R. Zaborowski v. City of Philadelphia (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robin Zaborowski, :
Petitioner :
:
v. : No. 617 C.D. 2022
: Submitted: December 30, 2022
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: March 28, 2023
Robin Zaborowski (Claimant) petitions for review of a May 27, 2022 Order
of the Workers’ Compensation Appeal Board (Board) that affirmed the December
8, 2021 Decision of a Workers’ Compensation Judge (WCJ), granting the
Modification Petition filed by the City of Philadelphia (Employer) and modifying
Claimant’s disability status from total temporary disability to partial disability based
upon an impairment rating evaluation (IRE) performed under Section 306(a.3) of the
Workers’ Compensation Act (WC Act),1 which was added by Section 1 of the Act
of October 24, 2018, P.L. 714, No. 111 (Act 111). Claimant raises two issues on
appeal: (1) whether applying Act 111 to a claim such as hers, where the injury
occurred before Act 111’s effective date, would divest Claimant of a vested, property
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.3.
right in violation of the right to due course of law under the Remedies Clause of
article I, section 11 of the Pennsylvania Constitution, Pa. Const. art. I, § 11,2 and (2)
whether Act 111 constitutes an unconstitutional delegation of legislative authority.
As the Court has previously rejected both arguments on numerous occasions, we
affirm the Board’s Order.
The instant matter raises purely legal issues, and the pertinent facts are not in
dispute. On September 17, 2012, Claimant suffered a work-related injury in the
course and scope of her employment with Employer. Employer issued a Notice of
Compensation Payable, accepting the work injury as a left ankle sprain. On February
2, 2020, Employer requested Claimant undergo an IRE, which she did on January
21, 2021. Lynn Yang, M.D. performed the IRE and determined Claimant had
reached maximum medical improvement and had a whole-person impairment rating
of 14% using the American Medical Association’s Guides to the Evaluation of
Permanent Impairment, sixth edition, second printing (Guides). Thereafter,
Employer filed a Modification Petition, seeking to have Claimant’s benefits changed
from temporary total disability (TTD) to temporary partial disability (TPD) based
upon the IRE.
Before the WCJ, Employer submitted the deposition testimony of Dr. Yang,
which detailed the IRE and her opinions. Claimant did not offer any medical
evidence to challenge the impairment rating and, instead, argued the IRE was
unconstitutional.
2
The Remedies Clause provides, in relevant part:
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. . . .
Pa. Const. art. I, § 11.
2
Other than noting Claimant preserved the constitutional argument, the WCJ
did not address Claimant’s argument. The WCJ credited Dr. Yang’s uncontroverted
opinion. Concluding Employer satisfied its burden, the WCJ granted the
Modification Petition and modified Claimant’s status from TTD to TPD as of
January 21, 2021, the date of the IRE. (WCJ’s Order.)
Claimant appealed to the Board, arguing that application of Act 111 to her
was unconstitutional, as Claimant’s work injury occurred before its enactment. The
Board stated its jurisdiction does not encompass constitutional issues, but “where
Pennsylvania’s appellate courts have addressed constitutional challenges to Act 111,
it is proper for the Board to apply those holdings.” (Board Op. at 3.) Citing Pierson
v. Workers’ Compensation Appeal Board (Consol Pennsylvania Coal Company
LLC), 252 A.3d 1169 (Pa. Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021), and
Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth. 2019), aff’d,
(Pa., No. 88 MAP 2019, filed Aug. 18, 2020), the Board concluded “that the
consensus was that Act 111 is not unconstitutional on its face” and that applying Act
111 to a claimant who suffered a work injury before its enactment did not violate the
claimant’s vested rights. (Board Op. at 3.) Accordingly, the Board, concluding this
Court has rejected similar arguments, likewise rejected Claimant’s arguments and
affirmed the WCJ’s Decision.
