K. Long v. Northeast Counseling Services (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly Long, :
Petitioner :
: No. 561 C.D. 2022
v. :
: Submitted: February 3, 2023
Northeast Counseling Services :
(Workers’ Compensation :
Appeal Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 30, 2023
In this workers’ compensation (WC) case, Petitioner Kimberly Long
(Claimant) petitions for review of the May 16, 2022 Opinion and Order of the Workers’
Compensation Appeal Board (Board), which affirmed the August 27, 2021 Decision
and Order of Workers’ Compensation Judge (WCJ) Eric Pletcher (WCJ Pletcher).
WCJ Pletcher granted the Petition to Modify Compensation Benefits (Modification
Petition) filed by Respondent Northeast Counseling Services (Employer) and modified
Claimant’s WC benefit status from total to partial based on an Impairment Rating
Evaluation (IRE) performed on September 16, 2020. At issue in this appeal,
fundamentally, is whether Section 306(a.3) of the Workers’ Compensation Act (WC
Act),1 also known as Act 111, constitutionally may be applied to Claimant’s injury and
associated receipt of WC benefits. Upon review, we affirm the Board.
1
Act of June 2, 1915, P.L. 736, as amended. Section 306(a.3) was added by the Act of October
24, 2018, P.L. 714, No. 111 (Act 111), 77 P.S. § 511.3.
I. FACTS AND PROCEDURAL HISTORY
The material facts involved in this appeal are not disputed. On April 14,
2015, Claimant suffered a cervical strain, bilateral wrist sprain, right arm sprain, and
left shoulder sprain when she tripped over a rug and fell down several concrete steps
while in the course and scope of her employment with Employer. (WCJ Pletcher
Findings of Fact (FOF) 2, 7; Reproduced Record (R.R.) at 003-4.) Pursuant to a Notice
of Compensation Payable (NCP), Claimant received temporary total disability (TTD)
benefits. (Certified Record (C.R.) Document (Doc.) No. 2.)2 By Decision and Order
circulated on December 17, 2019, WCJ Joseph Sebastianelli found Claimant to be fully
recovered from her cervical strain, bilateral wrist sprain, right arm sprain, and left
shoulder sprain. (FOF 2; R.R. at 003.) Claimant nevertheless continued to receive
TTD benefits due to an ongoing closed-head injury, concussion, post-concussive
syndrome, vestibular abnormality, and aggravation of cervical spondylosis. Id.
On September 16, 2020, Dr. Kenneth Gentilezza performed an IRE of
Claimant pursuant to Section 306(a.3) of the WC Act. Based on his evaluation, Dr.
Gentilezza concluded that, under the Sixth Edition, second printing of the American
Medical Association Guides to the Evaluation of Permanent Impairment (AMA
Guides), Claimant had a 26% whole-person impairment. (FOF 17; R.R. at 006.) WCJ
Pletcher credited Dr. Gentilezza’s opinions, which Claimant did not contest, 3 and
accordingly granted Employer’s Modification Petition and reduced Claimant’s WC
benefit status from TTD to temporary partial disability (TPD) as of September 16,
2
Claimant included in her Reproduced Record only the WCJ’s and Board’s decisions. We
therefore cite to the Certified Record from the Board as necessary to summarize the facts.
3
Claimant did not present any evidence before the WCJ and made only legal arguments
challenging the constitutionality of Act 111. (FOF 5; R.R. at 003.)
2
2020. (FOF 19; WCJ Pletcher Conclusion of Law 2; R.R. at 006, 007.) Claimant
appealed to the Board, again arguing that Act 111 is unconstitutional. The Board
affirmed, and Claimant now petitions for review in this Court.
II. ISSUES PRESENTED
Claimant presents a single, overarching issue for our review, namely,
whether Act 111 may constitutionally be applied to her injury, which occurred before
Act 111’s effective date. She argues, as she did before WCJ Pletcher and the Board,
that retroactive application of Act 111 violates due process and the Remedies Clause
of the Pennsylvania Constitution.4 Although she acknowledges that this Court rejected
these very arguments in Pierson v. Workers’ Compensation Appeal Board (Consol
Pennsylvania Coal Co.), 252 A.3d 1169 (Pa. Cmwlth. 2021), she nevertheless argues
that our analysis in Pierson and similar unreported cases is “deeply flawed” and that
Act 111 should be invalidated. (Claimant’s Br. at 17.)
III. DISCUSSION5
On September 18, 2015, approximately five months after Claimant’s
injury, 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), affirmed in
part and reversed in part, 161 A.3d 827 (Pa. 2017) (Protz II), declaring former Section
4
The Remedies Clause provides, in pertinent part, that “[a]ll 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.
5
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 Hospital v. Workers’ Compensation Appeal Board (Shoap), 81 A.3d 830, 838
(Pa. 2013). “Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” City of Philadelphia v. Workers’ Compensation Appeal Board
(Kriebel), 29 A.3d 762, 769 (Pa. 2011).
3
306(a.2) of the WC Act6 void in its entirety. In Protz II, the Pennsylvania Supreme
Court held that the General Assembly, in authorizing the application of future versions
of the AMA Guides without review, had unconstitutionally delegated its lawmaking
authority in violation of the non-delegation doctrine.7 161 A.3d at 840-41. The Court
invalidated Section 306(a.2) in its entirety.
On October 24, 2018, in response to Protz II, the General Assembly
passed Act 111, which replaced former Section 306(a.2) of the Act with Section
306(a.3). Section 306(a.3) reads in relevant part:
(1) 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 [Sixth Edition, second printing of the AMA
Guides].
6
Section 306(a.2), formerly 77 P.S. § 511.2, was repealed by Act 111 and replaced by Section
306(a.3). Section 306(a.2) provided, in pertinent part, as follows:
When an employe has received total disability compensation pursuant to
clause (a) for a period of [104] 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 [50%] . . . 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
[50%] impairment . . . the employe shall then receive partial disability
benefits under class (b) . . . .
Former 77 P.S. § 511.2.
7
Pa. Const. art. II, § 1 (“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
(2) If such determination results in an impairment rating that
meets a threshold impairment rating that is equal to or greater
than [35%] . . . , 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 . . . , the employe
shall then receive partial disability benefits under class (b) . . . .
77 P.S. § 511.3. Section 3 of Act 111 further provides, in pertinent part, 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
[S]ection 306(a.3)(1) of the [WC 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
[WC 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 [WC A]ct, 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.
In Pierson,8 the claimant sustained a work-related injury on August 13,
2014. 252 A.3d at 1171. The employer acknowledged the injury via an NCP, and the
claimant received TTD benefits. Id. at 1171-72. On December 21, 2018, the employer
filed a modification petition pursuant to newly-enacted Section 306(a.3) seeking to
change the claimant’s benefits from TTD to partial disability based on an IRE
8
Although Pierson initially was filed as an unpublished memorandum, on application of the
Pennsylvania Bar Association Workers’ Compensation Law Section, we ordered publication on April
26, 2021. See Pa. R.A.P. 3740.
5
performed on December 19, 2018. Id. at 1172. The claimant lodged constitutional
challenges to Section 306(a.3) before both the WCJ and the Board, both of which
declined to address the challenges. Id.9 On appeal to this Court, the claimant argued
that (1) Section 306(a.3) is unconstitutional “on its face,” and (2) Section 306(a.3)
cannot be applied retroactively to claims that originated (i.e., have an injury date) prior
to October 24, 2018, the effective date of the new IRE mechanism. Id. at 1174. The
claimant further argued that Act 111 involved a change in substantive law, that Protz
II invalidated any IRE mechanism that could apply to his claim, and that the application
of Act 111 to his claim retroactively violates vested rights specifically secured by due
process and the Remedies Clause of the Pennsylvania Constitution. Id. at 1174-76.
We rejected the claimant’s arguments, relying chiefly on our prior
decisions in Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth.
2019), and Rose Corporation v. Workers’ Compensation Appeal Board (Espada), 238
A.3d 551 (Pa. Cmwlth. 2020). Because our analysis in Pierson is controlling here, we
quote it at length:
In [Pennsylvania AFL-CIO], we determined [that] Act 111 was
not an unconstitutional delegation of legislative authority, as the
prior IRE provision of the [WC] Act was determined to be. . . .
Our opinion in Pennsylvania AFL-CIO was affirmed by a brief
per curiam order of our Supreme Court. . . . 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
[the] [ ] assertion that Act 111 is unconstitutional “on its face,”
and the consensus was that it is not. . . .
In addition, and in regard to the issue of the retroactive
application of the 104-week and credit provisions of Act 111, we
9
The claimant in Pierson also challenged the credibility of the physician performing the
subject IRE, an issue not before us in this appeal.
6
first address [the] [ ] contention that Protz II rendered former
Section 306(a.2) of the Act void ab initio . . . .
In [Warren v. Folk, 886 A.2d 305 (Pa. Super. 2005)], 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
[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.”
While [the] [c]laimant, here, argues that he has a right to benefits
as calculated at the time of injury, there are reasonable
expectations under the [WC] 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 [TTD] to [TPD] 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 [Section 3 of] 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
7
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 Section 3(1), an
employer/insurer will receive credit towards this
104 weeks for any weeks of [TTD] 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 WC Act.” 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 Corporation], 238 A.3d at 561-62. [W]e 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.” [Id.] at 562.
....
[The] [c]laimant, 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. As we noted above, [the] [c]laimant’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, [the c]laimant
8
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.
Id. at 1178-80. See also DiPaolo v. UPMC Magee Women’s Hospital (Workers’
Compensation Appeal Board), 278 A.3d 430, 432-38 (Pa. Cmwlth. 2022), appeal
denied, 290 A.3d 237 (Pa. 2003).
Claimant argued throughout the proceedings before WCJ Pletcher and the
Board only that Act 111 is unconstitutional. She does not challenge WCJ Pletcher’s
determination on any other grounds. Because this case is controlled by Pierson, which
we again reaffirm, we must conclude that Claimant’s arguments are without merit. We
accordingly affirm the Board.10
________________________________
PATRICIA A. McCULLOUGH, Judge
10
Although Claimant argues in her brief that the language of Act 111 does not clearly indicate
that it is to be applied retroactively, see Claimant’s Br. at 21-23, she did not preserve this before the
Board. See C.R. Doc. 5. It accordingly is waived. Starr Aviation v. Workers’ Compensation Appeal
Board (Colquitt), 155 A.3d 1156, 1162 (Pa. Cmwlth. 2017) (where a claimant has failed to raise an
issue in any manner before the Board, the issue is waived). Further, even if the issue were not waived,
Claimant’s arguments are foreclosed by Pierson, where we concluded that Act 111 clearly was
intended by the General Assembly to have retroactive application. See Pierson, 252 A.3d at 1179-
80.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly Long, :
Petitioner :
: No. 561 C.D. 2022
v. :
:
Northeast Counseling Services :
(Workers’ Compensation :
Appeal Board), :
Respondent :
ORDER
AND NOW, this 30th day of August, 2023, the May 16, 2022 order of
the Workers’ Compensation Appeal Board is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge