T. Brown v. City of Philadelphia (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Terry Brown, :
Petitioner :
: No. 154 C.D. 2022
v. :
: Submitted: July 15, 2022
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, President Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: July 26, 2023
Terry Brown (Claimant) seeks review of the January 26, 2022 order of the
Workers’ Compensation Appeal Board (WCAB), which affirmed the May 18, 2021
decision and order of the Workers’ Compensation Judge (WCJ). The WCJ granted the
City of Philadelphia’s (Employer) Modification Petition and modified Claimant’s
benefits from temporary total disability (TTD) to partial disability status as of June 4,
2020. Upon review, we affirm the WCAB’s order.
I. FACTS AND PROCEDURAL HISTORY
On June 10, 2011, Claimant suffered an injury during the course and scope
of her employment with Employer when she fell and hit her right arm on a step. Her
injury was acknowledged as a status post subacromial decompression of the right arm,
right rib area and cervical contusion and sprain/strain. For this injury, she received
weekly TTD benefits in the amount of $815.33 per week. (Reproduced Record (R.R.)
at 13a.)
On June 4, 2020, Christopher Belletieri, D.O. conducted an Impairment
Rating Evaluation (IRE) pursuant to Act 111 of 2018 (Act 111), which added Section
306(a.3) to the Pennsylvania Workers’ Compensation Act (Act).1 In his report Dr.
Belletieri concluded that Claimant had a whole person impairment rating of 30%, based
upon the American Medical Association Guides to the Evaluation of Permanent
Impairment, Sixth Edition, Second Printing (AMA Guides).2 Id.
On July 22, 2020, Employer filed a Modification Petition in which it asked
that Claimant’s benefit status be modified from TTD to partial disability. Id. at 5a-7a.
After a hearing, WCJ Erin Young issued a decision on May 18, 2021, in which she
granted Employer’s Petition and modified benefits to partial as of June 4, 2020. Id. at
11a-16a. Claimant filed an appeal to the WCAB, and by opinion and order dated
January 26, 2022, it affirmed the WCJ’s decision. Id. at. 25a-35a. On February 24,
2022, Claimant timely filed a Petition for Review with this Court. Id. at 125a-29a.
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.
2
Act 111 requires that a physician use the AMA Guides when performing an IRE and allows
for modification to partial disability status if a claimant has a whole-person impairment of less than
35%.
2
II. DISCUSSION3
A. Constitutionality of Act 111
Claimant argues on appeal that the WCJ erred in granting Employer’s
Modification Petition because retroactive application of Act 111 is unconstitutional.
Specifically, she asserts that her work injury pre-dates the retroactive effect and
application of Act 111 and her IRE was conducted prior to the expiration of 104 weeks
after its effective date, which infringes on her vested rights in violation of various
provisions of the United States Constitution.4 The WCAB addressed this issue and
concluded that Claimant’s challenge to the constitutionality of Act 111 has 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) (en banc), and Pierson v. Workers’
Compensation Appeal Board (Consol Pennsylvania Coal Co. LLC), 252 A.3d 1169(Pa. Cmwlth. 2021), appeal denied, 261 A.3d 378 (Pa. 2021). The WCAB summarized
the relevant cases and analyzed Claimant’s issue, in relevant part, as follows:
Section 306(a.3) of the Act, which was added by Act 111, provides
that once a claimant receives 104 weeks of total disability benefits,
the insurer or employer may require the claimant to submit to an
IRE. 77 P.S. §511.3(1). Section 306(a.3)(7) sets the limit on the
number of weeks of total disability at 104 weeks, and partial
3
This Court’s review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, constitutional rights were violated, or error of law were committed.
Borough of Heidelberg v. Workers’ Compensation Appeal Board (Selva), 928 A.2d 1006, 1009 (Pa.
2006). Whether the issue presented involves a question of law, our standard of review is de novo and
our scope of review is plenary. Id.4
Claimant argues violations of the Due Process Clause in the Fifth and Fourteenth
Amendments, U.S. Const. Amends. V, XIV, and various provisions of the Pennsylvania Constitution
including the Ex Post Facto Clause in article I, Section 17, Pa. Const. art. 1, § 17; the Due Process
Clause in article I, section 1, Pa. Const. art. 1, § 1; and the Due Course/Remedies Clause in article I,
section 11, Pa. Const. art. 1, § 11.
3
disability at 500 weeks for a claimant who does not have an
impairment rating of at least 35 [%]. 77 P.S. §511.3(7). With
respect to the implementation of Section 306(a.3), Section 3 of Act
111 states 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 act, 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 act.
(2) 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.
As is the case with the WCJ’s jurisdiction, the [WCAB] cannot
declare a provision of the Act to be unconstitutional because an
administrative agency has no jurisdiction to determine the
constitutional validity of its own enabling legislation. Ruzin v.
[Department] of Labor & [Industry] Bureau of Workers’
Compensation, 675 A.2d 366, 370 (Pa. Cmwlth. 1996). The
Statutory Construction Act requires the [WCAB] to presume that
the provisions of the [Act of 1972] are constitutional. 1 Pa. C.S.
§1922. Nevertheless, where Pennsylvania’s appellate courts have
addressed constitutional challenges to Act 111, it is proper for the
[WCAB] to apply those holdings.
In [Rose Corporation], [the] Commonwealth Court held that an
IRE which pre-dates the effective date of Act 111 cannot be used
to modify a claimant’s disability status under Act 111. However,
the Court went on to discuss the use of an IRE done on or after the
effective date of Act 111 and the credit found in Section 3, in the
context of a claimant injured prior to Act 111. The Court stated:
4
[I]t appears the General Assembly intended that
employers and insurers that relied upon former Section
306(a.2) 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.
Id. at 562. The Court explained the application of Act 111 as
follows:
[U]nder Act 111, [an e]mployer would receive credit
for the 104 weeks of total disability it previously paid
[the c]laimant before [the e]mployer issued its notice
on June 13, 2013[.] . . . Because [the c]laimant already
received 104 weeks of total disability benefits, under
Section 306(a.3)(1), [the e]mployer may seek a new
IRE. Should [the e]mployer choose to obtain a new IRE
that utilizes the Sixth Edition of the [AMA] Guides and
yields an impairment rating of less than 35%, [the
e]mployer could then change [the c]laimant’s disability
status back to partial by following the process set forth
in Section 306(a.3).
Id. at 563.
In [Pierson], [the] Commonwealth Court cited [Pennsylvania
AFL-CIO], and stated that the consensus is Act 111 is not
unconstitutional on its face. Pierson, 252 A.3d at 1179. The Court
also addressed a claimant’s arguments that applying Act 111 in a
retroactive manner to claimants injured prior to its effective date
is unconstitutional because it “violate[s] vested rights secured by
due process and the Remedies Clause of the Pennsylvania
Constitution” and “interferes with Claimant’s vested right to the
calculation of his compensation that arose on the date of injury[.]”
Id. at 1175, 1176. Citing Rose Corporation, 238 A.3d 551, the
5
Pierson Court rejected the claimant’s arguments, holding that the
legislature explicitly gave the 104-week and credit portions of Act
111 retroactive effect, and that Act 111 is constitutional as applied
to claimants injured before its effective date, if the IRE is
performed on or after Act 111’s effective date, because no vested
rights of claimants have been abrogated by Act 111. Pierson, 252
A.3d at 1180. Moreover, in Hutchinson v. Annville Township
([Workers’ Compensation Appeal Board]), 260 A.3d 360 (Pa.
Cmwlth. 2021), [the] Commonwealth Court cited to Pierson and
again rejected a claimant’s arguments that it is unconstitutional to
apply Act 111 to claimants injured before its effective date or
before 104 weeks have passed after Act 111’s enactment.
Based on Rose Corporation, Pierson, and Hutchinson, we
conclude that many of Claimant’s challenges to the
constitutionality of Act 111 have already been addressed and
rejected by [the] Commonwealth Court. The legislature explicitly
gave Act 111 retroactive effect with a credit to employers for total
disability benefits previously paid, and Act 111 is not
unconstitutional either on its face or as applied to claimants injured
prior to its effective date, as long as the IRE does not pre-date Act
111. Here, Claimant’s IRE was performed on June 4, 2020, which
is well after Act 111’s October 24, 2018, effective date. Act 111
applies to Claimant and does not abrogate any vested rights.
Further, [Employer] receives a credit for any weeks of total
disability benefits it paid to Claimant after her work injury and was
not required to wait until 104 weeks after Act 111’s effective date
to obtain an IRE. To the extent Claimant raises any constitutional
challenges to Act 111 that have not yet been addressed specifically
by the appellate courts, we lack jurisdiction to decide those issues.
Ruzin. In sum, we determine that the WCJ did not err in granting
[Employer’s] Modification Petition under Act 111. Nevertheless,
we acknowledge that Claimant has properly preserved her stated
issues concerning the constitutionality of Act 111 for any further
appeal.
(R.R. at 29a-32a.)
The constitutionality of Act 111 was upheld by this Court in Pennsylvania
AFL-CIO, finding that it was not an unconstitutional delegation of legislative authority.
6
Specifically, this Court held the amendment to the Act providing for IREs did not
violate the state constitutional restriction on delegation of the General Assembly’s
legislative authority. The Court noted that when the “General Assembly adopts an
existing set of standards as its own, there is no delegation and no violation of article
II, section 1 of the Pennsylvania Constitution.” Id. at 315 (emphasis in original). The
Court stated, “the [AMA Guides] establish a standard methodology for grading
impairments, which is used by the [workers’ compensation] systems in the federal
government, 44 states, and 2 commonwealths to measure a worker’s medical
impairment.” Id. at 317 (citing Protz v. Workers’ Compensation Appeal Board (Derry
Area School District), 161 A.3d 827, 835 n.3 (Pa. 2017)). Pennsylvania AFL-CIO has
consistently been cited to for this holding. See Hutchinson; Pierson.
As to Claimant’s assertion that she has not received the requisite 104
weeks of TTD benefits since the enactment of Act 111 in 2018, and prior to the June
4, 2020 IRE, this issue has also been addressed by this Court in Pierson, where we held
that
it is clear that the General Assembly intended for the 104-week
and credit weeks provisions of Act 111 to be given retroactive
effect, whereas 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 [WCAB’s] Order
affirming the WCJ.”
Pierson, 252 A.3d at 1178-80.
The WCAB thoroughly rejected Claimant’s argument citing to our
decisions Pierson, Hutchinson, and Rose Corporation, in which we held that Act 111
does not abrogate or substantially impair a claimant’s vested rights to workers’
compensation benefits because there is no right to ongoing TTD status. Hence, we
agree with the WCAB that the precedent clearly establishes that Act 111 is not a
7
constitutional violation of the Legislature’s delegation authority. Therefore, because
these cases are dispositive and binding authorities on this issue, we conclude
Claimant’s argument lacks merit.
B. Substantial Evidence
As to Claimant’s argument that there was not substantial evidence to
support the WCJ’s decision, as noted by the WCAB, Claimant did not raise this
argument to the WCAB, and therefore, it is waived. See Myers v. Workers’
Compensation Appeal Board (Family Heritage Restaurant), 728 A.2d 1021, 1023 (Pa.
Cmwlth. 1999) (“The law is well settled that issues not raised before the [WCAB] are
waived and cannot be raised for the first time before this Court.”). Even if this Court
was to address the merits of these claims, the only evidence presented before the WCJ
was the opinion of Dr. Belletieri that Claimant was at maximum medical improvement
and that Claimant’s whole-person impairment rating was 30%. (R.R. at 33a.) As such,
we would conclude that the WCAB did not err in affirming the decision of the WCJ.
III. CONCLUSION
Claimant does not challenge the qualifications of Dr. Belletieri or the
finding that her impairment rating is below the 35% whole-person impairment
threshold. Her argument with respect to the application of Act 111 is squarely
foreclosed by this Court’s decision in Pierson. Her argument regarding substantial
evidence was not raised at the time of argument and, is, therefore, waived.
Accordingly, we will affirm the WCAB’s order.
________________________________
PATRICIA A. McCULLOUGH, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Terry Brown, :
Petitioner :
: No. 154 C.D. 2022
v. :
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 26th day of July, 2023, the January 26, 2022 order of
the Workers’ Compensation Appeal Board is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge