J. Ellwood v. Pocono Med. Ctr. & PMA Mgmt. Corp. (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeanie Ellwood, :
Petitioner :
:
v. :
:
Pocono Medical Center and :
PMA Management Corp. :
(Workers’ Compensation :
Appeal Board), : No. 796 C.D. 2021
Respondents : Submitted: August 12, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: November 29, 2022
Jeanie Ellwood (Claimant) petitions this Court for a review of the
Workers’ Compensation (WC) Appeal Board’s (Board) June 25, 2021 order
affirming the WC Judge’s (WCJ) decision that modified Claimant’s WC benefit
status from total to partial disability as of April 10, 2019, based on an impairment
rating evaluation (IRE). Claimant presents two issues for this Court’s review: (1)
whether Act 1111 can be constitutionally applied to workers whose injuries occurred
1
Act of October 24, 2018, P.L. 714, No. 111 (Act 111). Act 111 repealed the
unconstitutional IRE provision and replaced it with a new IRE provision, Section 306(a.3) of the
WC Act, Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of Act 111, 77 P.S. §
511.3, that was virtually identical and effective immediately. Act 111 specifically incorporated
and adopted the use of the American Medical Association’s “Guides to the Evaluation of
Permanent Impairment,” 6th edition (second printing April 2009), for performing IREs.
before October 24, 2018, the effective date of Act 111; and (2) whether Act 111
contains sufficiently specific language to make the law retroactive. After review,
this Court affirms.
On March 17, 2009, while in the course of her employment with
Pocono Medical Center (Employer), Claimant sustained a work-related L5-S1 disc
injury with lumbar radiculopathy that required surgery. On April 10, 2019, Claimant
underwent an IRE, provided for in Section 306(a.3) of the WC Act (Act),2 which
resulted in a whole person impairment rating of 13%. On April 25, 2019, Employer
filed a Modification Petition, seeking to modify Claimant’s disability status from
total to partial based upon the IRE results. On October 26, 2020, the WCJ granted
the Modification Petition, modifying Claimant’s disability status from total to partial
as of April 10, 2019. Claimant appealed to the Board. On June 25, 2021, the Board
affirmed the WCJ’s decision. Claimant appealed to this Court.3
Initially, 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
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 [American
Medical Association (AMA) ‘Guides,’] 6th edition
(second printing April 2009).
2
Section 306(a.2) of the Act, formerly 77 P.S. § 511.2, added by the Act of June 24, 1996,
P.L. 350, was repealed by Act 111, and replaced by Section 306(a.3) of the Act.
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.” Pierson v. Workers’ Comp. Appeal Bd. (Consol Pa. Coal Co. LLC), 252 A.3d
1169, 1172 n.3 (Pa. Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021).
2
(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
[AMA ‘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 . . . . If such determination
results in an impairment rating less than [35%]
impairment under the [AMA ‘Guides,’] 6th edition
(second printing April 2009), 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
[AMA ‘Guides,’] 6th edition (second printing April 2009).
(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
[AMA ‘Guides,’] 6th edition (second printing April 2009).
(6) Upon request of the insurer, the employe shall submit
to an [IRE] in accordance with the provisions of [S]ection
314 [of the Act] to determine the status of impairment:
Provided, however, That for purposes of this clause, the
employe shall not be required to submit to more than [2]
[IREs] 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
3
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
[AMA ‘Guides,’] 6th edition ([second printing April
2009]), for any injury or recurrence thereof.
77 P.S. § 511.3 (emphasis added).
Section 3 of Act 111 further 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 section 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).
Claimant first argues that Act 111 cannot be constitutionally applied to
Claimant’s injury, which occurred prior to its passage, and cannot be relied upon to
limit her WC benefits, because the Pennsylvania Supreme Court declared in Protz
v. Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d
827 (Pa. 2017) (Protz II), that former Section 306(a)(2) of the Act is
unconstitutional. However, this Court rejected a similar argument in Whitfield v.
Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC), 188
A.3d 599 (Pa. Cmwlth. 2018),4 wherein the claimant argued that pursuant to Protz
4
Whitfield was decided on June 6, 2018. The Whitfield Court held that the proper date for
modification based on an unconstitutional IRE is the date the reinstatement petition is filed.
4
II, she was entitled to have her total disability status reinstated as of the time of her
unconstitutional IRE. The Whitfield Court explained:
Simply because Protz II is being applied to a case that
arose from a work injury and a change in disability status
that predates it does not mean it operates retroactively.
Warren v. Folk, 886 A.2d 305, 308 (Pa. Super. 2005). It
would be retroactive if it related back and gave a prior
transaction a legal effect different from that which it had
under the law in effect at the time. Id. This decision does
not alter [the c]laimant’s past status. Rather, it gives
effect to the [c]laimant’s status as it existed at the time she
filed her reinstatement petition, which was filed within the
statutory timeframe for filing such petitions.
Whitfield, 188 A.3d at 617. “Act 111 simply provide[s] 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 v.
Workers’ Comp. Appeal Bd. (Consol Pa. Coal Co. LLC), 252 A.3d 1169, 1179 (Pa.
Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021).
Claimant adds that Act 111’s retroactive application violates article I,
section 11 of the Pennsylvania Constitution, known as the Remedies Clause.5
Specifically, Claimant asserts that applying Act 111 in that manner deprives her of
her vested right to ongoing WC benefits.
5
Article I, section 11 of the Pennsylvania Constitution declares:
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. Suits may be brought against the Commonwealth in such
manner, in such courts and in such cases as the Legislature may by
law direct.
PA. CONST. art. I, § 11.
5
However, the Pennsylvania Supreme Court
limited the scope of the protection to vested rights: ‘It must
be something more than a mere expectation, based upon
an anticipated continuance of existing law. It must have
become a title, legal or equitable, to the present or future
enforcement of a demand, or a legal exemption from a
demand made by another.’
Konidaris v. Portnoff Law Assocs., Ltd., 953 A.2d 1231, 1242 (Pa. 2008) (quoting
Lewis v. Pa. R.R. Co., 69 A. 821, 823 (Pa. 1908)); see also George v. City of Phila.
(Workers’ Comp. Appeal Bd.) (Pa. Cmwlth. No. 23 C.D. 2022, filed Oct. 11, 2022);
Jaskulski v. Workers’ Comp. Appeal Bd. (Weis Mkts. Inc.) (Pa. Cmwlth. No. 797
C.D. 2021, filed Apr. 13, 2022); Stoshick v. Air Prods. & Chems., Inc. (Workers’
Comp. Appeal Bd.) (Pa. Cmwlth. No. 27 C.D. 2021, filed Feb. 3, 2022), appeal
denied, (Pa. No. 90 MAL 2022, filed Aug. 8, 2022).6
Section 413(a) of the Act provides that “[a] [WCJ] . . . may, at any time,
modify, reinstate, suspend, or terminate [WC benefits] . . . upon petition filed by
either party . . . , upon proof that the disability of an injured employe has increased,
decreased, recurred, or has temporarily or finally ceased . . . [;]” thus, there are no
vested rights in WC benefits. 77 P.S. § 772; see also Whitfield. Because this Court
has previously ruled that a WC claimant does not have a vested right to ongoing
temporary total disability benefits that Act 111 violates, Claimant’s argument to the
contrary is unfounded.
Claimant next asserts that Act 111 does not contain sufficiently specific
language to make the law retroactive. In Rose Corporation v. Workers’
6
Unreported decisions of this Court issued after January 15, 2008, may be cited as
persuasive authority pursuant to Section 414(a) of this Court’s Internal Operating Procedures. 210
Pa. Code § 69.414(a). The unreported decisions cited herein are relied on for their persuasive
authority.
6
Compensation Appeal Board (Espada), 238 A.3d 551 (Pa. Cmwlth. 2020), this Court
explained:
The plain language of Section 3 [of Act 111] establishes a
mechanism by which employers/insurers may receive
credit for weeks of compensation previously paid. First,
Section 3(1) [of Act 111] 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 . . . . Therefore, pursuant to Section 3(1) [of
Act 111], 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.” In short,
any week of partial disability previously paid will count
towards the 500-week cap on such benefits.
Accordingly, 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) [of the Act] to their
detriment by not pursuing other methods of a modification
should not bear the entire burden of the provision being
declared unconstitutional. 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. However, for the benefit of claimants, the
General Assembly also 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. That the General
Assembly used specific language to give retroactive effect
7
to these carefully selected individual provisions does not
make the entirety of Act 111 retroactive as the amendment
lacks clear language to that effect.
Rose Corp., 238 A.3d at 561-62 (citations and footnote omitted).
While it is true that Section 306(a.3) [of the Act]
essentially reenacted the IRE provisions, importantly,
Section 306(a.3) [of the Act] did not take effect until it
was enacted on October 24, 2018. Therefore, until that
time, [an e]mployer could not utilize an IRE to change
[a c]laimant’s disability status, even if the IRE otherwise
complied with the later enacted requirements of Section
306(a.3)(1) [of the Act,] because no law permitted
[an e]mployer to utilize an IRE process until Act 111 was
enacted. There is no provision in Act 111 which
specifically or implicitly provides for an IRE performed
prior to Section 306(a.3) [of the Act]’s enactment to be
validated afterward. Arguably, this would undermine the
invalidation of IREs by the [Pennsylvania] Supreme Court
in Protz II, whereas the approach set forth herein gives
effect to the statutory language while upholding the
legislative balance of claimants’ and employers’/insurers’
interests in light of Protz II and Act 111.
Rose Corp., 238 A.3d at 563-64 (footnote omitted).
“[A]s [this Court] 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.” Pierson, 252 A.3d at 1180; see also
Hender-Moody v. Am. Heritage Fed. Credit Union (Workers’ Comp. Appeal Bd.)
(Pa. Cmwlth. No. 166 C.D. 2021, filed Feb. 15, 2022), slip op. at 7 (“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).” “Because our analysis in Pierson is directly applicable
and controlling here, we reject [the c]laimant’s constitutional challenges to Act
111.”); George, slip op. at 15 (“Based on this Court’s previous rulings that Act 111
is constitutional and applicable to injuries occurring prior to October 24, 2018, the
8
Board properly upheld the WCJ’s decision granting the [m]odification [p]etition
effective as of the . . . IRE date.”). Accordingly, Claimant’s argument that Act 111
does not contain sufficiently specific language to make the law retroactive lacks
merit.
For all of the above reasons, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeanie Ellwood, :
Petitioner :
:
v. :
:
Pocono Medical Center and :
PMA Management Corp. :
(Workers’ Compensation :
Appeal Board), : No. 796 C.D. 2021
Respondents :
ORDER
AND NOW, this 29th day of November, 2022, the Workers’
Compensation Appeal Board’s June 25, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge