J.J. Cobbs, III v. City of Philadelphia (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Julius J. Cobbs, III, :
Petitioner :
:
v. :
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), : No. 476 C.D. 2022
Respondent : Submitted: November 4, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 9, 2023
Julius J. Cobbs, III (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) April 20, 2022 order
affirming the WC Judge’s (WCJ) December 10, 2021 decision that granted the City
of Philadelphia’s (Employer) petition for modification of WC benefits (Modification
Petition), thereby modifying Claimant’s WC benefits from total disability to partial
disability status as of August 6, 2020. Claimant presents three issues for this Court’s
review: (1) whether Act 1111 can be applied to injuries that occurred before its
October 24, 2018 effective date; (2) whether Act 111 is an unlawful delegation of
legislative authority; and (3) whether Vinit K. Pande, M.D.’s (Dr. Pande) report and
testimony provided a sufficient evidentiary foundation for the WCJ to grant
Employer’s Modification Petition. Upon review, this Court affirms.
1
Act of October 24, 2018, P.L. 714, No. 111 (Act 111).
On August 28, 2013, Claimant was injured while operating a jack
hammer in the course and scope of his employment for Employer’s Water
Department. On August 28, 2013, Employer issued a Medical-Only Notice of
Compensation Payable, accepting Claimant’s work injury as a lower back sprain.
On August 3, 2018, Employer issued a Notice of Compensation Payable
acknowledging Claimant’s entitlement to wage loss and medical benefits.
In the interim, on June 20, 2017, the Pennsylvania Supreme Court
issued its decision in Protz v. Workers’ Compensation Appeal Board (Derry Area
School District), 161 A.3d 827 (Pa. 2017) (Protz II), holding that the impairment
rating evaluation (IRE) provisions contained in Section 306(a.2) of the WC Act
(Act)2 violated the nondelegation doctrine of the Pennsylvania Constitution and
striking Section 306(a.2) in its entirety from the Act. The Pennsylvania legislature
subsequently enacted Act 111, which became effective October 24, 2018. Act 111
repealed Section 306(a.2) of the Act, and reestablished the IRE process in Section
306(a.3) of the Act.3 The IRE process has remained substantially the same as before,
except that Act 111 requires that a physician use the American Medical
Association’s (AMA) Guides to the Evaluation of Permanent Impairment (AMA
Guides), 6th edition (second printing April 2009) (6th Edition AMA Guides) when
performing an IRE and allows for modification to partial disability status if a
claimant has a whole-body impairment of less than 35%.
On November 9, 2020, Claimant filed a Petition to Review WC
Benefits, alleging that the scope of his work injury should be expanded to include
additional diagnoses. Employer filed an answer admitting that Claimant’s August
28, 2013 work injury should be expanded. The matter was assigned to a WCJ who,
2
Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 24, 1996, P.L. 350,
formerly 77 P.S. § 511.2, repealed by Act 111, and replaced by Section 306(a.3) of the Act.
3
Added by Section 1 of Act 111, 77 P.S. § 511.3.
2
on December 15, 2020, issued an order approving and adopting a Stipulation of Facts
(Stipulation) between the parties expanding the scope of work-related injury to
include “lower back strain, L4-5 lumbar disc herniation, and exacerbation of pre-
existing L5-S1 disc herniation.” Reproduced Record (R.R.) at 100a.
On August 6, 2020, after Claimant received 104 weeks of WC disability
benefits,4 at Employer’s request pursuant to Section 306(a.3) of the Act, Claimant
underwent an IRE conducted by Dr. Pande. Based upon the 6th Edition AMA
Guides, Dr. Pande determined that Claimant had reached maximum medical
improvement relative to his accepted work injury, and his whole person impairment
was 3%. See R.R. at 151a-152a. However, after reviewing additional records and
the parties’ Stipulation, which were not available to him on August 6, 2020, Dr.
Pande concluded that Claimant had reached maximum medical improvement
relative to his expanded work injury, and his whole person impairment rating was
17%. See R.R. at 154a-155a.
Based on Claimant’s IRE results, on September 16, 2020, Employer
filed the Modification Petition, seeking to change Claimant’s indemnity benefits
from total to partial as of August 6, 2020. On November 9, 2020, Claimant opposed
the Modification Petition, generally denying Employer’s allegations and requesting
fees because Employer “has no contest.” R.R. at 12a. The matter was assigned to a
WCJ who conducted hearings on October 13 and November 17, 2020, and August
4
Under Section 306(a.3)(1) of the Act, an employer may not demand
an IRE until after the claimant has received 104 weeks of temporary
total disability compensation. [See] 77 P.S. § 511.3(1). Pursuant to
Section 3(2) of Act 111, an employer/insurer receives credit towards
this 104-week waiting period for any weeks of temporary total
disability benefits that were paid prior to Act 111’s enactment. [See]
77 P.S. § 511.3; see [also] White v. Workers’ Comp. Appeal Bd.
(City of Phila.), 237 A.3d 1225, 1230 (Pa. Cmwlth. 2020).
Hutchinson v. Annville Twp. (Workers’ Comp. Appeal Bd.), 260 A.3d 360, 363 n.7 (Pa. Cmwlth.
2021), appeal denied, 279 A.3d 1180 (Pa. 2022).
3
17, 2021. On December 10, 2021, the WCJ granted the Modification Petition,
changing Claimant’s disability status from total to partial as of his August 6, 2020
IRE date.5 Claimant appealed to the Board. On April 20, 2022, the Board affirmed
the WCJ’s decision. Claimant appealed to this Court.6
Claimant first argues that the WCJ erred in determining that Act 111
can be applied to injuries that occurred before its October 24, 2018 effective date,
when the Act does not contain a retroactivity clause or other specific terminology to
demonstrate that the legislature intended it to apply retroactively, as required by
Section 1926 of the Statutory Construction Act of 1972 (SCA)7, and Section 15.71
of the Legislative Reference Bureau’s Regulations.8
To the contrary, Act 111 replaced former Section 306(a.2) of the Act
with Section 306(a.3) of the Act, which declares, in pertinent part:
(1) When an employe has received total disability
compensation . . . for a period of [104] weeks, unless
5
“A modification to partial disability status does not reduce the amount of weekly wage
benefits paid to a claimant, but it limits future payments to 500 weeks from the modification date.”
Hutchinson, 260 A.3d at 362 n.4; see also Whitfield v. Workers’ Comp. Appeal Bd. (Tenet Health
Sys. Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018).
6
“[This Court’s] review is limited to determining whether an error of law was committed,
whether necessary findings of fact were supported by substantial evidence, and whether
constitutional rights were violated.” Hutchinson, 260 A.3d at 364 n.8 (quoting Gienic v. Workers’
Comp. Appeal Bd. (Palmerton Hosp.), 130 A.3d 154, 159-60 n.1 (Pa. Cmwlth. 2015)).
7
Section 1926 of the SCA specifies: “No statute shall be construed to be retroactive unless
clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S. § 1926.
8
Section 15.71 of the Legislative Reference Bureau’s Regulations provides:
(a) Use. If a statute is to apply retroactively, it is necessary to include
a provision to achieve this effect. The [SCA] (1 Pa.C.S. § 1926)
provides that no statute shall be construed to be retroactive unless
clearly and manifestly so intended by the General Assembly.
(b) Form. A retroactive provision may be in substantially the
following form:
“This act shall take effect immediately and shall be retroactive to
January 1, 1973.”
101 Pa. Code § 15.71.
4
otherwise agreed to, the employe shall be required to
submit to a medical examination which shall be
requested by the insurer within [60] days upon the
expiration of the [104] 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 . . . pursuant to the [6th
Edition AMA Guides].
(2) If such determination results in an impairment
rating that meets a threshold impairment rating that is
equal to or greater than [35%] impairment under the
[6th Edition AMA Guides], the employe shall be
presumed to be totally disabled and shall continue to
receive total disability compensation benefits . . . . If
such determination results in an impairment rating
less than [35%] impairment under the [6th Edition
AMA Guides], the employe shall then receive partial
disability benefits . . . : Provided, however, That no
reduction shall be made until [60] days’ notice of
modification is given.
(3) Unless otherwise adjudicated or agreed to based upon
a determination of earning power . . . , the amount of
compensation shall not be affected as a result of the
change in disability status and shall remain the same. An
insurer or employe may, at any time prior to or during the
[500]-week period of partial disability, show that the
employe’s earning power has changed.
(4) An employe may appeal the change to partial disability
at any time during the [500]-week period of partial
disability[:] Provided, That there is a determination that
the employe meets the threshold impairment rating that is
equal to or greater than [35%] impairment under the [6th
Edition AMA Guides].
(5) Total disability shall continue until it is adjudicated or
agreed . . . that total disability has ceased or the employe’s
condition improves to an impairment rating that is less
than [35%] of the degree of impairment defined under the
[6th Edition AMA Guides].
(6) Upon request of the insurer, the employe shall submit
to an independent medical examination in accordance with
the provisions of [S]ection 314 [of the Act] to determine
5
the status of impairment: Provided, however, That for
purposes of this clause, the employe shall not be required
to submit to more than [2] independent medical
examinations under this clause during a [12]-month
period.
(7) In no event shall the total number of weeks of partial
disability exceed [500] weeks for any injury or recurrence
thereof, regardless of the changes in status in disability
that may occur. In no event shall the total number of
weeks of total disability exceed [104] weeks for any
employe who does not meet a threshold impairment rating
that is equal to or greater than [35%] impairment under the
[6th Edition AMA Guides], for any injury or recurrence
thereof.
77 P.S. § 511.3 (emphasis added).
Act 111 also added Section 3 to the Act, which provides, in relevant
part:
(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 [A]ct, an
insurer shall be given credit for weeks of total disability
compensation paid prior to the effective date of this
paragraph. This [S]ection shall not be construed to alter
the requirements of [S]ection 306(a.3) of the [A]ct.
(2) For the purposes of determining the total number of
weeks of partial disability compensation payable under
[S]ection 306(a.3)(7) of the [A]ct, an insurer shall be
given credit for weeks of partial disability
compensation paid prior to the effective date of this
paragraph.
Act 111, § 3(1), (2) (emphasis added).
Moreover,
[t]his Court previously considered and rejected similar
[retroactivity] contentions in Pierson v. Workers’
Compensation Appeal Board (Consol Pennsylvania Coal
6
Co. [LLC]), 252 A.3d 1169 (Pa. Cmwlth.[])[, appeal
denied, 261 A.3d 378 (Pa. 2021)]. There, . . . the claimant
suggested that applying Act 111 to injuries predating its
enactment would impair his vested rights. Id. at 1175-76.
In rejecting the claimant’s vested rights argument, this
Court explained:
While [the c]laimant, here, argues that he has a
[vested] right to benefits as calculated at the time
of injury, there are reasonable expectations under
the . . . 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.
As this Court opined in Rose Corporation [v.
Workers’ Compensation Appeal Board (Espada),
238 A.3d 551 (Pa. Cmwlth. 2020)], the General
Assembly made it clear in Act 111 that weeks of
[temporary total disability] 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.
....
In Rose Corporation, we also added: “Through 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.
[A]s we made clear in Rose Corporation, the 104-
week and credit provisions of Act 111 were
explicitly given retroactive effect by the clear
language used by the General Assembly.
7
[The c]laimant, herein, argues that the General
Assembly . . . did not explicitly express an intent
to apply the provisions of Act 111 in any sort of a
retroactive fashion. . . . Further, we believe it is
clear that the General Assembly intended for the
104-week and credit weeks provisions of Act 111
to be given retroactive effect, where, as we noted
in Rose Corporation, it stated in plain language it
was doing so.
Id. at 1180 (citation omitted). Our analysis in Pierson is
directly applicable and controlling here.
Hutchinson v. Annville Twp. (Workers’ Comp. Appeal Bd.), 260 A.3d 360, 366-67
(Pa. Cmwlth. 2021), appeal denied, 279 A.3d 1180 (Pa. 2022) (footnote omitted).
Accordingly, Claimant’s argument that the WCJ erred in determining that Act 111
can be applied to injuries that occurred before its October 24, 2018 effective date,
lacks merit.
Claimant next argues that the WCJ erred in determining that Act 111 is
not an unconstitutional delegation of legislative authority. Claimant specifically
contends that “[m]erely replacing the phrase ‘most recent edition’ of the AMA
Guides with [the 6th Edition AMA Guides] d[id] nothing to address the Supreme
Court’s admonition that ‘the General Assembly may delegate regulatory power to
responsible governmental agencies,’ but not to private persons[.][] Protz [II], 161
A.3d at 837[.]” Claimant Br. at 8. Rather, “[l]ike its predecessor, Act 111 still
constrains an evaluating physician to follow the methodology that the AMA has
developed . . . .” Claimant Br. at 9.
In Hutchinson,
[the c]laimant [also] assert[ed] that Act 111 is
unconstitutional because its provision for IREs pursuant to
the [6th Edition AMA Guides] improperly delegates
legislative authority to the AMA, a private entity. This
Court has previously rejected this argument and has
expressly held that Act 111 d[oes] not constitute an
improper delegation of legislative authority. [See Pa.]
8
AFL-CIO [v. Commonwealth], 219 A.3d [219 (Pa.
Cmwlth. 2019), aff’d per curiam (Pa. No. 88 MAP 2019,
filed Aug. 18, 2020)]; see also Rose Corp. . . . (by
specifying the edition of the [AMA] Guides to be applied
in performing IREs, the legislature cured the
unconstitutional delegation that arose from the former
language providing for application of the most recent
edition). [The c]laimant’s assertion to the contrary is
without merit. As we explained in AFL-CIO, although the
legislature may not delegate the future enactment of
standards, it may adopt as its own an existing set of
standards, and doing so in Act 111 d[oes] not
unconstitutionally delegate its legislative authority.[FN]9
AFL-CIO, 219 A.3d at 314-15 (quoting Protz II, 161 A.3d
at 838-39, and citing Pennsylvanians Against Gambling
Expansion Fund, Inc. v. Commonwealth, . . . 877 A.2d
383, 418 ([Pa.] 2005)).
[FN]9
The flaw in former Section 306(a.2) [of the
Act] 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 [AMA] Guides, it allowed the
AMA to alter the standards at will without any
legislative oversight.
Hutchinson, 260 A.3d at 366 (italics omitted). Accordingly, Claimant’s argument
that the WCJ erred in determining that Act 111 is not an unconstitutional delegation
of legislative authority also lacks merit.
Lastly, Claimant argues that the WCJ erred by finding that Dr. Pande’s
report and testimony provided a sufficient evidentiary foundation for the findings of
fact necessary to grant Employer’s Modification Petition. Specifically, Claimant
asserts:
Dr. Pande never established an opinion that Claimant was
at maximum medical improvement for the expanded
injury as defined by the [S]tipulation. Rather, he merely
testified that the [S]tipulation did not alter his existing
opinion, which was that Claimant had reached maximum
medical improvement for a lumbar strain. Employer
presented no further evidence that Claimant had achieved
9
maximum medical improvement for his expanded injury,
as defined in the parties’ [S]tipulation. Because there was
no evidence, testimonial or otherwise, in the record that
Claimant was at maximum medical improvement for the
expanded injury definition, []the WCJ[’s] finding to that
effect lacks foundation for a prerequisite to changing an
injured worker’s status via an IRE and should be reversed.
Claimant Br. at 10-11.
Dr. Pande testified:
[Claimant’s Counsel:] . . . [F]ollowing your review of the
additional records, . . . what conditions and diagnoses are
fairly attributable to Claimant’s August 28, 2013 work
injury? . . .
[Dr. Pande:] The answer would be consistent with newly
available materials. And that included exacerbation of
pre-existing L5-S1 disc herniation and L4-L5 disc
herniation, as well as the sprain/strain injury.
[Claimant’s Counsel:] And did you have an opportunity to
utilize those additional diagnoses in conjunction with your
prior history that you took from [] Claimant, that prior
physical examination that you performed, and an updated
whole person impairment rating based upon the [6th
Edition AMA Guides]?
[Dr. Pande:] Yes.
[Claimant’s Counsel:] And what was that score for the
whole person impairment?
[Dr. Pande:] This was revised for an updated impairment
--- whole person impairment rating of 17[%].
[Claimant’s Counsel:] Okay. And just to confirm, when
you had an opportunity to review those additional records
and expand your opinion regarding the work[-]related
diagnoses [sic]. Did that change your opinion that
Claimant was at maximum medical improvement?
[Dr. Pande:] No. [Claimant] had stated . . . that he had
undergone a variety of treatments, including nearly five
years of therapy, multiple injections and chronic use of
10
medication, just keeping the pain at bay. He himself had
stated he plateaued two years prior to the [IRE] date.
R.R. at 154a-155a.
On cross-examination, Dr. Pande further stated:
[Employer’s Counsel:] How did you determine that
[Claimant] had reached maximum medical improvement?
[Dr. Pande:] Well, from the [6th Edition AMA Guides],
you can achieve [maximum medical improvement] with or
without treatment. In [Claimant’s] case, he did --- did
have multiple treatments . . . however, his pain has not
resolved. He’s [sic] continued to have axial related pain
in the back. So that tells me that while there was partial
improvement of his complaints[,] he never resolved. So
he was qualified for maximum medical improvement.
What sealed the deal was the fact that he said that he
stopped improving about two years prior to the [IRE] . . . .
At that point, he was [sic] basically leveled off and he
continued to take medications. Now [] that states to me
that he is at maximal medical improvement.
R.R. at 160a-161a. Employer did not present any contrary testimony.
The law is well established:
The WCJ is the fact[-]finder, and it is solely for the
WCJ . . . to assess credibility and to resolve conflicts in the
evidence. Neither the Board nor this Court may reweigh
the evidence or the WCJ’s credibility determinations. In
addition, it is solely for the WCJ, as the fact[-]finder, to
determine what weight to give to any evidence. . . . As
such, the WCJ may reject the testimony of any witness in
whole or in part, even if that testimony is uncontradicted.
W. Penn Allegheny Health Sys. v. Workers’ Comp. Appeal Bd. (Cochenour), 251
A.3d 467, 475 (Pa. Cmwlth. 2021) (quoting Hawbaker v. Workers’ Comp. Appeal
Bd. (Kriner’s Quality Roofing Servs.), 159 A.3d 61, 69 (Pa. Cmwlth. 2017) (internal
citations, quotations, and brackets omitted)).
11
Here, based on Dr. Pande’s testimony, the WCJ stated in Finding of
Fact (FOF) 6.i: “Dr. Pande concluded that Claimant remains at maximum medical
improvement with regard to these additional diagnoses. However, taking into
account these additional diagnoses, Dr. Pande opined that Claimant’s whole person
impairment rating now would be 17%.” WCJ Dec. at 4 (R.R. at 18a). In FOF 7, the
WCJ further found:
After consideration of the record as a whole, this [WCJ]
finds that the testimony of Dr. Pande that Claimant is at
[m]aximum [m]edical [i]mprovement and has a whole
person impairment rating of 17% is credible, competent
and persuasive. In support of this determination, this
[WCJ] has considered both his direct and cross-
examination [testimony] and notes the following: (a) [h]is
testimony is based upon the [6th Edition AMA Guides];
(b) Dr. Pande is a well-qualified physiatrist and has an
active clinical practice of at least twenty hours per week;
(c) his conclusions were based upon Claimant’s reported
history, medical records, diagnostic imaging studies, and
a thorough physical examination; (d) his answers
evidenced in depth knowledge of the AMA Guides; (e) he
answered all questions posed to h[im] unequivocally; and
(f) his testimony was uncontroverted by any other medical
opinion.
Id. Dr. Pande’s testimony clearly provided the substantial evidence necessary to
support the WCJ’s findings and the WCJ’s resultant conclusion to grant the
Modification Petition.
Based on the foregoing, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Julius J. Cobbs, III, :
Petitioner :
:
v. :
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), : No. 476 C.D. 2022
Respondent :
ORDER
AND NOW, this 9th day of January, 2023, the Workers’ Compensation
Appeal Board’s April 20, 2022 order is affirmed.
_________________________________
ANNE E. COVEY, Judge