C. Force v. Com. of PA (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Choya Force, :
Petitioner :
:
v. : No. 63 C.D. 2022
: Submitted: August 26, 2022
Commonwealth of Pennsylvania :
(Workers’ Compensation Appeal :
Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: November 10, 2022
Choya Force (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 the Commonwealth of
Pennsylvania (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
1
Act 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 Act 111 repealed Section 306(a.2) of the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.
denied, 261 A.3d 378 (Pa. 2021), in which this Court previously rejected similar
claims. Thus, we affirm.
I. BACKGROUND
On June 25, 2015, Claimant suffered a work-related injury to her back.2
Claimant eventually received total disability benefits of $552 per week. On July 21,
2020, Employer filed a modification petition alleging that Claimant had a whole-
body impairment rating of 14%. The WCJ held hearings, at which Employer
introduced, among other exhibits, the impairment rating evaluation (IRE) performed
by Dr. Kenneth Gentilezza under the Sixth Edition of the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides)
(second printing April 2009). See, e.g., N.T. Hr’g, 10/8/20, at 5-6; IRE, 6/18/20, at
7. Claimant did not testify or otherwise dispute the IRE as Claimant indicated she
was challenging only the applicability of Act 111 because her injury predated the
Act. N.T. Hr’g, 10/8/20, at 8; accord WCJ Op., 1/15/21, at 3-4. The WCJ granted
Employer’s modification petition, reasoning that Employer had proven that
Claimant had a 14% whole body impairment, and therefore Claimant should receive
partial disability benefits. WCJ Op. at 4, 6. Claimant appealed to the Board, which
affirmed, and Claimant timely petitioned this Court for review. See Bd.’s Op.,
1/7/22.
II. ISSUE
On appeal, Claimant argues that because her injury predates the
enactment of Act 111, Act 111 cannot be retroactively applied. Claimant’s Br. at 8
(unpaginated). In Claimant’s view, Act 111 violates the Remedies Clause of the
2
Unless stated otherwise, we state the facts as set forth in the Board’s decision, which is
supported by substantial evidence of record. See, e.g., Notes of Testimony (N.T.) Hr’g, 8/14/20,
at 6. We add that the WCJ’s decision did not extensively discuss the background of this case.
2
Pennsylvania Constitution and contravenes Protz v. Workers’ Comp. Appeal Bd.
(Derry Area Sch. Dist.), 124 A.3d 406, 416 (Pa. Cmwlth. 2015) (Protz I), aff’d in
part and rev’d in part, 161 A.3d 827, 841 (Pa. 2017) (Protz II). Id. at 11-17.
Claimant relatedly argues that Act 111 lacks “sufficiently specific language to make
the law retroactive.” Id. at 17-18.
III. ANALYSIS3
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.4 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
3
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 Mawr Landscaping Co. v. Workers’ Comp.
Appeal Bd. (Cruz-Tenorio), 219 A.3d 1244, 1252 n.5 (Pa. Cmwlth. 2019) (citation omitted).
4
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); accord WCJ Op. at 6.
3
approved new versions of the AMA Guides without review. See generally Protz I,
124 A.3d at 416. 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 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.5
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
5
In Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306, 317 (Pa. Cmwlth. 2019),
aff’d (Pa., No. 88 MAP 2019, filed Aug. 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.
4
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;
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 used “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
(citation omitted); 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) (same as applied to partial disability compensation). Therefore,
5
the employer credit provision was “explicitly given retroactive effect . . . by the
General Assembly.” Pierson, 252 A.3d at 1180.
B. Pierson is Dispositive
Our analysis in Pierson controls here. Claimant, like the claimant in
Pierson, sustained her 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 her 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).6
IV. CONCLUSION
For these 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
6
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).
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Choya Force, :
Petitioner :
:
v. : No. 63 C.D. 2022
:
Commonwealth of Pennsylvania :
(Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
AND NOW, this 10th day of November, 2022, the order of the Workers’
Compensation Appeal Board, entered January 7, 2022, is AFFIRMED.
LORI A. DUMAS, Judge