T. Cantanese v. WCAB (RTA Services Co., Inc.) ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Cantanese, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (RTA Services Co., Inc.), : No. 1739 C.D. 2019
Respondent : Submitted: June 12, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 21, 2020
Thomas Cantanese (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) November 5, 2019 order
quashing Claimant’s appeal from the Decision and Order of the Workers’
Compensation Judge (WCJ) granting RTA Services Co., Inc.’s (Employer) Petition
for Physical Examination or Expert Interview (Petition). The sole issue before this
Court is whether the Board properly quashed Claimant’s appeal as interlocutory.1
After review, we affirm.
Claimant sustained a compensable injury on December 11, 2013, and,
pursuant to a Notice of Compensation Payable, began receiving benefits pursuant to
1
Claimant presents two issues for this Court’s review: 1) whether Claimant’s failure to
attend an Impairment Rating Evaluation was reasonable because Act 111 of 2018 (Act 111), Act of
October 24, 2018, P.L. 714, violates the remedies clause of the Pennsylvania Constitution and
deprives him of a vested right in paid benefits; and 2) whether Act 111 violates the Pennsylvania
Constitution’s non-delegation rule. See Claimant Br. at 7. However, because the issue of whether
the WCJ’s order is interlocutory is dispositive, this Court does not reach these issues.
the Workers’ Compensation Act2 (WC Act). On January 31, 2019, Employer filed
the Petition seeking to compel Claimant’s attendance at an Impairment Rating
Evaluation (IRE), alleging that Claimant had failed to attend an IRE on January 28,
2019. On May 3, 2019, the WCJ granted the Petition. Claimant appealed to the
Board, arguing that the WCJ erred by ordering him to appear at an IRE because Act
111 of 20183 (Act 111) is unconstitutional. On November 5, 2019, the Board
quashed Claimant’s appeal as interlocutory. Claimant appealed to this Court.4
The law is well established that “where an order does not dispose of all
claims or all parties, it is interlocutory and not appealable to this Court.” Swartz v.
Workers’ Comp. Appeal Bd. (Cheltenham York Rd. Nursing & Rehab.), 869 A.2d 35,
37 (Pa. Cmwlth. 2005); see also Section 763 of the Judicial Code, 42 Pa.C.S. §
763(a); Pa.R.A.P. 341(b). “Furthermore, this Court has held that an order directing a
claimant to submit to a medical examination is interlocutory.” Groller v. Workers’
Comp. Appeal Bd. (Alstrom Energy Sys.), 873 A.2d 787, 789 (Pa. Cmwlth. 2005).
In Groller, this Court explained:
Because the IRE Order merely stated that [the c]laimant
was required to participate in the IRE and neither affected
[the c]laimant’s benefits nor affected [the e]mployer’s
obligation to pay benefits, the IRE Order was a non-
appealable, interlocutory order. Because the IRE Order is
interlocutory, it is not a final order . . . .
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
3
The Pennsylvania Supreme Court, in Protz v. Workers’ Compensation Appeal Board
(Derry Area School District), 161 A.3d 827 (Pa. 2017), found portions of the former IRE
provisions, contained in former Section 306(a.2) of the WC Act, added by the Act of June 24, 1996,
P.L. 350, 77 P.S. § 511.2, violated the non-delegation clause of the Pennsylvania Constitution. Act
111 repealed former Section 306(a.2) of the WC Act and added Section 306(a.3) to the WC Act,
which amended the Act’s IRE provisions.
4
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
2
Groller, 873 A.2d at 789; see also Kuzo v. Workers’ Comp. Appeal Bd. (St. Luke’s
Miner’s Mem’l Med. Ctr.), 936 A.2d 1216 (Pa. Cmwlth. 2007); Watson v. Workers’
Comp. Appeal Bd. (Hillsberg) (Pa. Cmwlth. No. 1203 C.D. 2019, filed April 15,
2020);5 Carter v. Workers’ Comp. Appeal Bd. (GenCorp., Inc.) (Pa. Cmwlth. No.
1172 C.D. 2012, filed May 7, 2013). Here, the order on review before the Board was
the WCJ’s interlocutory order directing Claimant to appear for an IRE. Because the
Board correctly concluded Claimant’s appeal was interlocutory, it properly quashed
Claimant’s appeal.
For all of the above reasons, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
5
This Court acknowledges that its unreported memorandum opinions may only be cited “for
[their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). This Court finds the Watson and
Carter decisions persuasive and cites to them accordingly.
In Watson, as in the instant matter, the claimant objected to a proposed IRE contending that
Act 111 was unconstitutional. A WCJ granted the employer’s petition for physical examination and
directed the claimant to submit to a physical examination. The claimant appealed to the Board,
arguing, inter alia, that the WCJ’s order was a final order and that Act 111’s amended IRE
provisions were unconstitutional because they were being applied retroactively, they require
physicians to rely on one specific version of the American Medical Association Guides to the
Evaluation of Permanent Impairment, and they constitute an unconstitutional delegation. The
Board quashed claimant’s appeal as interlocutory, and this Court affirmed the Board’s order.
3
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Cantanese, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (RTA Services Co., Inc.), : No. 1739 C.D. 2019
Respondent :
ORDER
AND NOW, this 21st day of July, 2020, the Workers’ Compensation
Appeal Board’s November 5, 2019 order is affirmed.
___________________________
ANNE E. COVEY, Judge