E. Dohn v. Beck N' Call (WCAB) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Elizabeth Dohn, :
Petitioner :
:
v. : No. 103 C.D. 2021
: Submitted: July 16, 2021
Beck N’ Call (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: September 20, 2021
Elizabeth Dohn (Claimant) petitions for review from the January 12,
2021 Order of the Workers’ Compensation Appeal Board (Board) that affirmed the
June 25, 2020 Decision and Order of the workers’ compensation judge (WCJ),
granting the Petition to Modify Compensation Benefits (Modification Petition) filed
by Beck N’ Call (Employer). For the reasons that follow, we affirm the Order of the
Board.
I. Background
The facts in this case are not at issue. On May 26, 2016, Employer
issued a Notice of Temporary Compensation Payable (NTCP) recognizing cervical,
lumbar, and left shoulder work injuries resulting from a motor vehicle accident.1 The
NTCP subsequently converted to a Notice of Compensation Payable by operation of
law. WCJ’s Dec. and Order, 6/25/20, Findings of Fact (F.F.) No. 1. On February 8,
2019, Claimant underwent an Independent Rating Evaluation (IRE), which was
performed using the Sixth Edition of the American Medical Association (AMA)
Guides to the Evaluation of Permanent Impairment (the Guides). As a result of the
IRE, Claimant was found to have a whole person impairment rating of 12%. Thus,
Employer filed a Modification Petition on March 25, 2019, seeking to modify
Claimant’s benefits from temporary total disability (TTD) to temporary partial
disability as of February 8, 2019. F.F. No. 3. On April 3, 2019, Claimant filed an
Answer to Employer’s Modification Petition, denying Employer had an entitlement
to modify her benefits because such a modification would violate her constitutional
rights. The matter was assigned to the WCJ, who held multiple hearings and
accepted documentary evidence.2
Claimant submitted no medical evidence and did not dispute the
opinions of the doctor who conducted the IRE, i.e., Dr. Lucian Bednarz. F.F. No. 4.
Claimant testified before the WCJ in regard to her symptoms and medical treatment
and also testified that she has not returned to work. F.F. No. 5. The WCJ found
Claimant to be credible but determined her testimony was not material to the issues
in the case because she was defending against the Modification Petition solely by
challenging the constitutionality of changes made to the Workers’ Compensation
1
Claimant was employed by Employer as a home health aid worker, which required her to
travel by car to visit and assist clients. Claimant’s Br. at 5.
2
The only exhibit presented and admitted into evidence was the deposition transcript of
Employer’s medical witness, i.e., the doctor who performed the IRE.
2
Act (Act)3 relative to the passage of Act 111 in October 2018.4 F.F. No. 6;
Conclusion of Law (C.L.) No. 2. The WCJ stated: “Claimant’s position, essentially,
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
4
See Act of October 24, 2018, P.L. 714, No. 111. On October 24, 2018, Act 111 replaced
former Section 306(a.2) of the Act with new Section 306(a.3), added by the Act of October 24,
2018, P.L. 714, No. 111, 77 P.S. §511.3. 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 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) . . . .
Section 306(a.3) of the Act, 77 P.S. §511.3 (emphasis added).
Former Section 306(a.2) of the Act, formerly 77 P.S. §511.2, read, in pertinent 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 most recent edition of [the 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) . . . .
(Footnote continued on next page…)
3
is that [she] accrued an interest in ongoing benefits and a vested right to future
benefits without an IRE when Protz II was handed down by the Supreme Court of
Pennsylvania.”5 C.L. No. 2. The WCJ concluded: “As a matter of law, this [WCJ]
does not have jurisdiction over constitutional issues.” C.L. No. 3. Further, the WCJ
concluded that since Claimant was found to have less than a 35% whole person
impairment, per the Sixth Edition of the Guides, Employer was entitled to a
modification of Claimant’s benefits from TTD to partial disability. C.L. No. 4.
Thus, the WCJ granted Employer’s Modification Petition, placing Claimant on
partial disability for a period of 500 weeks beginning on February 8, 2019. C.L. No.
5. Claimant appealed to the Board.
In its January 12, 2021 Opinion, the Board determined that it, like the
WCJ, did not have authority to review the constitutional aspect of Claimant’s
argument in the present matter, and because Claimant did not contend that the IRE
failed to meet the requirements of Act 111, the Board affirmed the WCJ. Claimant
now petitions this Court for review.6
Former Section 306(a.2)(1) of the Act, as amended, added by Section 4 of the Act of June 24,
1996, P.L. 350, formerly 77 P.S. §511.2, repealed by the Act of October 24, 2018, P.L. 714, No.
111 (emphasis added). Subparagraph (b) referenced above provides for payment of partial
disability for no more than 500 weeks. Section 306(b)(1) of the Act, 77 P.S. §512(1), limits a
claimant’s receipt of partial disability benefits to 500 weeks.
5
Protz v. Workers’ Compensation Appeal Board (Derry Area Sch. Dist.), 161 A.3d 827(Pa. 2017), is also known as Protz II. Protz II, and Claimant’s argument relative to it, is addressed
in more detail in our discussion below.
6
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).
4
II. Arguments
A. Claimant’s Arguments
Claimant argues that “Act 111 is unconstitutional as it violates Article
II, Section 1 of the Pennsylvania Constitution[7] by delegating legislative authority to
the [AMA] to make, alter and enact laws.” Claimant’s Br. at 7. Further, Claimant
asserts that the application of Act 111 in the present matter is substantive in nature
and that her “vested right to benefits cannot be taken away by [a] substantive change
in law.” Id.Claimant notes that our Supreme Court, in Protz v. Workers’
Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017),
Protz II, struck down former Section 306(a.2) of the Act as unconstitutional,
reasoning that the General Assembly had delegated its legislative authority to the
AMA. However, Claimant argues that “Act 111 is no less unconstitutional than
[former] Section 306(a.2) [of the Act]” because “[t]he Legislation has failed to
provide any standard by which impairment ratings should be assessed,” once again
granting legislative authority to the AMA. Claimant’s Br. at 9-10.
In addition, Claimant asserts that applying Act 111 to her in the instant
matter is unconstitutional because her “claims were vested rights at the time of the
application and the application of retroactivity violated her due course of law and
[the] separation of powers.” Claimant’s Br. at 10. Claimant acknowledges that there
is an exception to the general rule against retroactive application where the General
Assembly has not explicitly expressed its intention of retroactive effect and the
statute is merely procedural in nature and does not alter a substantial right. However,
Claimant notes that our Supreme Court rejected the notion that former Section
7
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.”
5
306(a.2) of the Act “can be couched as procedural, and that [its] substantive import
can be overlooked . . . .” Claimant’s Br. at 12 (quoting Dana Holding Corp. v.
Workers’ Comp. Appeal Bd. (Smuck), 232 A.3d 629 (Pa. 2020)).
Quoting Giant Eagle, Inc. v. Workers’ Compensation Appeal Board
(Weigand), 764 A.2d 663, 668 (Pa. Cmwlth. 2000), Claimant states “‘[c]laimants
have a vested right in the continuation of worker[s’] compensation benefits until
found to be ineligible.’” Claimant’s Br. at 11. Further, Claimant argues that “[a]
vested right is a property right.” Id. Citing Konidaris v. Portnoff Law Associates,
Ltd., 953 A.2d 1231 (Pa. 2008), among other cases, Claimant contends that our
“Supreme Court has held that statutory law cannot retroactively alter a vested right.”
Claimant’s Br. at 13.
For all the foregoing reasons, Claimant argues that “the [] application
of Act 111[,] retroactively to a May 15, 2016 claim[,] unconstitutionally violates
[her] vested right[s] granted following the Protz II ruling.” Claimant’s Br. at 18.
Accordingly, Claimant asserts that the Board’s Order should be reversed, and
Employer’s Modification Petition should be denied with prejudice.8
8
An amicus curiae brief was filed in the present matter by the Pennsylvania Association
for Justice (the Association) in support of Claimant’s position. As the arguments made by the
Association are substantially similar to those raised by Claimant, we do not provide a separate
section of narrative summarizing the Association’s position. However, we note that the essence
of the Association’s argument is substantially stated in its brief as follows:
This case is not just about Claimant. It is about all workers injured prior to
October 24, 2018 who have been granted wage loss benefits under the [] Act . . . .
As written, Act 111 [applies] to all injuries since June 1915, when the Act
became effective . . . . Such an impairment of the property rights of workers who
suffered a work-related injury is beyond ANY authority the General Assembly has
and strikes at a fundamental principle protected by the Pennsylvania Constitution .
...
(Footnote continued on next page…)
6
B. Employer’s Arguments
Employer argues that our Supreme Court recently affirmed this Court’s
opinion in Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth.
2019), aff’d (Pa., No. 88 MAP 2019, August 18, 2020), in which we determined that
Act 111 is constitutional, as it limits IRE standards to those in effect in the Sixth
Edition of the Guides at the time Act 111 was enacted. Employer’s Br. at 6.
Employer contends that, by adopting
a set of standards, the Sixth Edition [of the Guides], which was already
in existence at the time of adoption, . . . the General Assembly exercised
its legislative authority to decide which standards to apply to IREs, and
in doing so, it did not delegate this authority to the AMA. In short,
there is no delegation of legislative authority since the AMA cannot
make additional changes to the Act’s impairment guidelines. Rather,
they have been “set in stone” by the legislature as of the [S]ixth
[E]dition.
By contra[s]t, the previous statute mandated the use of the “most
recent” guideline, allowing the AMA to change the Section 306(a.2)
guidelines with every new edition. This issue [has] been addressed and
corrected by the enactment of Section 306(a.3).
Employer’s Br. at 9.
Employer argues that Act 111 is constitutional as applied to the instant
case because the intent of the General Assembly was clear that “benefits paid prior
to the enactment of Act 111 are validly counted toward the cap on 500 weeks” of
[T]he [Association] respectfully requests that this Honorable Court declare
Act 111 unconstitutional as applied to any injured worker with a claim under the
[Act] who was injured before October 24, 2018[,] and prohibit the status of any
indemnity benefits to be changed based upon an IRE performed under Act 111 for
those injured workers.
Association’s Br. at 30-31 (emphasis included in original.)
7
partial disability.9 Id. Employer further contends that Act 111 should be applied
retroactively because the legislative intent in this regard was clearly expressed where
the legislature allowed credit for “pre-Protz [II] weeks” in calculating a claimant’s
term of partial disability. Employer’s Br. at 11. Employer adds that Claimant had a
right to defend against the Modification Petition, including a right to present
evidence to rebut Employer’s request for same. Thus, Employer argues that
Claimant’s due process rights were not violated by the modification of her benefits,
and the Board’s Order affirming the WCJ should be affirmed.
III. Discussion
Initially, we address Claimant’s contention that Act 111 is
unconstitutional because it is an improper delegation of legislative authority. This
issue was recently settled in Pennsylvania AFL-CIO, in which we determined Act
111 was not an unconstitutional delegation of legislative authority, as the prior IRE
provision of the Act was determined to be. In Pennsylvania AFL-CIO, we stated
that
[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
[Pennsylvania] 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 this Commonwealth. It is not delegating its authority
to legislate. The General Assembly made a policy decision regarding
9
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.
8
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 Aug. 18, 2020). As this issue
is now settled, there is no need for us to address it further herein.
As for Claimant’s contention that she has a vested right in her workers’
compensation benefits, such that the current IRE provision of Act 111 would deprive
her of same, we also addressed this very issue in another recent opinion of this Court.
In Pierson v. Workers’ Compensation Appeal Board (Consol Pennsylvania Coal
Company, LLC) (Pa. Cmwlth., No. 423 C.D. 2020, filed Feb. 9, 2021), we stated:
While [c]laimant, 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.
Pierson, slip op. at 16. As in Pierson, Claimant here did not automatically lose
anything by the mere enactment of Act 111. Act 111 simply provided a mechanism
for Employer to pursue a change in Claimant’s disability status by producing the
required medical evidence to do so. Further, the parties’ arguments in regard to
9
retroactive application are somewhat misplaced here because, as we previously
noted in our opinion in Whitfield v. Workers’ Compensation Appeal Board (Tenet
Health System Hahnemann, LLC), 188 A.3d 599, 616 (Pa. Cmwlth. 2018),
[a] retroactive law has been defined as one which relates back to and
gives a previous transaction a legal effect different from that which it
had under the law in effect when it transpired . . . . A law is given
retroactive effect when it is used to impose new legal burdens on a
past transaction or occurrence.
(quoting Dep’t of Lab. & Indus., Bureau of Emp. Sec. v. Pa. Eng’g Corp., 421 A.2d
521, 523 (Pa. Cmwlth. 1980) (emphasis added; internal citations omitted)). In the
present matter, Act 111 did not impose new legal burdens on a past transaction or
occurrence. As we stated above, Act 111 did not change the status of Claimant’s
workers’ compensation benefits. It merely established a means, among others, for
Employer to seek modification of Claimant’s benefits going forward.
As Act 111 is not an unconstitutional delegation of legislative authority,
and the imposition of Act 111 did not change Claimant’s status or deprive her of
vested rights, we affirm the Order of the Board affirming the WCJ’s Decision and
Order.
IV. Conclusion
For the foregoing reasons, we affirm the January 12, 2021 Order of the
Board.
______________________________
J. ANDREW CROMPTON, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Elizabeth Dohn, :
Petitioner :
:
v. : No. 103 C.D. 2021
:
Beck N’ Call (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 20th day of September 2021, the January 12, 2021
Order of the Workers’ Compensation Appeal Board is AFFIRMED.
______________________________
J. ANDREW CROMPTON, Judge