K. Wescoe v. Fedchem, LLC & SWIF (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kirk Wescoe, :
Petitioner :
:
v. : No. 1010 C.D. 2021
: Submitted: March 4, 2022
Fedchem, LLC and State Workers’ :
Insurance Fund (Workers’ :
Compensation Appeal Board), :
Respondents :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: August 16, 2022
Kirk Wescoe (Claimant) has petitioned this Court to review an
adjudication of the Workers’ Compensation Appeal Board (Board), which affirmed
the decision of the Workers’ Compensation Judge (WCJ). The WCJ granted a
petition to modify compensation benefits filed by Fedchem, LLC (Employer). In
this appeal, Claimant challenges as unconstitutional the retroactive application of
Act 111,1 which altered the criteria for modification of a claimant’s benefits based
on the results of an impairment rating evaluation (IRE). Upon review, this case is
controlled by Pierson v. Workers’ Compensation Appeal Board (Consol
Pennsylvania Coal Co.), 252 A.3d 1169 (Pa. Cmwlth.), appeal denied, 261 A.3d
1Act of October 24, 2018, P.L. 714, No. 111 (Act 111). Act 111 repealed Section 306(a.2) of the
Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by the Act
of June 24, 1996, P.L. 350, formerly 77 P.S. §511.2, and added Section 306(a.3), 77 P.S. §511.3.
378 (Pa. 2021), in which this Court previously rejected similar claims. Thus, we
affirm.
I. BACKGROUND
On September 8, 2011, Claimant sustained a work-related injury to his
lower back.2 Employer acknowledged the injury as a lower back strain in a notice
of compensation payable, which was later amended to include an L4-5 disc
herniation with radiculopathy. Claimant received disability benefits at a weekly rate
of $858 based upon an average weekly wage of $1,329.64.3
On November 5, 2019, Employer filed a modification petition alleging
that Claimant had a whole-body impairment rating of 13%. The WCJ held hearings,
at which Employer presented testimony from Lucian Bednarz, M.D., a board-
certified physiatrist. Dr. Bednarz performed an IRE of Claimant under the Sixth
Edition of the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (AMA Guides) (second printing April 2009).
In response, Claimant presented the testimony of Maxime Gedeon,
M.D., a board-certified interventional pain management physician. Dr. Gedeon
conceded that he is not certified to perform an IRE but cautioned that Claimant’s
symptoms wax and wane based upon the treatment that he receives. Claimant also
testified about his injury, the symptoms he continues to experience, and the various
treatments he has received.
2
Unless stated otherwise, we adopt the factual background for this case from the Decision
of the WCJ, entered December 7, 2020, which is supported by substantial evidence of record. See
WCJ Decision, 12/7/20, at 3-8.
3
This case has a lengthy procedural history, which we need not discuss in detail.
Nevertheless, we note that, in August 2016, Employer filed a separate petition to modify benefits.
Based upon a labor market survey, the WCJ ultimately reduced Claimant’s benefits to $673.09 per
week as of August 3, 2016. See WCJ Decision, 9/22/20. There is no dispute before us regarding
that decision.
2
Upon considering this evidence, the WCJ credited the testimony of Dr.
Bednarz over that of Dr. Gedeon. The WCJ concluded that Employer established
that Claimant had a whole-body impairment of 13% and, therefore, granted
Employer’s petition, modifying Claimant’s benefits to partial disability status
effective April 5, 2019.
Claimant appealed to the Board, which affirmed. See Bd. Op. & Order,
9/8/21. Claimant then timely petitioned this Court for review.
II. ISSUE
Claimant challenges the Board’s retroactive application of Act 111.
Claimant’s Br. at 4. According to Claimant, because the IRE provisions in Act 111
present a substantive change in the law, these provisions may only apply
prospectively. Id. at 6. Further, Claimant asserts that he has a vested right to his
disability benefits. Id. at 9. Thus, according to Claimant, the Board violated the
Remedies Clause of the Pennsylvania Constitution when it granted Employer a
credit for those weeks of total disability benefits paid prior to the enactment of Act
111. See id. at 9-10.4 Claimant’s claims are without merit.5
III. ANALYSIS
In a workers’ compensation appeal, our review is limited to determining
whether an error of law was committed, whether constitutional rights were violated,
and whether necessary findings of fact are supported by substantial evidence. Bryn
4
The Remedies Clause provides that “every man for an injury done him in his lands, goods,
person or reputation shall have remedy by due course of law . . . [.]” PA. CONST. art. I, §11. The
Remedies Clause prohibits the enactment of retroactive legislation if its application would
extinguish a “vested right.” Konidaris v. Portnoff Law Assocs., Ltd., 953 A.2d 1231, 1242 (Pa.
2008).
5
For its part, Employer flatly rejects these claims, asserting that this Court has previously
determined that Act 111 is constitutional and applies retroactively. See Employer’s Br. at 8 (citing
in support Pierson).
3
Mawr Landscaping Co. v. Workers’ Comp. Appeal Bd. (Cruz-Tenorio), 219 A.3d
1244, 1252 n.5 (Pa. Cmwlth. 2019) (citation omitted).
A. Recent Case Law and the Legislative Response
A brief overview of the recent case law and statutory developments will
provide appropriate context to Claimant’s appeal. Under former Section 306(a.2)(2)
of the Act, 77 P.S. § 511.2 (repealed), the General Assembly authorized the use of
an IRE to determine a claimant’s disability status. Former Section 306(a.2)(2)
required a physician to perform an IRE in accordance with the methodology set forth
in “the most recent edition” of the AMA Guides. See 77 P.S. § 511.2(2) (repealed).
If the IRE yielded a whole-body impairment rating equal to or greater than 50%,
then the claimant was presumed to be totally disabled, whereas a claimant with an
impairment rating less than 50% was considered partially disabled. See id.6 At the
time former Section 306(a.2) was enacted, “the most recent edition” of the AMA
Guides was the Fourth Edition. Thereafter, the American Medical Association
issued a Fifth Edition and Sixth Edition of the AMA Guides.
In 2015, this Court determined that former Section 306(a.2) of the Act
was an unconstitutional delegation of legislative authority because it proactively
approved new versions of the AMA Guides without review. Protz v. Workers’
Comp. Appeal Bd. (Derry Area Sch. Dist.), 124 A.3d 406, 416 (Pa. Cmwlth. 2015),
aff’d in part and rev’d in part, 161 A.3d 827, 841 (Pa. 2017) (Protz II). Rather than
striking former Section 306(a.2) in its entirety, we remanded the matter to the Board
with instructions that any IRE must adhere to the Fourth Edition of the AMA Guides,
which was in effect at the time the General Assembly enacted former Section
6
A change in disability status does not alter the amount of compensation received by a
claimant but limits the receipt of benefits to 500 weeks. See Section 306(b) of the Act, 77 P.S. §
512(1).
4
306(a.2). Id. Upon further review, our Supreme Court affirmed this Court’s holding
that former Section 306(a.2) impermissibly delegated legislative power to a private
entity. However, it concluded that the offending language, i.e., “the most recent
edition” of the AMA Guides, could not be severed from the Act. Accordingly, the
Supreme Court declared the entirety of former Section 306(a.2) to be
unconstitutional. Protz II, 161 A.3d at 841.
Subsequently, the General Assembly passed Act 111, which replaced
former Section 306(a.2) of the Act with new Section 306(a.3). Similarly, Section
306(a.3)(1) provides that once a claimant receives 104 weeks of total disability
compensation, an insurer or employer may require the claimant to submit to an IRE.
77 P.S. § 511.3. However, Section 306(a.3) of the Act enacted new standards for an
IRE. It expressly adopted the Sixth Edition of the AMA Guides (second printing
April 2009) as the basis for a qualified physician’s IRE, and it reduced the threshold
required for a total disability status from a 50% whole-body impairment rating to
35%. Id.7
Recently, in Pierson, this Court addressed the retroactive application of
Act 111. In that case, the claimant had sustained a work-related injury in 2014, prior
to the passage of Act 111. Pierson, 252 A.3d at 1171. The Board granted the
employer’s petition to modify the claimant’s disability status from total to partial
based on an IRE performed after the effective date of Act 111. Id. at 1172. On
appeal to this Court, the claimant argued that (1) Act 111 cannot be applied
retroactively because it represents a substantive, not a procedural, change in the law;
7
In Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306, 317 (Pa. Cmwlth. 2019),
aff’d (Pa., No. 88 MAP 2019, filed August 18, 2020) (per curiam), this Court determined that
Section 306(a.3) of the Act does not constitute an unconstitutional delegation of legislative
authority because the General Assembly named and adopted a particular set of standards as its
own.
5
and (2) applying Act 111 to injuries predating its enactment would impair his vested
disability rights in violation of the Remedies Clause. Id. at 1175.
In rejecting these arguments, we explained that 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.” Id. at 1179 (cleaned up). Yet, we
observed, “there are reasonable expectations under the Act that benefits may
change.” Id.; see also Section 413(a) of the Act, 77 P.S. § 772 (providing that a
WCJ may “modify, reinstate, suspend, or terminate” benefits at any time “upon
proof that the disability of an injured” employee has changed). Thus, Act 111 did
not deprive claimants of a vested right but “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 [total temporary disability] benefits.”
Pierson, 252 A.3d at 1179.
Further, the General Assembly specified using “clear language” that
employers/insurers were entitled to credit for the weeks of disability compensation
paid to an injured employee prior to the passage of Act 111. See id. at 1179-80
(quoting Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada), 238 A.3d 551, 561-
62 (Pa. Cmwlth. 2020)); see also Act 111, § 3(1) (“[A]n insurer shall be given credit
for weeks of total disability compensation paid prior to the effective date of this
paragraph.”), § 3(2) (“[A]n insurer shall be given credit for weeks of partial disability
compensation paid prior to the effective date of this paragraph.”). Therefore, the
employer credit provision was “explicitly given retroactive effect . . . by the General
Assembly.” Pierson, 252 A.3d at 1180.
6
B. Pierson is Dispositive
Our analysis in Pierson is directly applicable and controlling here.
Claimant, like the claimant in Pierson, sustained his work-related injury before the
passage of Act 111. Employer, like the employer in Pierson, sought to modify
Claimant’s benefits based on an IRE obtained after the Act’s effective date.
Claimant, like the claimant in Pierson, challenges the retroactivity of the employer
credit provision of Act 111 and asserts a vested right in his disability benefits.
Therefore, based on our reasoning in Pierson, we reject Claimant’s arguments.
Accord Sochko v. Nat’l Express Transit Serv. (Workers’ Comp. Appeal Bd.) (Pa.
Cmwlth., No. 490 C.D. 2021, filed March 16, 2022); Hender-Moody v. Am. Heritage
Fed. Credit Union (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 166 C.D. 2021,
filed February 15, 2022); Dohn v. Beck n’ Call (Workers’ Comp. Appeal Bd.)
(Pa. Cmwlth., No. 103 C.D. 2021, filed September 20, 2021).8
IV. CONCLUSION
For the foregoing reasons, we conclude that the Board’s application of
Act 111 in modifying Claimant’s benefits to partial disability status did not violate
the Remedies Clause found in article I, section 11 of the Pennsylvania Constitution
because Claimant does not have a vested right to workers’ compensation benefits.
Thus, we affirm the Board’s adjudication.
LORI A. DUMAS, Judge
8
We cite Sochko, Hender-Moody, and Dohn for their persuasive value pursuant to Rule
126(b)(1) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 126(b)(1), and Section
414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kirk Wescoe, :
Petitioner :
:
v. : No. 1010 C.D. 2021
:
Fedchem, LLC and State Workers’ :
Insurance Fund (Workers’ :
Compensation Appeal Board), :
Respondents :
ORDER
AND NOW, this 16th day of August 2022, the order of the Workers’
Compensation Appeal Board, entered September 8, 2021, is AFFIRMED.
LORI A. DUMAS, Judge