J. Pierson, Jr. v. WCAB (Consol PA Coal Co. LLC) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Johnny Pierson, Jr., :
Petitioner :
:
v. : No. 423 C.D. 2020
: Submitted: October 23, 2020
Workers’ Compensation Appeal :
Board (Consol Pennsylvania :
Coal Company LLC), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: February 9, 2021
Johnny Pierson, Jr. (Claimant) petitions for review of the April 2, 2020
Opinion and Order (Order) of the Workers’ Compensation Appeal Board (Board),
affirming the November 8, 2019 Decision and Order of the Workers’ Compensation
Judge (WCJ), which granted the Petition to Modify Compensation Benefits
(Modification Petition) filed by Consol Pennsylvania Coal Company LLC
(Employer). In addition, Claimant requests that this Court grant his Application for
Argument Before En Banc Panel (Application), filed on October 28, 2020, asserting
that “this case presents issues of great public importance” and “will have a
significant impact on the success or failure of many [w]orker[s’] [c]ompensation[]
claimant[s’] cases,” with a constitutional impact on the workers’ compensation
impairment rating evaluation (IRE) process provided in the Pennsylvania Workers’
Compensation Act (Act).1 Application, 10/28/2020, at 1-2. For the reasons that
follow, we deny Claimant’s Application and affirm the Board’s Order.
I. WCJ’s Decision and Order
On August 13, 2014, Claimant sustained a work-related injury in the
nature of a “labral tear of the right shoulder,” after he tripped while unloading pipe.
The injury was recognized by Employer via a Notice of Compensation Payable
(NCP). WCJ’s Decision and Order, 11/8/2019, Finding of Fact (FOF) No. 1.
On December 21, 2018, Employer filed the Modification Petition,
alleging that Claimant’s benefits should be modified from temporary total disability
(TTD) to partial disability, effective December 19, 2018, based on an IRE performed
by Dr. Jeffrey Moldovan, D.O., on that date. FOF No. 2.
The WCJ found that Dr. Moldovan is trained and certified in the
performance of IREs pursuant to the Sixth Edition of the American Medical
Association (AMA) Guides to the Evaluation of Permanent Impairment (Guides).
FOF No. 4.a. Dr. Moldovan determined that Claimant had a whole body impairment
rating of three percent based on the Sixth Edition of the Guides. FOF No. 4.e. The
WCJ accepted Dr. Moldovan’s testimony as credible and determined that Claimant
had reached maximum medical improvement and had a whole body permanent
impairment of three percent as of December 19, 2018. FOF No. 7.
The WCJ concluded that Employer met its burden and modified
Claimant’s benefits from total disability to partial disability based on the results of
the IRE. WCJ’s Decision and Order, 11/8/2019, Conclusion of Law (COL) No. 1.
The WCJ further concluded that Claimant had preserved various constitutional
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
2
arguments (relative to IREs and Section 306(a.3) of the Workers’ Compensation
Act, Act 111),2 which were beyond his jurisdiction to decide. COL No. 2. Thus, the
WCJ did not address those arguments. Id.
Claimant appealed to the Board, arguing that the WCJ should not have
credited Dr. Moldovan and should have given his medical opinion no weight because
he is board certified in emergency medicine but is not an expert in orthopedics and
is not a board-certified orthopedic surgeon. Claimant also raised the same
constitutional issues he had raised before the WCJ.
II. Board’s Opinion
On April 2, 2020, the Board issued its Order affirming the WCJ. In its
Opinion, the Board determined that Dr. Moldovan testified that he is an expert in
orthopedics and that the WCJ was within his prerogative as the sole arbiter of
credibility and the weight to be assigned to the evidence. Thus, the WCJ’s
determination in this regard could not be disturbed on appeal. Reproduced Record
(R.R.) at 166a.
The Board stated that “appellate review by the Board does not include
constitutional issues.” Id. (citing Ligonier Tavern v. Workers’ Comp. Appeal Bd.
(Walker), 714 A.2d 1008 (Pa. 1998)). The Board added that “Claimant’s arguments
in this regard are preserved for any further appeal but are beyond this Board’s
appellate review and we will not address them further.” R.R. at 167a. Accordingly,
2
Act of June 2, 1915, P.L. 736, as amended. Act 111 was added to the Act by the Act of
October 24, 2018, P.L. 714, No. 111 (Act 111), 77 P.S. §511.3.
3
the Board affirmed the WCJ’s Decision and Order granting Employer’s
Modification Petition. R.R. at 168a. Claimant now petitions this Court for review.3
III. Applicable Law and Timeline
Before we address the arguments raised by the parties herein, it is
valuable to provide a brief timeline and overview of some of the recent, prominent
case law and statutory developments in workers’ compensation matters that are
pertinent to the arguments made in the present case.
On September 18, 2015, 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). In Protz I, we considered whether Section 306(a.2) of the Act4
was an unconstitutional delegation of legislative authority pursuant to article II,
section 1 of the Pennsylvania Constitution,5 in that it gave the AMA the authority to
establish the criteria under which a claimant would be adjudicated partially or totally
disabled. In our decision, we held that Section 306(a.2) of the Act constituted an
unconstitutional delegation of legislative authority insofar as it prospectively
approved versions of the Guides beyond the Fourth Edition without review. As a
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 Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa.
2013). “Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” City of Phila. v. Workers’ Comp. Appeal Bd. (Kriebel), 29
A.3d 762, 769 (Pa. 2011).
4
Section 306(a.2), formerly 77 P.S. §511.2, was repealed by the Act of October 24, 2018,
P.L. 714, and replaced by Section 306(a.3).
5
Pa. Const. art. II, §1 states: “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
remedy in Protz I, we remanded to the Board to remand to the assigned WCJ to
apply the Fourth Edition of the Guides, which was the version of the Guides in effect
at the time the IRE provisions were enacted.
For context, we note here, again, that Claimant in the present matter
was injured on August 13, 2014, which was approximately one year prior to our
decision in Protz I.
On June 20, 2017, nearly two years after our opinion in Protz I, our
Supreme Court, in Protz II, addressed the issue of the constitutionality of former
Section 306(a.2) of the Act. In Protz II, our Supreme Court held that the General
Assembly unconstitutionally delegated its lawmaking authority in violation of the
non-delegation doctrine of article II, section 1 of the Pennsylvania Constitution.
Based on this determination, the Court struck former Section 306(a.2), in its entirety,
from the Act. Former Section 306(a.2) of the Act read, in pertinent part:
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 [AMA 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 clause (b) . . . .
Former 77 P.S. §511.2 (emphasis added).
5
Subsequently, the General Assembly passed Act 111, which became
effective on October 24, 2018. Act 111 replaced former Section 306(a.2) of the Act
with new Section 306(a.3). Section 306(a.3) of the Act reads in pertinent part:
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 [AMA
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
. . . 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 clause (b) . . . .
77 P.S. §511.3 (emphasis added).
We note here that Section 3(2) of Act 111 states: “For the purposes of
determining the total number of weeks of partial disability compensation payable
under Section 306(a.3)(7) of the Act, an insurer shall be given credit for weeks of
partial disability compensation paid prior to the effective date of this paragraph.” 77
P.S. §511.3, Historical and Statutory Notes.
IV. Arguments
A. Claimant’s Arguments
In the matter before us, Claimant reiterates his argument that Dr.
Moldovan’s opinion should be accorded no weight because he is not accredited in
orthopedic care and that while, as an emergency room doctor, he may “dabble in
orthopedics from time to time,” it does not mean he is an expert in orthopedics.
Citing IA Construction Corporation v. Workers’ Compensation Appeal Board
6
(Rhodes), 139 A.3d 154, 164 (Pa. 2016), Claimant asserts that “[a] workers’
compensation judge may validly accord lesser weight to an out-of-specialty opinion
regarding the degree of impairment associated with an injury.” Claimant’s Br. at 12.
Thus, Claimant argues, Dr. Moldovan’s IRE determination is not credible.
Claimant’s Br. at 12-13.
In addition, Claimant argues that Act 111 is unconstitutional “on its
face,” and that it cannot be “constitutionally applied in a retroactive manner, and
thus it [can] only be applied to claims that have originated on or after the date of the
passage of the present IRE mechanism, October 24, 2018.” Claimant’s Br. at 8-9.
As a result, “Claimant propose[s] that the present IRE mechanism [can] only be
constitutionally implemented by an employer at the conclusion of [the] 104th week
from the date of [a] work-related injury sustained on [or after] October 24, 2018.”
Claimant’s Br. at 9. In addition, Claimant argues that his IRE is invalid because it
occurred before he had received 104 weeks of TTD after the enactment of Act 111.
Claimant’s Br. at 28.
Claimant states:
On June 20, 2017, [our] Supreme Court declared the IRE section,
Section 306(a.2) [of the Act], unconstitutional in its entirety, and thus
eliminated the IRE mechanism . . . . But, on October 24, 2018, the
Pennsylvania General Assembly passed Act 111, replacing [former
Section] 306(a.2) [of the Act] with [Section] 306(a.3), to revive the IRE
mechanism. More importantly, as a result of [Protz II], the law at the
time of an injury before Act 111 did not constitutionally provide for the
mechanism of an IRE. Since [Protz II] rendered the IRE mechanism
unconstitutional in its entirety, [our] Supreme Court impliedly admitted
that IREs . . . never should have been permissible, dating back to 1996.
Claimant’s Br. at 13.
7
Claimant adds that, “[f]or an IRE to apply to a claimant, a claimant first
must have received TTD for 104 weeks. If a claimant has not received TTD for 104
weeks, an IRE cannot take effect.” Claimant’s Br. at 14. Claimant further argues:
[Act 111] allows an employer to receive credit for weeks that have been
paid prior to Act 111 to meet the aforementioned 104-week
prerequisite. In that regard, an employer is credited for weeks of TTD
governed by prior law that never even considered using weeks of
compensation as credits toward effecting a mechanism to cut a
claimant’s benefits short. Thus, when an IRE is applied to a claimant
that has received at least one week of TTD before Act 111, and the IRE
determines the claimant to be less than 35% impaired, the claimant’s
TTD is necessarily cut short by at least one week.
Claimant’s Br. at 15. Claimant further argues that Act 111 “unduly interferes with
the number of weeks that [he] can receive benefits, calculated at the time of injury.”
Claimant’s Br. at 16.
Claimant acknowledges that legislation which only affects procedure
may be applied retroactively. However, here, Claimant argues that the change in the
law was substantive in that it imposed “new legal burdens on past transactions,” thus
it cannot be construed to apply retroactively. Claimant’s Br. at 18. Claimant asserts
that substantive rights include a claimant’s right to workers’ compensation benefits
as well as the right of an employer to obtain a modification of a claimant’s benefits
and that “a substantive right attaches to the initial calculation of the compensation
rate for claimants.” Id. (citing Keystone Coal Mining Corp. v. Workmen’s Comp.
Appeal Bd. (Wolfe), 673 A.2d 418 (Pa. Cmwlth. 1996)). Citing Pittsburgh Steelers
Sports, Inc. v. Workers’ Compensation Appeal Board (Williams), 814 A.2d 788 (Pa.
Cmwlth. 2002), Claimant notes that this Court “declared that the law in effect at the
8
time of injury not only determined the method of calculation benefits, but also
determined the calculation of credits against those benefits.” Claimant’s Br. at 19.
Claimant adds the provisions of Act 111, at issue here, “violate vested
rights specifically secured by due process and the Remedies Clause of the
Pennsylvania Constitution.”6 Claimant’s Br. at 22. In addition, Claimant states that,
in City of Warren v. Workers’ Compensation Appeal Board (Haines), 156 A.3d 371,
376 (Pa. Cmwlth. 2017), this Court “reiterated the general premise that ‘statutes are
to be construed to operate prospectively, absent clear language to the contrary.’”
Claimant’s Br. at 23. Claimant argues that “Act 111 does not contain such form
necessary to have retroactive effect.”7 Claimant’s Br. at 24.
Further, Claimant contends that
[s]ince [our] Supreme Court decided that the IRE had been
unconstitutional in its entirety in Protz II, the former IRE mechanism
never should have applied to Claimant’s calculation of compensation
in any event. That is to say, the law that Claimant filed his claim under
never constitutionally provided for an IRE. Accordingly, Claimant
never should have had to factor into his calculation of his weeks of
compensation the possibility that his benefits could be cut short by an
unconstitutional IRE. As such, the IRE provided by Act 111 provides
6
Pa. Const. art. I, §11.
7
The Pennsylvania Association for Justice (Association) filed an Amicus Curiae Brief
(Brief) in support of Claimant’s argument, asserting that “[b]ecause Act 111 changed how
disability benefits are determined, and limited many injured workers to receiving no more than
500 weeks of future benefits, it is a substantive amendment to the [Act] that may only apply
[prospectively]” and that “this Court must determine that the Act 111 IRE provisions apply only
to injuries suffered after October 24, 2018.” Association’s Br. at 4. The Association states that
our Supreme Court, in Protz II, “declared the IRE provision of the Act unconstitutional and void
from the date of its enactment.” Association’s Br. at 5. The Association argues that “[t]o [ ] allow
a change in benefits from total to partial on the basis of a statute passed after the date of injury and
the granting of the property right to continued indemnity benefits violates the due process and due
course of law rights of all injured workers to continuing unfettered indemnity benefits.”
Association’s Br. at 26.
9
for a mechanism that never existed when Claimant’s cause of action
accrued. In consequence, the Act 111 IRE [provision] interferes with
Claimant’s vested right to the calculation of his compensation that arose
on the date of injury and had correspondingly been paid to Claimant . .
..
Significantly, . . . the vested right to have benefits calculated at
the time of injury has not been repudiated by [our] Supreme Court to
this day.
Claimant’s Br. at 26-27.
B. Employer’s Arguments
Employer responds to Claimant’s argument about Dr. Moldovan’s
credentials by noting that Dr. Moldovan was approved by the Bureau of Workers’
Compensation as a qualified physician to perform IREs under the Act. Further,
Employer notes that the WCJ found Dr. Moldovan credible and accepted his
testimony and that those credibility determinations “are within the exclusive
province of the WCJ and cannot be disturbed on appeal.” Employer’s Br. at 6 (citing
Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043 (Pa. 2003);
Lehigh Cnty. Vo-Tech Sch. v. Workmen’s Comp. Appeal Bd. (Wolfe), 652 A.2d 797(Pa. 1995)). Although Employer acknowledges that a WCJ may give less weight to
an “out-of-specialty” opinion, it asserts that this was not the case in the present
matter. Employer’s Br. at 12. Employer points out that Claimant did not object to
Dr. Moldovan’s qualifications before he performed the IRE or during his testimony.
Further, Employer notes that there is no requirement in the Act that would
necessitate Dr. Moldovan to be board certified in orthopedics in order to perform an
IRE relative to same. Employer adds that Dr. Moldovan “considers himself to be an
expert in orthopedic care [due to] his long-term work in emergency medicine,” and
“Claimant did not refute that Dr. Moldovan does not ‘merely dabble’ in orthopedics
as Claimant now contends, but rather is an expert.” Employer’s Br. at 14.
10
In response to Claimant’s constitutional arguments, Employer asserts
that Act 111 reestablished the IRE process in Pennsylvania for modifying workers’
compensation benefits from TTD to partial disability and has already withstood a
constitutional challenge in Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306(Pa. Cmwlth. 2019). Employer adds that Act 111 has also withstood challenges to
the credit language of Section 3(1)8 as addressed in Rose Corporation v. Workers’
Compensation Appeal Board (Espada), 238 A.3d 551 (Pa. Cmwlth. 2020).
Employer notes that an administrative agency “has no jurisdiction to
determine the constitutional validity of its own enabling legislation” and that the
Board “cannot declare provisions of the Act to be unconstitutional.” Employer’s Br.
at 8 (citing Ruzin v. Dep’t of Lab. & Indus., Bureau of Workers’ Comp., 675 A.2d
366 (Pa. Cmwlth. 1996), and Ligonier Tavern). Thus, Employer asserts the WCJ
and the Board did not err by not addressing questions raised by Claimant relative to
the constitutionality of Act 111.
Employer asserts that Section 3(1) of Act 111 is clear in that it allows
an employer to seek an IRE after receiving 104 weeks of TTD and that an
insurer/employer will be given credit for any weeks of TTD it paid prior to the
effective date of the Act. Citing Rose Corporation, Employer notes that this Court
determined that an employer could seek a new IRE under Act 111 where a claimant
8
Section 3(1) of Act 111 reads:
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.
77 P.S. §511.3, Historical and Statutory Notes.
11
has already received 104 weeks of TTD under the previously existing law and that
the employer would be entitled to a credit for any weeks of partial disability it had
paid to the claimant after the claimant’s first IRE, which occurred prior to the
effective date of Act 111. Employer contends that the present matter is the same as
Rose Corporation, as Claimant, here, had already received 104 weeks of TTD prior
to the effective date of Act 111, and, thus, Employer was entitled to request an IRE
pursuant to Act 111.
Finally, Employer disagrees with Claimant’s argument that he has a
right to benefits as calculated at the time of injury, noting that there are always
reasonable expectations under the Act that benefits may change, “both in status and
in amount based on various remedies provided for in the Act.” Employer’s Br. at
16. Employer acknowledges that it is “generally accurate that a claimant retains
various rights to benefits until such time as he is found ineligible for said benefits .
. . . However, claimants haven’t automatically lost anything by reason of enactment
of Act 111. Rather, an employer can demonstrate an entitlement to change a
claimant’s benefit status by way of a qualifying IRE under the Act.” Id. “[Act 111]
specifically provides an [IRE] upon an employee’s receipt of 104 weeks of TTD
benefits. The resulting percentage of whole body impairment will dictate whether a
change in the employee’s disability status will change from total to partial or remain
the same.” Employer’s Br. at 16-17.
V. Discussion
Initially, we address Claimant’s argument that the Board erred by
affirming the WCJ’s acceptance of Dr. Moldovan’s testimony. In his testimony, Dr.
Moldovan stated that he is certified by the American Osteopathic College of
Emergency Medicine and that his active clinical practice is at least 20 hours per
12
week. R.R at 73a. He also confirmed that he is trained and certified to perform IREs
pursuant to the Sixth Edition of the Guides, including the second printing of same.
R.R. at 74a. Dr. Moldovan further confirmed that he is on a list of physicians
approved by the Bureau of Workers’ Compensation for performing IREs. R.R. at
76a. Dr. Moldovan acknowledged that he is not board certified as an orthopedic
surgeon. However, based on his experience as an emergency room physician, he
considers himself to be an expert in orthopedics, asserting that, as an emergency
room doctor, he needs to know all areas of medicine to some degree. R.R. at 82a-
83a. Further, Dr. Moldovan testified to performing a total of 939 IREs since 2004.
R.R. at 107a. As noted by Employer, Claimant did not object to Dr. Moldovan’s
credentials but, rather, objected only to the constitutionality of IREs generally. R.R.
at 84a.
Claimant never presented any evidence that Dr. Moldovan was
unqualified to perform his IRE, despite now raising such a claim. As the WCJ found
Dr. Moldovan credible and accepted his testimony, and such credibility
determinations “are within the exclusive province of the WCJ and cannot be
disturbed on appeal,” we see no basis for us to determine otherwise. See Employer’s
Br. at 6 (citing Daniels, 828 A.2d 1043; Lehigh Cnty. Vo-Tech Sch., 652 A.2d 797.
Employer acknowledged that a WCJ may give less weight to an “out-of-specialty”
opinion, as Claimant asserts, but there is no requirement that the WCJ do so, and he
did not do so here. See Employer’s Br. at 12. Again, this was a matter within the
WCJ’s discretion, and the Board properly recognized as much. Further, there is no
requirement in the Act that an IRE doctor be board certified in the area in which he
offers his opinion. Section 306(a.3) of the Act, put in place by Act 111, states in
part, only that in the case of an IRE:
13
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).
Section 306(a.3)(1) of the Act, 77 P.S. §511.3(1). Accordingly, we see no error in
the Board’s determination that the WCJ did not err when he accepted Dr.
Moldovan’s medical opinion as credible because it was his prerogative to do so as
“sole arbiter of credibility and weight to be assigned the evidence, and that
determination cannot be disturbed on appeal.” Board Op., 4/2/2020 at 4; R.R. at
166a.
We next address Claimant’s arguments relative to the constitutionality
of Act 111 and its application to Claimant in light of the fact Claimant’s injury
occurred in 2014, prior to both our Supreme Court’s determination in Protz II and
the passage of Act 111.
We recently opined on the constitutionality of Act 111 in Pennsylvania
AFL-CIO v. Commonwealth, 219 A.3d 306. In that case, we determined Act 111
was not an unconstitutional delegation of legislative authority, as the prior IRE
provision of the Act was determined to be. Specifically, we stated:
[t]he 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.” 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)
was enacted, “as its own.” 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
14
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.
Pa. AFL-CIO, 219 A.3d at 316 (quoting, in part, Protz II, 161 A.3d at 838) (emphasis
omitted). Our opinion in Pennsylvania AFL-CIO was affirmed by a brief per curiam
order of our Supreme Court, which read, in pertinent part, simply: “this 18th day of
August, 2020, the Order of the Commonwealth Court is [affirmed].” See Pa. AFL-
CIO v. Commonwealth (Pa., No. 88 MAP 2019, filed August 18, 2020). 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 Claimant’s assertion that Act 111 is unconstitutional “on its
face,” and the consensus was that it is not. See Claimant’s Br. at 8.
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 Claimant’s
contention that Protz II rendered former Section 306(a.2) of the Act void ab initio
when it was struck down as an unconstitutional delegation of legislative authority.
In Whitfield v. Workers’ Compensation Appeal Board (Tenet Health
System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018), we cited our 1980
opinion in Department of Labor and Industry, Bureau of Employment Security v.
Pennsylvania Engineering Corporation, 421 A.2d 521, 523 (Pa. Cmwlth. 1980),
noting: “[a] law is given retroactive effect when it is used to impose new legal
burdens on a past transaction or occurrence.” Whitfield, 188 A.3d at 616. We relied
on Warren v. Folk, 886 A.2d 305 (Pa. Super. 2005), to further explain when a law is
to be given retroactive effect. In Warren, 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
15
[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.”
Id. at 308. While Claimant, 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.
As this Court opined in Rose Corporation, the General Assembly made
it clear in 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
16
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 “[f]or the purposes of determining the total
number of weeks of partial disability compensation payable under
[S]ection 306(a.3)(7) of the [WC A]ct.” 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 Corp., 238 A.3d at 561-62.
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.
Claimant acknowledges that this Court opined, in City of Warren, that
statutes are construed “to operate prospectively absent clear language to the
contrary,” but he also asserts that “Act 111 does not contain such form necessary to
have retroactive effect.” Claimant’s Br. at 23-24 (citing City of Warren, 156 A.3d
at 376). However, as 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.
Claimant, 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. See Claimant’s Br. at 26-
27. As we noted above, Claimant’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,
17
Claimant 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.
VI. Application for Argument Before En Banc Panel
Upon consideration of the arguments of the parties and the facts and
relevant law at issue, and in accordance with our Discussion above, we are able to
form our opinion in this matter without the necessity of any further elucidation that
may be provided through oral argument. Thus, Claimant’s Application for
Argument before an en banc panel of this Court is denied.
VII. Conclusion
For all of the foregoing reasons, we affirm the Order of the Board, and
deny Claimant’s Application for Argument Before En Banc Panel.
______________________________
J. ANDREW CROMPTON, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Johnny Pierson, Jr., :
Petitioner :
:
v. : No. 423 C.D. 2020
:
Workers' Compensation Appeal :
Board (Consol Pennsylvania :
Coal Company LLC), :
Respondent :
ORDER
AND NOW, this 9th day of February 2021, the April 2, 2020 Order of
the Workers’ Compensation Appeal Board is AFFIRMED. Petitioner’s
Application for Argument Before En Banc Panel is DENIED.
______________________________
J. ANDREW CROMPTON, Judge