S. Corsaro v. Com. of PA & Inservco Ins. Svcs., Inc. (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sherri Corsaro, :
Petitioner :
: No. 1008 C.D. 2021
v. :
: Submitted: February 11, 2022
Commonwealth of Pennsylvania and :
Inservco Insurance Services, Inc. :
(Workers’ Compensation Appeal :
Board), :
Respondents :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: November 2, 2022
Sherri Corsaro (Claimant) petitions for review of the August 25, 2021
Opinion and Order (Order) of the Workers’ Compensation Appeal Board (Board). The
Board affirmed the January 14, 2021 Decision and Order of the Workers’
Compensation Judge (WCJ), which granted the Commonwealth of Pennsylvania’s
(Employer) Petition to Modify Claimant’s Compensation Benefits (Petition to
Modify). The WCJ converted Claimant’s wage loss benefits from total disability to
partial disability based on an Impairment Rating Evaluation (IRE) performed pursuant
to Section 306(a.3) of the Pennsylvania Workers’ Compensation Act (Act).1 Claimant
lodged constitutional objections to Section 306(a.3) before the WCJ and the Board,
1
Act of June 2, 1915, P.L. 736, as amended. Section 306(a.3) was added to the Act by the
Act of October 24, 2018, P.L. 714, No. 111 (Act 111), 77 P.S. § 511.3.
both of which overruled the objections. In her Petition to this Court, Claimant lodges
the same objections for our consideration. Upon review, we affirm the Board’s
decision.
I. BACKGROUND AND PROCEDURAL HISTORY
WCJ Decision and Order
On February 16, 2015, Claimant was injured during the course and scope
of her employment when she slipped and fell on icy pavement and injured her lower
back and hips and lacerated her left knee. (WCJ Decision and Order, 11/14/21, Findings
of Fact (FOF) No. 1; Reproduced Record (R.R.) at 026.) Claimant and Employer
entered into a Supplemental Agreement in which Employer accepted liability for
Claimant’s work injury. Id. Soon thereafter, Claimant began receiving weekly
temporary total disability (TTD) benefits. Id.
On August 6, 2020, Employer filed a Petition to Modify, asserting that
Claimant’s benefits should be converted from TTD to partial disability based upon an
IRE performed by Jeffrey Moldovan, D.O., on July 7, 2020. (FOF No. 2; R.R. at 026.)
The WCJ found that Employer had proven that Claimant had a whole-body impairment
of zero percent under the American Medical Association (AMA) Guides to the
Evaluation of Permanent Impairment, Sixth Edition, Second Printing (Guides). (FOF
No. 5; R.R. at 027.) Claimant offered no medical evidence to the contrary. Instead,
her counsel raised constitutional challenges to Section 306(a.3). Id. The WCJ
concluded that he did not have jurisdiction to consider Claimant’s constitutional
challenges, but nevertheless noted that they were preserved for appeal. Id. The WCJ
modified Claimant’s benefits to partial disability effective July 7, 2020. (WCJ
Decision and Order, 1/14/21, Conclusions of Law (COL) No. 3 and Order; R.R. 028-
29.) Claimant then appealed to the Board.
2
Board’s Opinion
On August 25, 2021, the Board issued its Order affirming the WCJ.
Before the Board, Claimant argued that the retroactive application of the IRE process
contained in Section 306(a.3) to an injury that occurred before Act 111’s effective date
is unconstitutional. (R.R. at 038.) Claimant argued that such retroactive application
curtails her vested right to compensation in violation of the Remedies Clause of the
Pennsylvania Constitution.2 Id. The Board concluded that it, like the WCJ, has no
jurisdiction to determine the constitutional validity of its own enabling legislation. Id.
at 039. The Board nevertheless concluded that Claimant’s challenges to the
constitutionality of Act 111 have been addressed and rejected by this Court in
Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth. 2019), Rose
Corporation v. Workers’ Compensation Appeal Board (Espada), 238 A.3d 551 (Pa.
Cmwlth. 2020), and Pierson v. Workers’ Compensation Appeal Board (Consol
Pennsylvania Coal Co.), 252 A.3d 1169 (Pa. Cmwlth. 2021). The Board accordingly
affirmed the WCJ’s determination. Id. at 039-43. Claimant now petitions this Court
for review.3
2
Pa. Const. art. I, §11 (“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.”).
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. Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), 81 A.3d 830, 838
(Pa. 2013). “Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” City of Philadelphia v. Workers’ Compensation Appeal Board
(Kriebel), 29 A.3d 762, 769 (Pa. 2011).
3
II. DISCUSSION
On September 18, 2015, approximately seven months after Claimant’s
injury, this Court issued its decision in Protz v. Workers’ Compensation Appeal Board
(Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015) (Protz I), aff’d in part
and rev’d in part, 161 A.3d 827 (Pa. 2017) (Protz II), declaring former Section 306(a.2)
of the Act4 void in its entirety. In Protz II, the Pennsylvania Supreme Court held that
the General Assembly, in authorizing the application of future versions of the Guides
without review, had unconstitutionally delegated its lawmaking authority in violation
of the non-delegation doctrine of the Pennsylvania Constitution.5 161 A.3d at 840-841.
The Court invalidated Section 306(a.2) in its entirety.
4
Section 306(a.2), added by the Act of June 24, 1996, P.L. 350, formerly 77 P.S. § 511.2, was
repealed by Act 111 and replaced by Section 306(a.3). Section 306(a.2) provided, in pertinent part,
as follows:
(1) When an employe has received total disability compensation pursuant
to clause (a) for a period of one hundred four weeks . . . the employe shall
be required to submit to a medical examination . . . 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 most recent edition of the [Guides] . . . (2) If such
determination results in an impairment rating that meets a threshold
impairment rating that is equal to or greater than fifty per centum . . . 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 fifty per centum impairment . . .
the employe shall then receive partial disability benefits under class (b) . . .
.
Former 77 P.S. § 511.2.
5
Pa. Const. art. II, § 1 (“The legislative power of this Commonwealth shall be vested in a
General Assembly, which shall consist of a Senate and a House of Representatives.”).
4
On October 24, 2018, in response to Protz II, the General Assembly
passed Act 111, which replaced former Section 306(a.2) of the Act with Section
306(a.3). Section 306(a.3) reads in relevant part:
(1) When an employe has received total disability compensation
pursuant to clause (a) for a period of one hundred four weeks . .
. the employe shall be required to submit to a medical
examination . . . 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 most recent edition of the [Guides].
(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 . . ., 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 thirty-five per centum impairment . .
., the employe shall then receive partial disability benefits under
class (b) . . . .
77 P.S. § 511.3. Section 3 of Act 111 further provides, in pertinent part, as follows:
(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
section 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 section shall not be
construed to alter the requirements of section 306(a.3) of the
[A]ct.
(2) For the purposes of determining the total number of weeks
of partial disability compensation payable under section
306(a.3)(7) of the [A]ct, an insurer shall be given credit for
5
weeks of partial disability compensation paid prior to the
effective date of this paragraph.
77 P.S. § 511.3, Historical and Statutory Notes.
In Pierson, the claimant sustained a work-related injury on August 13,
2014. The employer acknowledged the injury via a Notice of Compensation Payable
(NCP), and the claimant received TTD benefits. 252 A.3d at 1171. On December 21,
2018, the employer filed a modification petition pursuant to newly enacted Section
306(a.3) seeking to change the claimant’s benefits from TTD to partial disability based
on an IRE performed on December 19, 2018. Id. at 1172. The claimant lodged
constitutional challenges to Section 306(a.3) before both the WCJ and the Board, both
of which declined to address the challenges. Id. at 1171-72.6 On appeal to this Court,
the claimant argued that (1) Section 306(a.3) is unconstitutional “on its face,” and (2)
Section 306(a.3) cannot be applied retroactively to claims that originated (i.e., have an
injury date) prior to October 24, 2018, the effective date of the new IRE mechanism.
Id. at 1174. The claimant further argued that Act 111 involved a change in substantive
law, that Protz II invalidated any IRE mechanism that could apply to his claim, and
that the application of Act 111 to his claim retroactively violated “vested rights
specifically secured by due process and the Remedies Clause of the Pennsylvania
Constitution.” Id. at 1175.
We rejected the claimant’s arguments, relying chiefly on our prior
decisions in Pennsylvania AFL-CIO and Rose Corporation. Because our analysis in
Pierson is controlling here, we quote it at length:
In [Pennsylvania AFL-CIO], we determined [that] Act 111 was
not an unconstitutional delegation of legislative authority, as the
prior IRE provision of the Act was determined to be. . . . Our
opinion in Pennsylvania AFL-CIO was affirmed by a brief per
6
The claimant in Pierson also challenged the credibility of the physician performing the
subject IRE, an issue not before us in this appeal.
6
curiam order of our Supreme Court. . . . Although we
acknowledge that the determination in Pennsylvania AFL-CIO
was relative to whether Act 111 was an unconstitutional
delegation of legislative authority, it was nevertheless a test of
[the] [ ] assertion that Act 111 is unconstitutional “on its face,”
and the consensus was that it is not. . . .
In addition, and in regard to the issue of the retroactive
application of the 104-week and credit provisions of Act 111, we
first address [the] [ ] contention that Protz II rendered former
Section 306(a.2) of the Act void ab initio . . . .
In [Warren v. Folk, 886 A.2d 305, 308 (Pa. Super. 2005)], the
Pennsylvania Superior Court explained that it, and our Supreme
Court, had considered the issue of retroactivity in terms of
whether the statute in question affects vested rights and
determined that
[w]here no vested right or contractual obligation is
involved, an act is not retroactively construed when
applied to a condition existing on its effective date
even though the condition results from events prior
to that date. . . . A “vested right” is one that “so
completely and definitely belongs to a person that it
cannot be impaired or taken away without the
person’s consent.” [(citations omitted).]
While [the] [c]laimant, here, argues that he has a 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 TTD
benefits.
7
As this Court opined in Rose Corporation, the General Assembly
made it clear in [Section 3 of] Act 111 that weeks of 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. In Rose Corporation, we said, in
reference to Act 111:
The plain language of Section 3 establishes a
mechanism by which employers/insurers may
receive credit for weeks of compensation previously
paid. First, Section 3(1) provides that an
employer/insurer “shall be given credit for weeks of
total disability compensation paid prior to the
effective date of this paragraph” for purposes of
determining whether the 104 weeks of total
disability had been paid. 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. 77 P.S. § 511.3(1); former
77 P.S. § 511.2(1). See Section 3(1) of Act 111.
Therefore, pursuant to Section 3(1), an
employer/insurer will receive credit towards this
104 weeks for any weeks of total disability benefits
that were previously paid prior to Act 111’s
enactment. Second, an employer/insurer will be
given credit for any weeks of partial disability
compensation paid prior to enactment of Act 111
“for the purposes of determining the total number of
weeks of partial disability compensation payable
under Section 306(a.3)(7) of the [ ] Act.” Section
3(2) of Act 111. In short, any weeks of partial
disability previously paid will count towards the
500-week cap on such benefits.
[Rose Corporation], 238 A.3d at 561-62. [W]e 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.” [Id.] at 562.
8
....
[The] [c]laimant, herein [ ] argues that the General Assembly
cannot take away his “vested rights” and that it did not explicitly
express an intent to apply the provisions of Act 111 in any sort
of a retroactive fashion. As we noted above, [the] [c]laimant’s
“vested rights” have not been abrogated by Act 111. 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. Thus, “[the c]laimant
does not prevail in his arguments relative to the constitutionality
of Act 111, and we see no reason to disturb the Board’s Order
affirming the WCJ.
Pierson, 252 A.3d at 1178-80.
Claimant here argued before the WCJ and Board, and now argues to this
Court, that the retroactive application of Act 111 to her case is contrary to the Remedies
Clause of the Pennsylvania Constitution. She further argues that the Pennsylvania
Supreme Court consistently has declined to retroactively apply substantive laws that
alter a vested right, remedy, or accrued cause of action. (Pet’r’s Brief at 11, 13-14.)
Accordingly, citing Protz II, Claimant contends that the Pennsylvania Supreme Court’s
invalidation of former Section 306(a.2) eliminated the mechanism in place at the time
of her injury for the re-evaluation of benefits by the performance of an IRE. Thus,
according to Claimant, application here of the new IRE mechanism in Act 111 would
be unconstitutional. Employer correctly notes, and we conclude, that all of the above
arguments regarding Act 111’s constitutionality were raised in, and thoroughly rejected
by, this Court in Pierson, which we continue to conclude was correctly decided.
9
III. CONCLUSION
Claimant does not otherwise challenge the qualifications of Dr. Moldovan
or the finding that her impairment rating is well below the 35% whole-body impairment
threshold. Nor does Claimant argue that the WCJ or Board erred in any respect other
than applying Act 111 to her case. Accordingly, because Pierson squarely forecloses
Claimant’s arguments here, we will affirm the Board’s determination.
________________________________
PATRICIA A. McCULLOUGH, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sherri Corsaro, :
Petitioner :
:
v. :
: No. 1008 C.D. 2021
Commonwealth of Pennsylvania and :
Inservco Insurance Services, Inc. :
(Workers’ Compensation Appeal :
Board), :
Respondents :
ORDER
AND NOW, this 2nd day of November, 2022, the August 25, 2021
order of the Workers’ Compensation Appeal Board is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge