B. Stoshick v. Air Products & Chemicals, Inc. & Indemnity Ins. Co. of N.A. (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bernie Stoshick, :
Petitioner :
:
v. :
:
Air Products & Chemicals, Inc. and :
Indemnity Insurance Company of :
North America (Workers’ :
Compensation Appeal Board), : No. 27 C.D. 2021
Respondents : Submitted: September 24, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: February 3, 2022
Bernie Stoshick (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) December 21, 2020 order
affirming Workers’ Compensation Judge Joseph Sebastianelli’s (WCJ Sebastianelli)
decision that granted Claimant’s remanded Petitions to Reinstate, Modify, and
Review WC Benefits (Reinstatement, Modification and Review Petitions)
(collectively, Petitions) as of July 27, 2017, and granted Air Products & Chemicals,
Inc.’s (Employer) Modification Petition as of February 25, 2019. Claimant presents
two issues for this Court’s review: (1) whether Act 1112 can be constitutionally
1
This matter was assigned to the panel before January 3, 2022, when President Judge
Emerita Leavitt became a senior judge on the Court.
2
Act of October 24, 2018, P.L. 714. Act 111 repealed the unconstitutional Impairment
Rating Evaluation (IRE) provision and replaced it with a new IRE provision, Section 306(a.3) of
the WC Act, Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of Act 111, 77 P.S. §
511.3, that was virtually identical and effective immediately. Act 111 specifically incorporated
applied to workers whose injuries occurred before Act 111’s October 24, 2018
effective date; and (2) whether Act 111 contains sufficiently specific language to
make the law retroactive. After review, this Court affirms.
On March 17, 2009, Claimant sustained an injury while working for
Employer. On July 26, 2011, Claimant underwent an Impairment Rating Evaluation
(IRE) by Dr. Emmanuel Jacobs (Dr. Jacobs). Using the American Medical
Association (AMA) “Guides to the Evaluation of Permanent Impairment (Guides),”
6th edition, Dr. Jacobs determined that Claimant had an impairment rating of less
than 50%. On August 24, 2011, Employer issued a Notice of Change of Workers’
Compensation Disability Status (Notice of Change), changing Claimant’s WC status
from total disability to partial disability, effective July 26, 2011.
On July 27, 2017, Claimant filed the Petitions requesting reinstatement
of temporary total disability benefits based on the Pennsylvania Supreme Court’s
decision in Protz v. Workers’ Compensation Appeal Board (Derry School District),
161 A.3d 827 (Pa. 2017) (Protz II).3 On February 13, 2018, WCJ Sebastianelli
granted Claimant’s Petitions and reinstated Claimant’s WC benefits to temporary
total disability as of July 26, 2011. Employer appealed and the Board remanded the
matter to the WCJ in accordance with Whitfield v. Workers’ Compensation Appeal
Board (Tenet Health System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018).4
On October 24, 2018, the Pennsylvania General Assembly passed Act
111, which replaced the IRE process that was previously held unconstitutional by
Protz II. On February 25, 2019, Claimant underwent a new IRE pursuant to Act
and adopted the use of the American Medical Association “Guides to Evaluation of Permanent
Impairment,” 6th edition (second printing April 2009), for performing IREs.
3
Protz II was decided June 20, 2017.
4
Whitfield was decided June 6, 2018. The Whitfield Court held that the proper date for
modification based on an unconstitutional IRE is the date the reinstatement petition is filed.
2
111’s standards as set forth in Section 306(a.3) of the WC Act (Act).5 Claimant’s
new impairment rating was 13%. On May 11, 2020, in separate but identical
decisions, WCJ Sebastianelli reinstated Claimant’s total disability benefits effective
July 27, 2017, the date Claimant filed his Reinstatement Petition, and granted
Employer’s Modification Petition, modifying Claimant’s status from total to partial
disability, effective February 25, 2019, the date the IRE was performed pursuant to
Act 111. Claimant appealed from both decisions to the Board. On December 21,
2020, the Board affirmed both WCJ Sebastianelli’s reinstatement of benefits to total
disability as of the date Claimant filed his Petitions, and the modification of benefits
to partial disability based on the IRE conducted pursuant to Act 111. Claimant
appealed to this Court.6, 7
Claimant argues that, pursuant to Protz II, WCJ Sebastianelli should
have reinstated Claimant’s total disability benefits as of July 26, 2011, the date the
constitutionally invalid IRE was performed. However, because Claimant did not
challenge the validity of the July 26, 2011 IRE until after Protz II was decided,
Whitfield and its progeny mandate that Claimant is not entitled to reinstatement of
total disability benefits as of the IRE date.
The Whitfield Court explained:
Our decision today does not impose any new legal
consequences based upon a past transaction. Simply
because Protz II is being applied to a case that arose from
a work injury and a change in disability status that predates
it does not mean it operates retroactively. It would be
5
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.3.
6
“[This Court’s] review determines whether there has been a violation of constitutional
rights, whether errors of law have been committed, whether board procedures were violated, or
whether necessary findings of fact are supported by substantial evidence.” Bryn Mawr
Landscaping Co. v. Workers’ Comp. Appeal Bd. (Cruz-Tenorio), 219 A.3d 1244, 1252 n.5 (Pa.
Cmwlth. 2019).
7
The Pennsylvania Association for Justice filed an amicus curiae brief in support of
Claimant’s position.
3
retroactive if it related back and gave a prior transaction a
legal effect different from that which it had under the law
in effect at the time. This decision does not alter
Claimant’s past status. Rather, it gives effect to the
Claimant’s status as it existed at the time []he filed [his]
reinstatement petition, which was filed within the statutory
timeframe for filing such petitions.
Whitfield, 188 A.3d at 617 (underline emphasis added; citations omitted); see also
Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada), 238 A.3d 551, 564 (Pa.
Cmwlth. 2020) (“[T]he Board’s conclusion that [the c]laimant was entitled to
reinstatement of total disability benefits as of the date [the c]laimant filed the
[reinstatement p]etition is consistent with Act 111, the [] Act, and precedent.”
(emphasis added)); White v. Workers’ Comp. Appeal Bd. (City of Phila.), 237 A.3d
1225, 1231 (Pa. Cmwlth. 2020), appeal denied, 244 A.3d 1230 (Pa. 2021) (“[The
c]laimant’s modification from total to partial disability was effective in 2013 and
had not been appealed. Accordingly, [the c]laimant [] is entitled to reinstatement
as of the date of h[is] reinstatement petition, not the effective date of the change
in h[is] disability status from total to partial.” (emphasis added)). Consequently,
Claimant is entitled to reinstatement of total disability benefits as of the date he filed
his Reinstatement Petition.
Claimant further contends that the Board’s decision violates article I,
section 11 of the Pennsylvania Constitution,8 also known as the Remedies Clause,
8
Article I, section 11 of the Pennsylvania Constitution declares:
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. Suits may be brought against the Commonwealth in such
manner, in such courts and in such cases as the Legislature may by
law direct.
Pa. Const. art. I, § 11.
4
because it deprives Claimant of a vested right to WC benefits and improperly gives
force to an unconstitutionally invalid statute. However,
[the Pennsylvania Supreme Court] limited the scope of the
protection to vested rights: ‘It must be something more
than a mere expectation, based upon an anticipated
continuance of existing law. It must have become a title,
legal or equitable, to the present or future enforcement of
a demand, or a legal exemption from a demand made by
another.’
Konidaris v. Portnoff Law Assocs., Ltd., 953 A.2d 1231, 1242 (Pa. 2008) (quoting
Lewis v. Pa. R.R. Co., 69 A. 821, 823 (Pa. 1908)).
Section 413(a) of the Act provides that “[a] [WCJ] . . . may, at any time,
modify, reinstate, suspend, or terminate [WC benefits] . . . upon petition filed by
either party . . . , upon proof that the disability of an injured employe has increased,
decreased, recurred, or has temporarily or finally ceased . . . [;]” thus, there are no
vested rights in WC benefits. 77 P.S. § 772; see also Whitfield. Because Claimant
does not have a vested right in WC benefits, the Remedies Clause does not apply.
Accordingly, WCJ Sebastianelli properly reinstated Claimant’s total disability
benefits as of the date his Reinstatement Petition was filed, July 27, 2017.
Claimant next argues that Employer’s Modification Petition should be
denied because Act 111 does not contain sufficiently specific language to make the
law retroactive. To the contrary, Act 111 replaced former Section 306(a.2) of the
Act with Section 306(a.3) of the Act, which 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
5
an evaluation by a physician . . . pursuant to the [AMA
‘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 [35%] impairment under the
[AMA ‘Guides,’] 6th edition ([second printing April
2009]), 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 [AMA ‘Guides,’] 6th edition
([second printing April 2009]), the employe shall then
receive partial disability benefits . . . : Provided,
however, That no reduction shall be made until [60] days’
notice of modification is given.
(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
[AMA ‘Guides,’] 6th edition ([second printing April
2009]).
(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
[AMA ‘Guides,’] 6th edition ([second printing April
2009]).
(6) Upon request of the insurer, the employe shall submit
to an independent medical examination 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] independent medical
6
examinations 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
[AMA ‘Guides,’] 6th edition ([second printing April
2009]), for any injury or recurrence thereof.
77 P.S. § 511.3 (emphasis added). Act 111 also added Section 3 to the Act, which
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
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).
In Rose Corporation, this Court explained:
The plain language of Section 3 [of Act 111] establishes a
mechanism by which employers/insurers may receive
credit for weeks of compensation previously paid. First,
Section 3(1) [of Act 111] provides that an
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
7
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 . . . . Therefore, pursuant to Section 3(1) [of
Act 111], an employer/insurer will receive credit towards
this 104 weeks for any weeks of total disability 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 Act.” In short,
any week of partial disability previously paid will count
towards the 500-week cap on such benefits.
Accordingly, Section 3 of Act 111 does not evidence clear
legislative intent that the entirety of Act 111 should be
given retroactive effect. Instead, it appears the General
Assembly intended that employers and insurers that relied
upon former Section 306(a.2) [of the Act] 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.
Rose Corp., 238 A.3d at 561-62 (citations and footnote omitted).
While it is true that Section 306(a.3) [of the Act]
essentially reenacted the IRE provisions, importantly,
Section 306(a.3) [of the Act] did not take effect until it
was enacted on October 24, 2018. Therefore, until that
time, Employer could not utilize an IRE to change
Claimant’s disability status, even if the IRE otherwise
complied with the later enacted requirements of Section
306(a.3)(1) [of the Act,] because no law permitted
Employer to utilize an IRE process until Act 111 was
enacted. There is no provision in Act 111 which
specifically or implicitly provides for an IRE performed
prior to Section 306(a.3) [of the Act]’s enactment to be
validated afterward. Arguably, this would undermine the
invalidation of IREs by the [Pennsylvania] Supreme Court
in Protz II, whereas the approach set forth herein gives
8
effect to the statutory language while upholding the
legislative balance of claimants’ and employers’/insurers’
interests in light of Protz II and Act 111.
Rose Corp., 238 A.3d at 563-64 (footnote omitted). Accordingly, WCJ Sebastianelli
properly granted Employer’s Modification Petition effective February 25, 2019, the
date the IRE was performed pursuant to Act 111.
For all of the above reasons, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bernie Stoshick, :
Petitioner :
:
v. :
:
Air Products & Chemicals, Inc. and :
Indemnity Insurance Company of :
North America (Workers’ :
Compensation Appeal Board), : No. 27 C.D. 2021
Respondents :
ORDER
AND NOW, this 3rd day of February, 2022, the Workers’
Compensation Appeal Board’s December 21, 2020 order is affirmed.
_________________________________
ANNE E. COVEY, Judge