Thereafter, Claimant filed a timely Petition for Review, asserting that
applying Act 111 to a claimant like herself whose work injury predates Act 111’s
effective date, violates the Remedies Clause, and that Act 111 constitutes an
unlawful delegation of legislative authority.3 Claimant argues Act 111 is a
3
Our review is limited to determining whether constitutional rights were violated, whether
errors of law were committed, or whether necessary findings of fact are supported by substantial
(Footnote continued on next page…)
3
substantive amendment to the WC Act since it limits a claimant’s partial disability
benefits to 500 weeks, and, before Act 111, claimants could receive benefits for their
lifetime. As a result, Claimant argues Act 111 cannot be applied retroactively to an
injury that predates its enactment without violating the Remedies Clause. Claimant
distinguishes Bible v. Department of Labor and Industry, 696 A.2d 1149 (Pa. 1997),
in which the Pennsylvania Supreme Court held retroactive application of another
provision of the WC Act did not violate the Constitution, asserting there, the rights
had not yet been adjudicated, whereas here, they are vested. Claimant asserts
“‘[c]laimants have a vested right in the continuation of workers[’] compensation
benefits until found to be ineligible,’” (Claimant’s Brief at 26 (quoting Giant Eagle
Inc. v. Workers’ Compensation Appeal Board (Weigand)), 764 A.2d 663, 666 (Pa.
Cmwlth. 2000)), which cannot be divested without violating the Constitution.
Although Claimant recognizes that the Court rejected a constitutional attack on Act
111 in Pierson, Claimant nonetheless asks this Court to reconsider that decision.
Claimant also argues Act 111 is an unlawful delegation of legislative authority and
therefore unconstitutional on that basis as well.
Employer responds that there is no vested right in the continuation of workers’
compensation benefits, which can be modified at any time through the WC Act.
Employer also argues that this Court, on a number of occasions, has already rejected
the same arguments Claimant posits now.
Because the history of modification of a claimant’s benefits through the use
of the IRE process has been the subject of numerous opinions, it is not necessary to
undergo an in-depth analysis here, but a brief overview is helpful. For approximately
evidence. Universal Am-Can, Ltd. v. Workers’ Comp. Appeal Bd. (Minteer), 762 A.2d 328, 331
n.2 (Pa. 2000).
4
two decades, former Section 306(a.2) of the WC Act, formerly 77 P.S. § 511.2,4
provided the means of modifying a claimant’s benefits based on an IRE until it was
struck down as an unconstitutional delegation of legislative authority in Protz v.
Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827(Pa. 2017). Subsequently, the General Assembly enacted Act 111.5 In addition to
setting forth the procedure for IREs, Section 3 of Act 111 also provides that an
employer/insurer is entitled to credit for the weeks of TTD or TPD paid prior to Act
111’s effective date, which was October 24, 2018. This provision has prompted
litigation by claimants and employers alike since its enactment.
A number of claimants have raised the constitutionality of Act 111 on the
same bases that Claimant does here. In Pierson, the claimant underwent an IRE and
had his disability status modified to partial after the enactment of Act 111. The
claimant in Pierson argued Act 111 was a substantive, not a procedural change in
the law and, thus, could not be applied retroactively without violating his vested
right in benefits as secured by the Remedies Clause. This Court rejected those
arguments, holding that the claimant’s “‘vested rights’ have not been abrogated by
Act 111,” 252 A.3d at 1180, because “there are reasonable expectations under the
Act that benefits may change,” id. at 1179. We explained that Act 111 did not
automatically strip a claimant of any rights; rather, Act 111 provided employers with
a mechanism to modify a claimant’s disability status from total to partial. Id.
4
Former Section 306(a.2) was added by Section 4 of the Act of June 24, 1996, P.L. 350,
formerly 77 P.S. § 511.2, repealed by Act 111.
5
Act 111 differs from its predecessor in a few regards. First, it specifies that IREs are to
be performed using the sixth edition, second printing April 2009 version of the Guides, instead of
“the most recent edition of the . . . Guides,” as the former IRE provision did. Compare 77 P.S.
§ 511.3, with former 77 P.S. § 511.2. Second, a claimant is now presumed to be totally disabled
if their impairment rating is greater than or equal to 35%, whereas under the former IRE provision,
the threshold was 50%. Compare 77 P.S. § 511.3(2), with former 77 P.S. § 511.2(2).
5
Despite numerous invitations from claimants to revisit our holding in Pierson,
we have declined to do so. See, e.g., DiPaolo v. UPMC Magee Women’s Hosp.
(Workers’ Comp. Appeal Bd.), 278 A.3d 430, 435 (Pa. Cmwlth. 2022), appeal
denied (Pa., No. 191 WAL 2022, filed Jan. 3, 2023); Yuille v. City of Phila.
(Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 490 C.D. 2022, filed Jan. 31, 2023),
slip op. at 7-8; City of Pittsburgh v. Dobbs (Workers’ Comp. Appeal Bd.) (Pa.
Cmwlth., No. 1431 C.D. 2021, filed Jan. 27, 2023), slip op. at 9-10, application for
reargument filed Feb. 8. 2023; Harold v. Abate Irwin, Inc. (Workers’ Comp. Appeal
Bd.) (Pa. Cmwlth., No. 879 C.D. 2021, filed June 13, 2022), slip op. at 7-8, appeal
denied (Pa., No. 192 WAL 2022, filed Jan. 3, 2023); Hazzouri v. Pa. Tpk. Comm’n
(Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 889 C.D. 2021, filed Apr. 28,
2022), slip op. at 7-8, appeal denied (Pa., No. 223 MAL 2022, filed Nov. 22, 2022);
Bundschuh v. Gwynedd Veterinary Hosp., Inc. (Workers’ Comp. Appeal Bd.) (Pa.
Cmwlth., No. 556 C.D. 2021, filed Apr. 11, 2022), slip op. at 7-8, appeal denied
(Pa., No. 184 MAL 2022, filed Sept. 7, 2022); Sochko v. Nat’l Express Transit Serv.
(Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 490 C.D. 2021, filed Mar. 16,
2022), slip op. at 9-10, 13; 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 5-7, appeal denied (Pa., No. 127 MAL 2022, filed Aug. 23, 2022);
Sobol v. Select Med. Corp. (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 799
C.D. 2021, filed May 18, 2022), slip op. at 4-5; Tufano v. Tammy L. Clause, P.C.
(Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 803 C.D. 2021, filed May 13,
2022), slip op. at 9, appeal denied (Pa., No. 254 MAL 2022, filed Nov. 21, 2022);
Dohn v. Beck N’ Call (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 103 C.D.
2021, filed Sept. 20, 2021), slip op. at 9-10, appeal denied (Pa., No. 575 MAL 2021,
6
filed Mar. 14, 2022).6 Claimant, here, proffers no new reason to reexamine Pierson.
Therefore, “[b]ecause our analysis in Pierson is directly applicable and controlling
here, we reject Claimant’s constitutional challenges to Act 111.” Hender-Moody,
slip op. at 7.
Claimant’s second argument, that Act 111 constitutes an unconstitutional
delegation of legislative authority, has likewise been previously decided. In
Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth. 2019), the
Court held Act 111 was not an unconstitutional delegation of legislative authority
like the previous IRE provision.
Because the issues raised herein are controlled by this Court’s precedent, we
affirm the Board’s Order.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
6
Unreported panel decisions of this Court may be cited for their persuasive value pursuant
to Rule 126(b)(1) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 126(b)(1), and
Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robin Zaborowski, :
Petitioner :
:
v. : No. 617 C.D. 2022
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
NOW, March 28, 2023, the Order of the Workers’ Compensation Appeal
Board, dated May 27, 2022, is AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge