first

opportunity to do so.” Thompson, 168 A.3d at 412 n.4. Accordingly, we applied

Protz II and reversed the Board’s decision modifying the claimant’s benefits from

total to partial. Id. at 412-13. Here, although he was not required to raise a

constitutional issue at all before the Board, 2 Pa. C.S. § 703(a); Pa.R.A.P. 1551(a)(1),

Claimant did raise it in his brief to the Board.

Employer cites this Court’s decision in Winchilla v. Workers’ Compensation

Appeal Board (Nexstar Broadcasting), 126 A.3d 364 (Pa. Cmwlth.), petition for

allowance of appeal denied, 130 A.3d 1293 (Pa. 2015), for the proposition that

15

Claimant waived the constitutionality argument by not raising it previously. This

statement of Winchilla is overly broad. In that case, the claimant was appealing

modification of his disability status from total to partial based upon an IRE using the

Sixth Edition of the Guides. The Board affirmed, finding it could not decide the

claimant’s constitutional challenge. In his petition for review to this Court, the

claimant merely stated that “the IRE provisions . . . as applied to [the claimant]

and/or facially, are unconstitutional, as they are capricious, arbitrary, not reasonably

calculated, confiscatory, not used to assess disability in the [WC] sense, improperly

disregard evidence that [the claimant] was totally disabled and improperly

extinguish rights.” Id. at 367 (quoting the claimant’s petition for review ¶ 8).

However, in his brief, the claimant expounded on that argument and argued

specifically that Section 306(a.2) was an unconstitutional delegation of legislative

authority. We agreed with the employer’s argument that the claimant waived that

argument by failing to raise it in his petition for review, finding the claimant did

not cite Article II, Section 1 of the Pennsylvania Constitution or in any manner assert

the IRE provisions were unconstitutional because they delegated legislative

authority. Id. at 367-68. We held this “unspecified constitutional claim” was

insufficient to preserve this issue for appellate review under Rule 1513(d) of the

Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1513(d).11 Id. at 368. Thus,

Winchilla is inapplicable because the issue here is not whether Claimant properly

raised this issue in a petition for review to this Court.

11

As discussed in Winchilla, Rule 1513(d) was amended in December 2014, after the

petitioner in that case filed his petition for review, to allow an appellate court to consider an issue,

even if it was not raised in the petition, “if the court is able to address the issue based on the

certified record.” Winchilla, 126 A.3d at 368 n.6 (emphasis omitted) (quoting Pa.R.A.P. 1513(d)).

The effect of the amendment was to soften the waiver provisions.

16

In conclusion, because Claimant’s change in disability status based upon an

IRE was still being litigated at the time Protz II was decided, Protz II applies.

Employer has not demonstrated how applying Protz II to a pending case violates its

right to the due course of law under the Remedies Clause of the Pennsylvania

Constitution. Furthermore, Claimant raised Protz II at the first available

opportunity, even though he was not required to raise a constitutional issue before

either the WCJ or Board.

Accordingly, we find no error in the Board’s reasoning and affirm its Order.

_____________________________________

RENÉE COHN JUBELIRER, Judge

17

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dana Holding Corporation, :

Petitioner :

:

v. : No. 1869 C.D. 2017

:

Workers’ Compensation Appeal :

Board (Smuck), :

Respondent :

ORDER

NOW, October 11, 2018, the Order of the Workers’ Compensation Appeal

Board dated November 28, 2017, is AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge