B.J. Doe v. City of Phila. (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Benedict J. Doe, :
Petitioner :
:
v. : No. 477 C.D. 2022
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent : Submitted: September 9, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: November 17, 2022
Benedict J. Doe (Claimant) petitions this Court for review of the April 20,
2022 order of the Workers’ Compensation Appeal Board (Board) affirming the
decision of a workers’ compensation judge (WCJ), which granted the City of
Philadelphia’s (Employer) petition to modify Claimant’s temporary total disability
(TTD) benefits based on the results of an impairment rating evaluation (IRE). The
IRE was performed in accordance with the Workers’ Compensation Act’s (Act)
Section 306(a.3),1 a provision which Claimant argues cannot be properly applied to
1
Act of June 2, 1915, P.L. 736, as amended, added by Act of October 24, 2018, P.L. 714
No. 111 (Act 111), 77 P.S. § 511.3. Section 306(a.3)(1) of the Act requires that an employee who
has received total disability compensation for 104 weeks submit to an IRE pursuant to the
American Medical Association’s “Guides to the Evaluation of Permanent Impairment,” 6th edition
(second printing April 2009) (AMA Guides), for the purpose of determining his degree of whole-
body impairment (WBI) due to the compensable injury. 77 P.S. § 511.3(1). If the IRE results in
a WBI that is less than 35%, the employee shall receive partial disability benefits under Section
306(b) of the Act. 77 P.S. § 511.3(2). Section 306(b)(1) of the Act limits a claimant’s receipt of
partial disability benefits to 500 weeks. 77 P.S. § 512(1).
injuries that occurred before its effective date of October 24, 2018. Claimant also
argues that Act 111, which repealed former Section 306(a.2)2 of the Act and replaced
it with Section 306(a.3), is an unconstitutional delegation of legislative authority.
After review, we affirm.
I. Background
The factual and procedural history of this matter is not in dispute. Claimant
sustained injuries to his hands and face resulting from an electric shock on October
25, 2013, which occurred in the course of his employment. Certified Record (C.R.),
Item No. 4, WCJ Decision, Finding of Fact (F.F.) No. 1. Employer recognized the
injuries via a Notice of Compensation Payable and began paying TTD benefits. Id.
On February 19, 2021, Employer submitted a petition to modify Claimant’s
benefits from TTD to partial, based on a January 19, 2021 IRE. C.R., Item No. 2.
That examination, conducted in accordance with the 6th edition of the AMA Guides,
assigned Claimant a WBI rating of 19%. C.R., Item No. 4, F.F. No. 3(h). In an
October 29, 2021 decision, a WCJ granted the modification petition and changed
Claimant’s benefits to partial status as of January 19, 2021, the date of the IRE. Id.,
Conclusion of Law No. 2. The WCJ declined to address the issue of Act 111’s
constitutionality, but noted that it was preserved for appeal. Id., F.F. No. 8.
Claimant appealed to the Board, which affirmed the WCJ. C.R., Item No. 8,
Board Opinion at 5. Regarding Claimant’s constitutional arguments, the Board
noted that Act 111’s constitutionality has been upheld by this Court in Pierson v.
Workers’ Compensation Appeal Board (Consol Pennsylvania Coal Company LLC),
252 A.3d 1169 (Pa. Cmwlth. 2021), Rose Corporation v. Workers’ Compensation
Appeal Board (Espada), 238 A.3d 551 (Pa. Cmwlth. 2020), and Pennsylvania AFL-
2
Added by the Act of June 24, 1996, P.L. 350, repealed by Act 111.
2
CIO v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth. 2019), aff’d, (Pa., No. 88 MAP
2019, filed August 18, 2020). Id. at 3-4. This appeal followed.3
II. Issues
Claimant argues that Act 111 cannot be retroactively applied to injuries, such
as his, that occurred before October 24, 2018, the date when Act 111 became
effective. He also argues that Act 111 is an unconstitutional delegation of the
General Assembly’s legislative authority.
III. Discussion
In Protz v. Workers’ Compensation Appeal Board (Derry Area School
District), 161 A.3d 827, 830 (Pa. 2017), our Supreme Court struck down former
Section 306(a.2) of the Act as an unconstitutional delegation of legislative authority,
as it simply provided that an IRE would be conducted pursuant to “the most recent
edition” of the AMA Guides. The General Assembly subsequently enacted Act 111,
which, in relevant part, repealed the unconstitutional provision and replaced it with
Section 306(a.3), 77 P.S. § 511.3. Rather than referring vaguely to a “most recent
edition,” Section 306(a.3) specifies that an IRE should be conducted in accordance
with the 6th edition (second printing) of the AMA Guides. 77 P.S. §511.3(2).
Claimant argues that Act 111 contains no retroactivity provision, and that it
therefore cannot be retroactively applied to claims originating before it became
effective on October 24, 2018. Since Claimant’s injury occurred on October 25,
2013, he maintains that his benefits could not have been properly modified due to
the January 19, 2021 IRE.
3
Our standard of 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. Lehigh Specialty Melting, Inc. v. Workers’ Comp. Appeal Bd.
(Bosco), 260 A.3d 1053, 1058 n.3 (Pa. Cmwlth. 2021).
3
As the Board noted, this Court has already considered and rejected that
argument in Pierson, 252 A.3d at 1180. In that case, the claimant sustained a
workplace injury on August 13, 2014. Id. at 1171. On December 21, 2018, his
employer filed a petition to modify the claimant’s TTD benefits based on an IRE
that had been performed two days previously. Id. at 1172. The claimant argued that
Act 111 could not “be constitutionally applied in a retroactive manner,” but only to
“claims that . . . originated on or after the date of the passage of the present IRE
mechanism, October 24, 2018.” Id. at 1174. We disagreed, explaining that “the
104-week and credit provisions of Act 111 were explicitly given retroactive effect
by the clear language used by the General Assembly.”4 Id. at 1180.
Claimant does not explain why the facts in the instant matter are
distinguishable from those in Pierson; instead, he merely repeats the assertions made
by the claimant in that previous case. In the absence of any basis for distinguishing
the instant matter from Pierson, we reject Claimant’s argument as lacking in merit.
We turn now to Claimant’s argument that Act 111 was an unconstitutional
delegation of the General Assembly’s legislative authority. In support, Claimant
relies on the Supreme Court’s observation in Protz that “the General Assembly may
delegate regulatory power to responsible governmental agencies, but not to private
persons.” 161 A.3d at 837 (citing Olin Matheson Chem. Corp. v. White Cross Stores,
Inc., 199 A.2d 266, 267-68 (Pa. 1964)). Claimant maintains that Act 111
“uncritically adopts the 6th edition[, second printing,] of the AMA Guides while
4
Section 3(2) of Act 111 states that, 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 Act’s effective
date. Pierson, 252 A.3d at 1174 (citing 77 P.S. § 511.3, Historical and Statutory Notes).
4
leaving its authors politically unaccountable,” thereby replicating former Section
306(a.2)’s constitutional infirmity. Claimant’s Brief at 8.
This argument, too, has already been considered and rejected by this Court in
AFL-CIO, 219 A.3d at 306. In that case, the petitioner labor union argued that
Section 306(a.3), no less than its repealed predecessor, unconstitutionally delegated
legislative authority to the AMA, a private entity. Id. at 315. We disagreed, holding
that there was no delegation to the AMA in Section 306(a.3). Id. We explained that
what rendered former Section 306(a.2) unconstitutional was its adoption, “sight
unseen of future standards or editions, without guidance by the General Assembly
as to the basic policy decisions and standards to restrain the discretion of the entity
setting those standards that is problematic.” Id. (emphasis in original). In enacting
Section 306(a.3), by contrast, the General Assembly adopted “as its own a particular
set of standards which already [were] in existence at the time of its adoption.” Id.
at 316.
Claimant, once again, does not explain why the facts in the instant matter are
distinguishable from those set forth in AFL-CIO, or why our decision in that matter
was erroneous. For the foregoing reasons, we affirm the Board.
____________________________
ELLEN CEISLER, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Benedict J. Doe, :
Petitioner :
:
v. : No. 477 C.D. 2022
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 17th day of November, 2022, the order of the Workers’
Compensation Appeal Board, dated April 20, 2022, is hereby AFFIRMED.
____________________________
ELLEN CEISLER, Judge