L. DeLuca v. Cservak Mgmt. Svcs., LLC (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Leo DeLuca, :
Petitioner :
:
v. :
:
Cservak Management Services, LLC :
(Workers’ Compensation Appeal :
Board), : No. 238 C.D. 2022
Respondent : Submitted: August 5, 2022
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: December 22, 2022
Leo DeLuca (Claimant) petitions for review of the March 1, 2022 order
of the Workers’ Compensation Appeal Board (Board) affirming the decision of the
workers’ compensation judge (WCJ) to grant the requested modification of
Claimant’s workers’ compensation benefits from total to partial disability. Upon
review, we affirm.
I. Background
In July 2010, Claimant sustained work-related injuries in the form of
midback, left arm/shoulder and neck sprain/strain while working for Cservak
Management Services, LLC (Employer). WCJ Decision & Order, 5/26/21 (WCJ
Decision), Finding of Fact (F.F.) 1, Certified Record (C.R.) at 17. 1 By means of an
amended notice of compensation payable, Employer accepted liability for payment
of total disability benefits as of January 2015. F.F. 1; Board Decision & Order,
3/1/22 (Board Decision) at 1, C.R. at 19. On November 7, 2019, a physician
conducted an impairment rating evaluation (IRE) of Claimant pursuant to the Sixth
Edition of the American Medical Association (AMA) Guides to the Evaluation of
Permanent Impairment, Second Printing (Guides), which yielded a whole body
impairment rating of 28%. F.F. 5 & 7.2
In August 2020, Employer filed a modification petition, seeking to
change Claimant’s disability status from total to partial on the basis of the November
2019 IRE. F.F. 2. Claimant opposed the modification petition on the basis that the
Act of October 24, 2018, P.L. 714, No. 111 (Act 111), relating to IREs and
modifications, is unconstitutional. In May 2021, the WCJ granted the requested
modification, declaring Claimant’s change in disability status from total to partial
effective as of November 7, 2019, the date of the IRE. Conclusion of Law (C.L.) 3;
WCJ Decision at 6, C.R. at 20. The WCJ noted, however, that it lacked the authority
to address Claimant’s constitutional objections to Act 111. C.L. 4.
Claimant appealed to the Board, which affirmed. Board Decision at 1
& 7, C.R. at 19 & 25. Noting that, like the WCJ, it lacked the authority to declare
unconstitutional any portion of the Workers’ Compensation Act (WC Act),3 the
1
Citations to the certified record reference the pages of the PDF document, as the record
is not internally paginated.
2
In December 2020, the physician performing Claimant’s IRE submitted an addendum
report opining that Claimant had reached maximum medical improvement as of November 2019.
WCJ’s Decision and Order, 5/26/21, Finding of Fact 5.
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
2
Board nevertheless observed that this Court previously rejected the same arguments
levied by Claimant in support of his constitutional challenge. Id. at 3 & 6, C.R. at
21 & 24 (citing Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada), 238 A.3d 551(Pa. Cmwlth. 2020); Pierson v. Workers’ Comp. Appeal Bd. (Consol Pa. Coal Co.
LLC), 252 A.3d 1169 (Pa. Cmwlth. 2021), appeal denied, 261 A.3d 378 (Pa. 2021);
Hutchinson v. Annville Twp. (Workers’ Comp. Appeal Bd.), 260 A.3d 360 (Pa.
Cmwlth. 2021), appeal denied, 279 A.3d 1180 (Pa. 2022)).
Claimant petitioned this Court for review.
II. Issues
Before this Court,4 Claimant argues that the Board erred in affirming
the modification of his disability status, because Act 111 is unconstitutional. See
Claimant’s Br. at 8-9 & 13. Claimant contends that the “minor changes” effected
by Act 111 fail to remedy the unconstitutionality of former Section 306(a.2) of the
WC Act, formerly 77 P.S. § 511.2.5 Id. at 9 (citing Protz v. Workers’ Comp. Appeal
Bd. (Derry Area Sch. Dist.), 161 A.3d 827 (Pa. 2017) (Protz II)). Claimant asserts
that Act 111’s reduction of the partial disability threshold from an impairment rating
of less than 50% to a rating of less than 35% fails to remediate the impermissible
delegation of powers deemed unconstitutional by the Pennsylvania Supreme Court
in Protz II. Id. at 8-9. Claimant likewise maintains that Act 111’s designation of
the Sixth Edition of the Guides in assessing whole body impairment fails to remedy
4
This Court’s scope of review is limited to determining whether the WCJ’s necessary
findings of fact are supported by substantial evidence, whether an error of law was committed, or
whether constitutional rights were violated. Russell v. Workmen’s Comp. Appeal Bd. (Volkswagen
of Am.), 550 A.2d 1364 (Pa. Cmwlth. 1988).
5
Added by the Act of June 24, 1996, P.L. 350, formerly 77 P.S. § 511.2, repealed by Act
111.
3
this constitutional defect. Id. at 9. Claimant also contends that Act 111 may not be
applied retroactively to his case, as his July 2010 injury predates the Act’s October
24, 2018 effective date, and workers’ compensation claims accrue on the date of
injury. Id. at 10. Further, Claimant asserts that, assuming arguendo the
constitutionality of Act 111 and its applicability to the present dispute, his November
2019 IRE was nevertheless premature because Act 111 constitutes “new legislation
imposing new restrictions on the receipt of benefits,” such that his IRE would have
been appropriate only after receiving 104 weeks of full disability benefits after the
passage of Act 111. Id.
III. Discussion
In Protz v. Workers’ Compensation Appeal Board (Derry Area Sch.
Dist.), 124 A.3d 406 (Pa. Cmwlth. 2015) (Protz I), aff’d in part, rev’d in part, Protz
II, a claimant challenged the modification of her benefits from total to partial
disability under former Section 306(a.2) of the WC Act, 77 P.S. § 511.2, on the basis
that the provision unconstitutionally delegated legislative authority in contravention
of article II, section 1 of the Pennsylvania Constitution.6 See Protz I, 124 A.3d at408 & 410-11. We agreed, holding that the challenged statute’s provision for use of
the most recent edition of the Guides in evaluating the degree of impairment
impermissibly delegated legislative authority to the AMA to establish the criteria for
such evaluations. Id. at 410-15 (citing former Section 306(a.2)(1) of the WC Act,
77 P.S. § 511.2). Thus, we deemed former Section 306(a.2) of the WC Act, 77 P.S.
§ 511.2, unconstitutional “insofar as it proactively approved versions of the AMA
Guides beyond the Fourth Edition without review”; we remanded the matter to the
6
“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.
4
Board with instruction to remand to the WCJ to apply that edition to the dispute. Id.
at 416. Our Supreme Court affirmed in part and reversed in part, holding that this
Court erred in failing to strike former Section 306(a.2) in its entirety on the basis
that the valid portions were inseparable from the constitutionally defective
provisions. Protz II, 161 A.3d at 841.
In response to Protz II, the General Assembly enacted Act 111 on
October 24, 2018 to replace the unconstitutional provision with Section 306(a.3), 77
P.S. § 511.3.7 Act 111 amended the WC Act by lowering the threshold impairment
7
Section 306(a.3) provides, in pertinent part:
(1) When an employe has received total disability compensation
pursuant to clause (a)[, referring to Section 306(a) of the WC Act,
77 P.S. § 511,] for a period of one hundred and four weeks, unless
otherwise agreed to, the employe shall be required to submit to a
medical examination which shall be requested by the insurer within
sixty days upon the expiration of the one hundred and four weeks to
determine the degree of impairment due to the compensable injury,
if any. The degree of impairment shall be determined based upon
an evaluation by a physician who is licensed in this Commonwealth,
who is certified by an American Board of Medical Specialties-
approved board or its osteopathic equivalent and who is active in
clinical practice for at least twenty hours per week, chosen by
agreement of the parties, or as designated by the department,
pursuant to the [Guides,] 6th edition (second printing April 2009).
(2) If such determination results in an impairment rating that meets
a threshold impairment rating that is equal to or greater than thirty-
five per centum impairment under the [Guides,] 6th edition (second
printing April 2009), the employe shall be presumed to be totally
disabled and shall continue to receive total disability compensation
benefits under clause (a). If such determination results in an
impairment rating less than thirty-five per centum impairment under
the [Guides,] 6th edition (second printing April 2009), the employe
shall then receive partial disability benefits under clause (b)[,
referring to [former] Section 306(b) of the WC Act, 77 P.S. § 512,]
provided, however, [t]hat no reduction shall be made until sixty
days’ notice of modification is given.
5
rating for determining partial disability from less than 50% to less than 35%.
Compare Section 306(a.3) of the WC Act, 77 P.S. § 511.3, with former Section
306(a.2) of the WC Act, formerly 77 P.S. § 511.2. Act 111 also specified that IREs
shall be performed using the Sixth Edition of the Guides. See Section 306(a.3) of
the WC Act, 77 P.S. § 511.3.
Claimant asserts that Act 111 fails to remediate the delegation of
legislative authority deemed unconstitutional by the Protz II Court. See Claimant’s
Br. at 8-9. As we have repeatedly and consistently held in rejecting identical
arguments in other matters, this assertion has no merit. In Pennsylvania AFL-CIO
v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth. 2019), we upheld Act 111 against an
identical constitutional challenge, reasoning as follows:
The non-delegation doctrine does not prohibit the General
Assembly from “adopting as its own a particular set of
standards which already are in existence at the time of
adoption.” Protz II, 161 A.3d at 838 . . . . That is what the
General Assembly did here—it adopted the Sixth Edition,
second printing, which PA AFL-CIO admits was in
existence when Section 306(a.3)[ of the WC Act, 77 P.S.
§ 511.3,] was enacted, “as its own.” Id. When such an
adoption occurs, the General Assembly is exercising its
legislative and policy making authority by deciding that it
is those particular standards that will become the law of
this Commonwealth. It is not delegating its authority to
legislate. The General Assembly made a policy decision
regarding the standards that will apply to IREs in the
Commonwealth going forward.
77 P.S. § 511.3(1), (2).
6
Pa. AFL-CIO, 219 A.3d at 316 (emphasis omitted).8 For the reasons already
repeatedly articulated by this Court, Claimant’s constitutional challenge is
meritless.9
In addition, Claimant maintains that Act 111 is not applicable to his
case because his injury predated the statute’s enactment. See Claimant’s Br. at 9-
10. Again, this Court has held repeatedly to the contrary in rejecting identical
arguments:
8
Similarly, in Hutchinson v. Annville Township (Workers’ Compensation Appeal Board),
260 A.3d 360, 366 (Pa. Cmwlth. 2021), appeal denied, 279 A.3d 1180 (Pa. 2022), we deemed
meritless a claimant’s assertion that Act 111 was unconstitutional based on an identical argument
that its provision for IREs pursuant to the Sixth Edition of the Guides improperly delegated
legislative authority to the AMA:
[The c]laimant misapprehends this Court’s analysis and holding in
[Protz I]. The flaw in former Section 306(a.2) [of the WC Act, formerly
77 P.S. § 511.2,] was that, unlike the replacement provision of Act
111, it did not simply adopt a set of existing standards; rather, by
mandating use of the most recent version of the Guides, it allowed
the AMA to alter the standards at will without any legislative
oversight. See Protz I, 124 A.3d at 416.
Hutchinson, 260 A.3d 360, 366 n.9.
9
In conjunction with his constitutional challenge, Claimant laments that, as with the 50%
impairment rating threshold established by former Section 306(a.2) of the WC Act, the 35%
threshold of Act 111 is “virtually impossible to reach[.]” Claimant’s Br. at 9. Claimant’s critique
fails to appreciate that “for the benefit of claimants, the General Assembly [] specifically reduced
the impairment rating necessary for a claimant’s status to be changed from 49% or lower to 34%
or lower, making it more difficult for employers to change total disability status to partial disability
status.” Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada), 238 A.3d 551, 562 (Pa. Cmwlth.
2020) (emphasis added). Moreover, Claimant fails to elucidate why this advantageous change
purportedly fails to remedy the unconstitutional aspects of former Section 306(a.2) of the WC Act,
formerly 77 P.S. § 511.2. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (citations
omitted) (holding that “where an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other meaningful fashion capable
of review, that claim is waived,” further stating that “[i]t is not the obligation of [an appellate court]
. . . to formulate [an a]ppellant’s arguments for him”).
7
While [the c]laimant . . . argues that he has a [vested] right
to benefits as calculated at the time of injury, there are
reasonable expectations under the [WC] Act that benefits
may change. We acknowledge that a claimant retains a
certain right to benefits until such time as he is found to be
ineligible for them. However, claimants, such as the one
in the matter before us, did not automatically lose anything
by the enactment of Act 111. Act 111 simply provided
employers with the means to change a claimant’s
disability status from total to partial by providing the
requisite medical evidence that the claimant has a whole
body impairment of less than 35%, after receiving 104
weeks of [temporary total disability] benefits.
Pierson, 252 A.3d at 1179; see also Hutchinson, 260 A.3d at 366 (rejecting a
claimant’s assertion that Act 111’s applicability to injuries predating its enactment
renders it improperly retroactive, holding that “the 104-week and credit provisions
of Act 111 were explicitly given retroactive effect by the clear language used by the
General Assembly”). Moreover, this Court has clarified that
Section 3 of Act 111 does not evidence clear legislative
intent that the entirety of Act 111 should be given
retroactive effect. Instead, it appears the General
Assembly intended that employers and insurers that relied
upon former Section 306(a.2)[, formerly 77 P.S. § 511.2,]
to their detriment by not pursuing other methods of a
modification should not bear the entire burden of the
provision being declared unconstitutional.
....
That the General Assembly used specific language to give
retroactive effect to these carefully selected individual
provisions does not make the entirety of Act 111
retroactive as the amendment lacks clear language to that
effect. City of Warren [v. Workers’ Comp. Appeal Bd.
(Haines)], 156 A.3d [371,] 376 [Pa. Cmwlth. 2017].
8
Rose Corp., 238 A.3d at 562 (footnote omitted). Thus, we conclude that Claimant’s
contention that Act 111 is impermissibly retroactive is also meritless.10
Claimant also contends that his November 2019 IRE was premature, as
he had not yet received 104 weeks of total disability benefits following the enactment
of Act 111 in October 2018. See Claimant’s Br. at 10. This argument is directly
contrary to the express language of Act 111. Section 3(1) of Act 111 provides:
(1) For the purposes of determining whether an employee
shall submit to a medical examination to determine the
degree of impairment and whether an employee has
received total disability compensation for the period of
104 weeks under [S]ection 306(a.3)(1) of the [WC A]ct,
[77 P.S. § 511.3(1),] an insurer shall be given credit for
weeks of total disability compensation paid prior to the
effective date of this paragraph.[11] This section shall not
be construed to alter the requirements of [S]ection
306(a.3) of the [WC A]ct.
Section 3(1) of Act 111 (emphasis added). Thus, “[t]hrough the use of very careful
and specific language, the General Assembly provided employers/insurers with
credit for the weeks of compensation, whether total or partial in nature, previously
paid.” Rose Corp., 238 A.3d at 562 (holding that “[b]ecause [the c]laimant already
10
Claimant also asserts that if limited to 500 weeks of partial disability benefits, this
benefits period should commence on November 7, 2019, the date of the IRE, as Claimant did not
receive payment of partial disability benefits prior to the enactment of Act 111. See Claimant’s
Br. at 11. However, the Board already affirmed the WCJ’s conclusion that November 7, 2019
constituted the effective date for Claimant’s change in disability status from total to partial. See
C.L. 3; Board Decision at 2 & 7, C.R. at 20 & 25. Thus, Claimant’s 500-week period of partial
disability benefits began on that date. See Section 306(b) of the WC Act, 77 P.S. § 512(1).
Therefore, Claimant’s contention is moot.
11
“This 104 weeks is important because, under both the former and current IRE provisions,
a claimant need not attend an IRE until after the claimant receives 104 weeks of total
compensation.” Rose Corp., 238 A.3d at 561 (citing Section 306(a.3)(1) of the WC Act, 77 P.S.
§ 511.3(1); former Section 306(a.2)(1) of the WC Act, formerly 77 P.S. § 511.2(1)).
9
received 104 weeks of total disability benefits, under Section 306(a.3)(1), [the
e]mployer [could] seek a new IRE,” as the employer was entitled to credit for the
104 weeks of total disability benefits paid prior to changing the claimant’s disability
status to partial based on a 2013 IRE conducted under former Section 306(a.2) of
the WC Act, formerly 77 P.S. § 511.2); see also Pierson, 252 A.3d at 1179-80
(stating that “the General Assembly made it clear in Act 111 that weeks of
[temporary total 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,” as
“it stated in plain language it was doing so”).
Accordingly, for the foregoing reasons, we affirm.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Leo DeLuca, :
Petitioner :
:
v. :
:
Cservak Management Services, LLC :
(Workers’ Compensation Appeal :
Board), : No. 238 C.D. 2022
Respondent :
ORDER
AND NOW, this 22nd day of December, 2022, the March 1, 2022
decision of the Workers’ Compensation Appeal Board is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge