M. Grimes v. City of Philadelphia (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michelle Grimes, :
Petitioner :
:
v. :
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), : No. 790 C.D. 2022
Respondent : Submitted: February 24, 2023
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: April 26, 2023
Michelle Grimes (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) June 29, 2022 order
affirming the WC Judge’s (WCJ) decision that granted the City of Philadelphia’s
(Employer) Petition to Modify WC Benefits (Modification Petition). Claimant
presents three issues for this Court’s review: (1) whether the Board erred by
affirming the WCJ’s conclusion that Act 1111 does not unconstitutionally violate
Claimant’s vested right to be free from the Impairment Rating Evaluation (IRE)
process provided for in Section 306(a.3) of the WC Act (Act);2 (2) whether the Board
1
Act of October 24, 2018, P.L. 714, No. 111 (Act 111). Act 111 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 Impairment Rating
Evaluations.
2
Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of Act 111, 77 P.S. §
511.3. Act 111 repealed Section 306(a.2) of the Act, added by the Act of June 24, 1996, P.L. 350,
formerly 77 P.S. § 511.2, and replaced it with Section 306(a.3) of the Act after the Pennsylvania
erred by affirming the WCJ’s conclusion that Act 111 can be applied to injuries that
occurred before its October 24, 2018 effective date; and (3) whether the Board erred
by affirming the WCJ’s conclusion that Act 111 is not an unlawful delegation of
legislative authority.3 After review, this Court affirms.
On February 28, 2011, Claimant sustained a work-related injury to the
lower part of her right leg while in the course of her employment with Employer.
Employer issued an updated Notice of Compensation Payable accepting Claimant’s
injury as a right tibula/fibular fracture and paid her temporary total disability (TTD)
benefits.
On June 20, 2017, the Pennsylvania Supreme Court decided Protz v.
Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827(Pa. 2017) (Protz II), wherein it declared that Section 306(a.2) of the Act delegated
the General Assembly lawmaking authority to the American Medical Association
(AMA) in violation of article II, section 1 of the Pennsylvania Constitution, 4 and
struck the provision from the Act in its entirety.
On June 8, 2021, Claimant underwent an IRE conducted by Christopher
Belletieri, M.D. (Dr. Belletieri), in which Dr. Belletieri opined that Claimant had
reached maximum medical improvement with regard to her work injury, and she had
Supreme Court declared Section 306(a.2) of the Act unconstitutional. See Protz v. Workers’
Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827 (Pa. 2017). Section 306(a.3) of the Act
is virtually identical to Section 306(a.2) of the Act and was immediately effective.
3
Claimant presents her issues in terms of whether the Board erred, without reference to
the WCJ’s decision. However, this Court’s “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). Therefore, the issues have been restated in terms of whether the Board erred by affirming
the WCJ’s conclusions.
4
Article II, section 1 of the Pennsylvania Constitution specifies: “The legislative power of
this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a
House of Representatives.” PA. CONST. art. II, § 1.
2
a whole-person impairment rating of 8%, based on the AMA’s “Guides to the
Evaluation of Permanent Impairment,” 6th edition (second printing April 2009) (6th
Edition AMA Guides).
On July 21, 2021, Employer filed the Modification Petition seeking to
change Claimant’s disability status from total to partial based upon the June 8, 2021
IRE results. The WCJ conducted hearings on August 9 and November 4, 2021. On
February 18, 2022, the WCJ granted the Modification Petition. On June 29, 2022,
the Board affirmed the WCJ’s decision. Claimant appealed to this Court.5
Initially, Section 306(a.3) of the Act 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 [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.
5
See supra note 3. Moreover, “[a]s with any challenge to the constitutionality of a statutory
amendment, our scope of review is plenary and our standard of review is de novo.” Konidaris v.
Portnoff Law Assocs., Ltd., 953 A.2d 1231, 1239 (Pa. 2008).
3
(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 [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
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).
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
4
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 the Board erred by affirming the WCJ’s
conclusion that Act 111 does not unconstitutionally violate Claimant’s vested right
to be free from the IRE process provided for in Section 306(a.3) of the Act.
In Pierson v. Workers’ Compensation Appeal Board (Consol
Pennsylvania Coal Co. LLC), 252 A.3d 1169 (Pa. Cmwlth.), appeal denied, 261
A.3d 378 (Pa. 2021), the claimant similarly argued “that the General Assembly
cannot take away his ‘vested rights[.]’” Id. at 1180. Relying on Whitfield v.
Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC), 188
A.3d 599 (Pa. Cmwlth. 2018) (en banc), the Pierson Court described that, although
a WC claimant has a “certain right to benefits until such time as he is found to be
ineligible for them[,]” Section 413(a) of the Act creates a “reasonable expectation[]
under the Act that benefits may change.” Pierson, 252 A.3d at 1179. The Pierson
Court stated:
[C]laimants, 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.
5
Id.
Following our decision in Pierson, this Court has
consistently held that Act 111 does not abrogate or
substantially impair a claimant’s vested rights in [WC]
benefits because there is no right to ongoing TTD status.
See, e.g., Hutchinson v. Annville Twp. (Workers’ Comp.
Appeal Bd.), 260 A.3d 360, 367 (Pa. Cmwlth. 2021)[,
appeal denied, (Pa. No. 489 MAL 2021, filed June 7,
2022)] (relying on Pierson to dismiss claimant’s
constitutional claims against Act 111).
DiPaolo v. UPMC Magee Women’s Hosp. (Workers’ Comp. Appeal Bd.), 278 A.3d
430, 435 (Pa. Cmwlth. 2022); see also Harold v. Abate Irwin, Inc. (Workers’ Comp.
Appeal Bd.) (Pa. Cmwlth. No. 879 C.D. 2021, filed June 13, 2022), appeal denied,
(Pa. No. 192 WAL 2022, filed Jan. 3, 2023).6 Moreover, because the purpose of the
Remedies Clause is to ensure that “a vested right is not eliminated by subsequent
legislation[,]” Dana Holding Corp. v. Workers’ Compensation Appeal Board
(Smuck), 195 A.3d 635, 644 (Pa. Cmwlth. 2018) (en banc), aff’d, 232 A.3d 629 (Pa.
2020); see also Konidaris v. Portnoff Law Associates, Ltd., 953 A.2d 1231 (Pa.
2008), where a claimant does not have a vested right in WC benefits, the Remedies
Clause does not apply. See Jaskulski v. Workers’ Comp. Appeal Bd. (Weis Markets
Inc.) (Pa. Cmwlth. No. 797 C.D. 2021, filed Apr. 13, 2022), appeal denied, (Pa. No.
201 MAL 2022, filed Oct. 4, 2022); see also 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). Because this Court has
previously ruled that a WC claimant does not have a vested right to ongoing TTD
benefits that Act 111 violates, Claimant’s argument to the contrary is unfounded.
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 cited for their persuasive value.
6
Next, Claimant contends that the Board erred by affirming the WCJ’s
conclusion that Act 111 can be applied to injuries that occurred before its October
24, 2018 effective date.
This Court previously considered and rejected similar
[retroactivity] contentions in Pierson . . . . 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 [TTD] 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
[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 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.
7
[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.
[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, 260 A.3d at 366-67 (footnote omitted). Accordingly, Claimant’s
argument that the WCJ erred by determining that Act 111 can be applied to injuries
that occurred before its October 24, 2018 effective date lacks merit.
Lastly, Claimant asserts that the Board erred by affirming the WCJ’s
conclusion that Act 111 is not an unlawful delegation of legislative authority.
However, 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.]
AFL-CIO [v. Commonwealth], 219 A.3d [219,] 314-15
[(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
8
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 [6th Edition 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 by not concluding that Act 111 is an unconstitutional delegation
of legislative authority also lacks merit.
Because the WCJ properly determined, based on precedent, that Act
111 does not unconstitutionally violate Claimant’s vested rights, can be applied to
injuries that occurred before its October 24, 2018 effective date, and is not an
unlawful delegation of legislative authority, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michelle Grimes, :
Petitioner :
:
v. :
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), : No. 790 C.D. 2022
Respondent :
ORDER
AND NOW, this 26th day of April, 2023, the Workers’ Compensation
Appeal Board’s June 29, 2022 order is affirmed.
_________________________________
ANNE E. COVEY, Judge