J. Perillo v. Extended Healthcare Services (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jacqueline Perillo, :
Petitioner :
v. : No. 62 C.D. 2022
: Submitted: August 12, 2022
Extended Healthcare Services :
(Workers’ Compensation :
Appeal Board), :
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: November 2, 2022
Jacqueline Perillo (Claimant) petitions for review from the December 27,
2021 order of the Workers’ Compensation Appeal Board (Board) which affirmed
the June 30, 2021 decision and order of the Workers’ Compensation Judge (WCJ)
granting the modification petition filed by Extended Healthcare Services (Employer)
and changing Claimant’s disability status from temporary total disability (TTD) to
temporary partial disability (TPD) based upon a May 1, 2019 Impairment Rating
Evaluation (IRE). Upon review, we affirm.
I. Background
Claimant does not dispute the facts underlying this appeal. Claimant suffered
an injury in the course of her employment with Employer on October 9, 2003.
Certified Record (C.R.), Item No. 5, WCJ Decision, at 3. On May 1, 2019, Claimant
underwent an IRE, which returned a 4% impairment rating based on the Sixth
Edition of the American Medical Association Guides to the Evaluation of Permanent
Impairment. Id. Employer filed a Modification Petition on March 25, 2021,
requesting Claimant’s disability status be changed from TTD to TPD as of the date
of the IRE. Id.
The WCJ held a hearing on the Modification Petition, wherein Claimant
raised and preserved legal challenges to Section 306(a.3) of the Workers’
Compensation Act (Act),1 77 P.S. § 511.3.2 Claimant did not, however, present any
medical evidence to rebut Employer’s IRE. C.R., Item No. 5, WCJ Decision, at 4.
The WCJ granted Employer’s petition and modified Claimant’s status to TPD as of
May 1, 2019. Id. at 6. Claimant appealed, and the Board affirmed the WCJ’s
Decision. C.R., Item No. 8, Board Opinion, at 4-5.
Claimant timely appealed the Board’s order, and solely raised the following,
previously preserved challenges to the Act: (1) whether Section 306(a.3) of the Act
violates article I, section 11 of the Pennsylvania Constitution,3 and (2) whether
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
2
Added by the Act of October 24, 2018, P.L. 714, No. 111 (Act 111), 77 P.S. § 511.3.
3
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.
2
Section 306(a.3) of the Act contains sufficiently specific language to be applied
retroactively. Petitioner’s Br. at 2.
II. Analysis
In a workers’ compensation appeal, we are “limited to determining whether
[the] necessary findings of fact are supported by substantial evidence, whether an
error of law was committed, or whether constitutional rights were violated.”
Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa.
Cmwlth. 2007).
Recently, in the published decision of DiPaolo v. UPMC Magee Women’s
Hospital (Workers’ Compensation Appeal Board), 278 A.3d 430, 435-38 (Pa.
Cmwlth. 2022) petition for allowance of appeal filed, __ A.3d __ (Pa., No. 191 WAL
2022, filed July 12, 2022), a panel of this Court rejected a claimant’s argument that
Section 306(a.3) of the Act violated article I, section 11 of the Pennsylvania
Constitution. In Rose Corporation v. Workers’ Compensation Appeal Board
(Espada), 238 A.3d 551, 562 (Pa. Cmwlth. 2020), our Court noted that, “[t]hrough
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. . . . [T]he General Assembly used specific
language to give retroactive effect to these carefully selected individual
provisions . . . .” For the same reasons outlined in DiPaolo and Rose Corporation,
which we need not repeat here, we reject Claimant’s challenges to Section 306(a.3)
of the Act.
III. Conclusion
Claimant’s arguments against the enforcement of Act 111 of 2018, Section
306(a.3) of the Act, 77 P.S. § 511.3, have been previously raised before and rejected
3
by this Court. Accordingly, we follow our prior, precedential decisions and reject
Claimant’s challenges. Accordingly, the Board’s order is affirmed.
______________________________
STACY WALLACE, Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jacqueline Perillo, :
Petitioner :
v. : No. 62 C.D. 2022
:
Extended Healthcare Services :
(Workers’ Compensation :
Appeal Board), :
Respondent :
ORDER
AND NOW, this 2nd day of November, 2022, the order of the Workers’
Compensation Appeal Board dated December 27, 2021, is AFFIRMED.
______________________________
STACY WALLACE, Judge