K. Hender-Moody v. American Heritage Federal Credit Union (WCAB) ( 2022 )


Menu:
  •            IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Kimberly Hender-Moody,            :
    :
    Petitioner :
    :
    v.                    : No. 166 C.D. 2021
    : Submitted: June 11, 2021
    American Heritage Federal         :
    Credit Union (Workers’            :
    Compensation Appeal Board),       :
    :
    Respondent :
    BEFORE:       HONORABLE MARY HANNAH LEAVITT, Judge1
    HONORABLE MICHAEL H. WOJCIK, Judge
    HONORABLE ELLEN CEISLER, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE WOJCIK                                          FILED: February 15, 2022
    Kimberly Hender-Moody (Claimant) petitions for review of an order of
    the Workers’ Compensation Appeal Board (Board) that affirmed a decision of the
    Workers’ Compensation Judge (WCJ) granting American Heritage Federal Credit
    Union’s (Employer) Modification Petition based on an Impairment Rating
    Evaluation (IRE), and modifying Claimant’s indemnity benefits from total to partial
    disability. Claimant challenges as unconstitutional the retroactive application of Act
    111 of 2018 (Act 111), which added Section 306(a.3) of the Workers’ Compensation
    1
    This matter was assigned to the panel before January 3, 2022, when President Judge
    Emerita Leavitt became a senior judge on the Court.
    Act (Act),2 altered the criteria for determining whether a claimant’s disability is total
    or partial, and provided that an impairment rating of less than 35% constitutes a partial
    disability. Upon review, we affirm.
    I. Background
    On June 4, 2013, Claimant sustained a work-related cervical and right
    shoulder sprain/strain (2013 Injury). Employer accepted liability for the injury and
    paid disability benefits for various periods. Thereafter, Claimant filed a Claim
    Petition to include a work-related injury in the nature of an aggravation of migraine
    headache syndrome that occurred on February 2, 2015 (2015 Injury). By decision
    and order circulated on October 24, 2016, the WCJ granted Claimant’s Claim
    Petition. The WCJ suspended benefits for the 2013 Injury and awarded total
    disability benefits for the 2015 Injury as of February 2, 2015, and ongoing.
    On June 26, 2019, Claimant underwent an IRE at Employer’s request
    as required under Section 306(a.3)(1) of the Act, 77 P.S. §511.3(1). The IRE yielded
    an impairment rating of less than 35%. Based on this impairment rating, Employer
    filed a Modification Petition seeking to change Claimant’s disability status from
    total to partial under Act 111.
    By decision and order circulated on January 6, 2020, the WCJ granted
    Employer’s Modification Petition. The WCJ concluded that Employer met its
    burden of proof under Act 111 and modified Claimant’s disability status from total
    to partial effective June 26, 2019, the date of the IRE. Claimant appealed to the
    Board, which affirmed. Although Claimant challenged the constitutionality of Act
    111, the Board explained that as an administrative agency it lacks authority to
    2
    The Act of June 2, 1915, P.L. 736, as amended, added by Act of October 24, 2018, P.L.
    714, No. 111 (Act 111), 77 P.S. §511.3.
    2
    declare a statute unconstitutional. This appeal now follows.3
    II. Issue
    Claimant argues that the retroactive application of Act 111’s IRE
    mechanism, which went into effect on October 24, 2018, to modify her total
    disability benefits awarded for her 2015 Injury from total to partial is
    unconstitutional. Claimant maintains that once a claimant has an accepted work
    injury, it is unconstitutional for the General Assembly to enact a law that creates a
    new mechanism to limit the payment of benefits to the employee. Act 111’s IRE
    mechanism is not procedural, but substantive because it negatively impacted
    Claimant’s disability status by changing her disability status from total to partial and
    limiting the number of claim weeks to which she is entitled. Because Act 111 was
    passed after Claimant’s work injury, and does not contain clear language evidencing
    retroactive intent, Act 111’s IRE mechanism cannot be retroactively applied to
    Claimant without impairing her vested rights in violation of article 1, section 11 of
    the Pennsylvania Constitution, Pa Const. art. 1, §11 (Remedies Clause).4
    III. Discussion
    On October 24, 2018, the General Assembly enacted Act 111, which
    immediately went into effect.           Act 111 repealed Section 306(a.2), formerly
    3
    Our review is limited to determining whether the WCJ’s findings of fact were supported
    by substantial evidence, whether an error of law was committed, or whether constitutional rights
    were violated. Department of Transportation v. Workers’ Compensation Appeal Board
    (Clippinger), 
    38 A.3d 1037
    , 1042 n.3 (Pa. Cmwlth. 2011). As to questions of law, our standard of
    review is de novo and our scope of review is plenary. Pitt-Ohio Express v. Workers’ Compensation
    Appeal Board (Wolff), 
    912 A.2d 206
    , 207 (Pa. 2006).
    4
    The Pennsylvania Association for Justice, a nonprofit organization that promotes the
    rights of individual citizens, filed an amicus curiae brief in support of Claimant’s position.
    3
    77 P.S. §511.2, and added Section 306(a.3) of the Act, 77 P.S. §511.3. Section
    306(a.3) reestablished the IRE process in a manner intended to cure the
    constitutional deficiency identified in Protz v. Workers’ Compensation Appeal
    Board (Derry Area School District), 
    161 A.3d 827
     (Pa. 2017).5 Act 111 largely
    reenacted the IRE provisions held unconstitutional in Protz but to cure the
    constitutional infirmity Act 111 specified that an IRE must utilize the American
    Medical Association (AMA) “Guides to the Evaluation of Permanent Impairment,”
    Sixth Edition (second printing April 2009) (Sixth Edition of the AMA Guides).6
    Notably, Section 306(a.3)(2) of the Act lowered the threshold percentage of
    impairment below which a claimant’s disability status could be modified from 50%,
    under former Section 306(a.2)(2) of the Act, to 35%. 77 P.S. §511.3(2). If an IRE
    yields an impairment rating that is greater than or equal to 35%, the claimant is
    presumed totally disabled. Id. However, if the IRE yields an impairment rating that
    is less than 35%, then the claimant is considered partially disabled. Id. Under
    Section 306(b)(1) of the Act, a claimant’s receipt of partial disability benefits is
    limited to 500 weeks. 77 P.S. §512(b)(1).
    5
    In Protz, the Pennsylvania Supreme Court held that the IRE provisions contained in
    former Section 306(a.2) of the Act, formerly 77 P.S. §511.2, violated the nondelegation doctrine
    of the Pennsylvania Constitution and struck the entirety of former Section 306(a.2) as
    unconstitutional. Protz, 161 A.3d at 841. Under former Section 306(a.2), a physician conducting
    an IRE was to use the “most recent edition” of the American Medical Association (AMA) “Guides
    to the Evaluation of Permanent Impairment” (AMA Guides). Protz, 161 A.3d at 830. The Protz
    Court held that this amounted to an unconstitutional delegation to the AMA of the General
    Assembly’s lawmaking power in that the AMA could revise the standards for determining
    impairment at any time with unfettered discretion. Id. at 841.
    6
    In Pennsylvania AFL-CIO v. Commonwealth, 
    219 A.3d 306
    , 317 (Pa. Cmwlth. 2019),
    aff’d per curiam (Pa., No. 88 MAP 2019, filed August 18, 2020), we determined that Act 111 was
    not an unconstitutional delegation of legislative authority because the General Assembly adopted
    a particular set of standards in existence as its own – the Sixth Edition of the AMA Guides.
    4
    The question before us is whether the retroactive application of Act
    111’s IRE mechanism to injuries occurring before its effective date is
    unconstitutional. “We have long held that ‘statutes are to be construed to operate
    prospectively,’ absent clear language to the contrary.” County of Allegheny v.
    Workers’ Compensation Appeal Board (Butkus), 
    253 A.3d 1232
    , 1237 (Pa. Cmwlth.
    2021) (quoting City of Warren v. Workers’ Compensation Appeal Board (Haines by
    Haines), 
    156 A.3d 371
    , 376 (Pa. Cmwlth. 2017)); see Section 1926 of the Statutory
    Construction Act of 1972, 1 Pa. C.S. §1926 (“No statute shall be construed to be
    retroactive unless clearly and manifestly so intended by the General Assembly.”).
    As this Court has explained, a retroactive law is
    one which relates back to and gives a previous transaction
    a legal effect different from that which it had under the law
    in effect when it transpired . . . . A law is given retroactive
    effect when it is used to impose new legal burdens on a
    past transaction or occurrence.
    Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System
    Hahnemann, LLC), 
    188 A.3d 599
    , 616 (Pa. Cmwlth. 2018) (quoting Department of
    Labor and Industry, Bureau of Employment Security v. Pennsylvania Engineering
    Corp., 
    421 A.2d 521
    , 523 (Pa. Cmwlth. 1980)). Where no vested right is involved,
    an act is not retroactively construed when it is simply applied to a condition existing
    on its effective date. Pierson v. Workers’ Compensation Appeal Board (Consol
    Pennsylvania Coal Co., LLC), 
    252 A.3d 1169
    , 1175 (Pa. Cmwlth.), appeal denied,
    
    261 A.3d 378
     (Pa. 2021) (citing Warren v. Folk, 
    886 A.2d 305
    , 308 (Pa. Super.
    2005)). Legislation that only affects procedure may be applied retroactively. 
    Id.
    In Pierson, we considered and rejected similar contentions regarding
    Act 111’s retroactivity. Pierson, 252 A.3d at 1175. There, as here, the claimant
    argued that applying Act 111 to injuries predating its enactment would impair a
    5
    claimant’s vested rights. Id. More particularly, the claimant argued that Section
    306(a.3) of the Act could not be applied retroactively to affect the 500 weeks of
    benefits payable for partial disability by giving the employer credit for payments
    made prior to Act 111’s enactment. In rejecting the claimant’s vested rights
    argument, we observed that “there are reasonable expectations under the Act that
    benefits may change.” Pierson, 252 A.3d at 1177. A claimant retains a certain right
    to benefits until such time as he or she is found ineligible for them. Id. Indeed,
    benefits are subject to change at any time based upon a change in medical status or
    earnings capacity. Section 423 of the Act, 77 P.S. §772.
    The Pierson Court opined that “the General Assembly made it clear in
    Act 111 that weeks of [total temporary disability (TTD)] and partial disability paid
    by an employer/insurer prior to the enactment of Act 111 count as credit against an
    employer’s new obligations under Act 111.” Pierson, 252 A.3d at 1179 (citing Rose
    Corp. v. Workers’ Compensation Appeal Board (Espada), 
    238 A.3d 551
     (Pa.
    Cmwlth. 2020)). “‘For the purposes of determining the total number of weeks of
    partial disability compensation payable under Section 306(a.3)(7) of the Act,
    [77 P.S. §511.3(7),] an insurer shall be given credit for weeks of partial disability
    compensation paid prior to the effective date of this paragraph.’” Pierson, 252 A.3d
    at 1174 (quoting 77 P.S. §511.3, Historical and Statutory Notes) (emphasis added).
    “[I]t is clear that the General Assembly intended for the 104-week and credit weeks
    provisions of Act 111 to be given retroactive effect, where . . . it stated in plain
    language it was doing so.” Id. at 1180 (citing Rose Corp.).
    We further explained that Act 111 did not affect the claimant’s vested
    rights because it did not impose new legal burdens on a past transaction or
    occurrence or otherwise change the status of a claimant’s workers’ compensation
    6
    benefits. Pierson, 252 A.3d at 1179. Rather, it merely established a means for an
    employer to seek a modification of a claimant’s benefits going forward.                          Id.
    Specifically, “Act 111 simply provided employers with the means to change a
    claimant’s disability status from total to partial by providing requisite medical
    evidence that the claimant has a whole body impairment of less than 35%, after
    receiving 104 weeks of TTD benefits.” Id. at 1179.
    Here, as in Pierson, the application of Act 111 did not automatically
    change Claimant’s disability status or otherwise deprive her of vested rights under
    the Act. Rather, Act 111 simply provided a mechanism for Employer to pursue a
    change in Claimant’s disability status by requiring medical evidence that Claimant’s
    whole-body impairment is less than 35%.                    See Pierson.        Act 111 clearly
    contemplates that IREs occurring after Act 111’s effective date will be based upon
    the standards of the Sixth Edition of the AMA Guides, with no limiting language
    regarding the date of injury or disability award. Indeed, Act 111’s IRE mechanisms
    can only apply after an employee has received 104 weeks of total disability benefits,
    which clearly contemplates application to injuries predating Act 111.
    77 P.S. §511.3(1). Claimant’s IRE occurred after the enactment of Act 111 and does
    not constitute a retroactive application of the law.
    Because our analysis in Pierson is directly applicable and controlling
    here, we reject Claimant’s constitutional challenges to Act 111. See Dohn v. Beck
    N’ Call (Workers’ Compensation Appeal Board) (Pa. Cmwlth., No. 103 C.D. 2021,
    filed September 20, 2021)7 (applying Pierson and similarly holding that retroactive
    application of Act 111 is not unconstitutional where substantive rights were not
    7
    See also Pa.R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . .
    an unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008.
    []Non-precedential decisions . . . may be cited for their persuasive value.”).
    7
    involved); Hutchinson v. Annville Township (Workers’ Compensation Appeal
    Board) (Pa. Cmwlth., Nos. 16 & 17 C.D. 2021, filed August 9, 2021) (same); cf.
    Butkus, 253 A.3d at 1237 (limiting retroactivity where Act 111 effected substantive
    changes in law and concluding that the General Assembly did not intend the 60-day
    statutory limitations period for challenging disability status modifications to apply
    retroactively).
    IV. Conclusion
    Accordingly, we affirm the Board’s order.
    MICHAEL H. WOJCIK, Judge
    8
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Kimberly Hender-Moody,            :
    :
    Petitioner :
    :
    v.                    : No. 166 C.D. 2021
    :
    American Heritage Federal         :
    Credit Union (Workers’            :
    Compensation Appeal Board),       :
    :
    Respondent :
    ORDER
    AND NOW, this 15th day of February, 2022, the order of the Workers’
    Compensation Appeal Board, dated February 2, 2021, is AFFIRMED.
    __________________________________
    MICHAEL H. WOJCIK, Judge
    

Document Info

Docket Number: 166 C.D. 2021

Judges: Wojcik, J.

Filed Date: 2/15/2022

Precedential Status: Precedential

Modified Date: 2/15/2022