J.C. Hazzouri v. PA Turnpike Commission (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph C. Hazzouri, :
:
Petitioner :
:
v. : No. 889 C.D. 2021
: Submitted: March 4, 2022
Pennsylvania Turnpike Commission :
(Workers’ Compensation Appeal :
Board), :
:
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 28, 2022
Joseph C. Hazzouri (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that affirmed a decision of a
Workers’ Compensation Judge (WCJ) granting the Pennsylvania Turnpike
Commission’s (Employer) Modification Petition based on an Impairment Rating
Evaluation (IRE), and modifying Claimant’s indemnity benefits from total to partial
disability. Claimant challenges as unconstitutional the retroactive application of Act
111 of 2018 (Act 111), which added Section 306(a.3) of the Workers’ Compensation
Act (Act),1 altering the criteria for determining whether a claimant’s disability is total
1
Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 24, 2018, P.L.
714, No. 111 (Act 111), 77 P.S. §511.3.
or partial and providing that an impairment rating of less than 35% constitutes a partial
disability. Claimant maintains that Act 111 cannot be constitutionally applied to
workers whose injuries occurred before October 24, 2018, the effective date of Act
111. Upon review, we affirm.
I. Background
The facts are not in dispute. On October 3, 2010, Claimant sustained a
work-related injury to his back while lifting a dead bear off the road in the course
and scope of his employment. Employer accepted liability for the injury by issuing
a Notice of Compensation Payable. Claimant initially underwent conservative care
for his injury, including injections and chiropractic treatments and physical therapy,
and later underwent spinal fusion surgery and implantation of a permanent spinal
cord stimulator and pain pump.
On May 20, 2019, Employer filed a Modification Petition based upon
an IRE performed on April 22, 2019.2 The IRE yielded an impairment rating of less
than 35%. Claimant filed an Answer in response denying the material allegations.
By decision and order circulated on November 25, 2020, the WCJ
granted Employer’s Modification Petition. The WCJ concluded that Employer had
met its burden of proving that Claimant had an impairment rating of less than 35%
based upon the IRE of Arnold T. Berman, M.D. Consequently, the WCJ modified
Claimant’s disability status from temporary total disability to partial disability
benefits effective April 22, 2019, the date of the IRE, and ongoing.
2
On August 23, 2019, Employer filed a second Modification Petition asserting that
Claimant had been released to return to work following an Independent Medical Examination and
a Labor Market Survey (LMS) that revealed available jobs as of July 12, 2018. The WCJ denied
Employer’s Modification Petition. The denial of this Modification Petition is not at issue on
appeal.
2
Claimant appealed to the Board. Claimant argued that the IRE was
prematurely conducted because Employer had not paid 104 weeks of total disability
as of the date Act 111 went into effect on October 24, 2018. Claimant also
challenged the retroactive application of Act 111’s IRE provisions to Claimant’s
work injury as unconstitutional under article I, section 11 of the Pennsylvania
Constitution, Pa. Const. art. I, §11 (Remedies Clause),3 as well as the “separation of
powers” doctrine by impermissibly intruding upon the constitutional authority of the
Pennsylvania Supreme Court to rule on the constitutionality of legislative action
under Protz v. Workers’ Compensation Appeal Board (Derry Area School District),
161 A.3d 827 (Pa. 2017). The Board explained that, as an administrative agency, it
lacks authority to declare a statute unconstitutional. Board Op., 07/21/21, at 4 (citing
Ligonier Tavern, Inc. v. Workmen’s Compensation Appeal Board (Walker), 714
A.2d 1008, 1009 n.7 (Pa. 1998); Ruszin v. Department of Labor & Industry, Bureau
of Workers’ Compensation, 675 A.2d 366, 370 (Pa. Cmwlth. 1996)). Nevertheless,
the Board opined that this Court has previously interpreted Act 111’s retroactivity
clause to permit employers to receive a credit for all weeks of total disability paid
before October 24, 2018, and to count those weeks towards the 104 weeks required
before obtaining an IRE. Board Op., at 3-4. (citing Rose Corp. v. Workers’
3
The Remedies Clause states:
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. . . .
Pa. Const. art. I, §11.
3
Compensation Appeal Board (Espada), 238 A.3d 551 (Pa. Cmwlth. 2020)). Thus,
the Board affirmed. Claimant’s appeal to this Court now follows.4
II. Issue
Claimant argues that Act 111’s IRE mechanism cannot be applied
retroactively to him without impairing his vested rights in violation of the Remedies
Clause. The Pennsylvania Supreme Court declared the IRE process contained in
former Section 306(a.2) of the Act5 wholly unconstitutional in Protz. According to
Claimant, the right to receive workers’ compensation total disability benefits,
without interruption or limitation, is a substantive benefit established on the date of
injury. The retroactive application of Act 111 negatively impacts his vested right to
unimpaired total disability benefits by changing his disability status from total to
partial and limiting the number of claim weeks to which he is entitled. Act 111
provides credit for past partial disability benefits paid pursuant to the previously
unconstitutional IRE provisions contained in former Section 306(a.2) of the Act.
Because Act 111 was passed after Claimant’s work injury, and does not contain
sufficiently specific or clear language evidencing retroactive intent, Act 111’s IRE
mechanism cannot be retroactively applied to extinguish his vested right to benefits
without violating the Remedies Clause. Therefore, this Court should hold that Act
111 is only applicable to injuries that occur on or after October 24, 2018, Act 111’s
4
Our 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. Department of Transportation v. Workers’ Compensation Appeal Board
(Clippinger), 38 A.3d 1037, 1042 n.3 (Pa. Cmwlth. 2011). As to questions of law, our standard of
review is de novo and our scope of review is plenary. Pitt-Ohio Express v. Workers’ Compensation
Appeal Board (Wolff), 912 A.2d 206, 207 (Pa. 2006).
5
Added by the Act of June 24, 1996, P.L. 350, formerly 77 P.S. §511.2, repealed by Act
111.
4
effective date. Because Claimant’s injury predates Act 111 and 104 weeks had not
passed since Act 111 went into effect, the decision to grant Employer’s Modification
Petition must be reversed.
III. Discussion
On October 24, 2018, the General Assembly enacted Act 111, which
immediately went into effect. Act 111 repealed Section 306(a.2), formerly
77 P.S. §511.2, and added Section 306(a.3) of the Act, 77 P.S. §511.3. Section
306(a.3) reestablished the IRE process in a manner intended to cure the
constitutional deficiency identified in Protz.6 Act 111 largely reenacted the IRE
provisions held unconstitutional in Protz but, to cure the constitutional infirmity, Act
111 specified that an IRE must utilize the American Medical Association (AMA)
“Guides to the Evaluation of Permanent Impairment,” Sixth Edition (second printing
April 2009) (Sixth Edition of the AMA Guides).7 Notably, Section 306(a.3)(2) of
the Act lowered the threshold percentage of impairment below which a claimant’s
disability status could be modified from 50%, under former Section 306(a.2)(2) of
the Act, to 35%. 77 P.S. §511.3(2). If an IRE yields an impairment rating that is
6
In Protz, the Pennsylvania Supreme Court held that the IRE provisions contained in
former Section 306(a.2) of the Act, formerly 77 P.S. §511.2, violated the nondelegation doctrine
of the Pennsylvania Constitution and struck the entirety of former Section 306(a.2) as
unconstitutional. Protz, 161 A.3d at 841. Under former Section 306(a.2), a physician conducting
an IRE was to use the “most recent edition” of the American Medical Association (AMA) “Guides
to the Evaluation of Permanent Impairment” (AMA Guides). Protz, 161 A.3d at 830. The Protz
Court held that this amounted to an unconstitutional delegation to the AMA of the General
Assembly’s lawmaking power in that the AMA could revise the standards for determining
impairment at any time with unfettered discretion. Id. at 841.
7
In Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306, 317 (Pa. Cmwlth. 2019),
aff’d per curiam (Pa., No. 88 MAP 2019, filed August 18, 2020), we determined that Act 111 was
not an unconstitutional delegation of legislative authority because the General Assembly adopted
a particular set of standards in existence as its own – the Sixth Edition of the AMA Guides.
5
greater than or equal to 35%, the claimant is presumed totally disabled. Id.However, if the IRE yields an impairment rating that is less than 35%, then the
claimant is considered partially disabled. Id. Under Section 306(b)(1) of the Act, a
claimant’s receipt of partial disability benefits is limited to 500 weeks.
77 P.S. §512(b)(1).
The question before us is whether the retroactive application of Act
111’s IRE mechanism to injuries occurring before its effective date is
unconstitutional. “We have long held that ‘statutes are to be construed to operate
prospectively,’ absent clear language to the contrary.” County of Allegheny v.
Workers’ Compensation Appeal Board (Butkus), 253 A.3d 1232, 1237 (Pa. Cmwlth.
2021) (quoting City of Warren v. Workers’ Compensation Appeal Board (Haines by
Haines), 156 A.3d 371, 376 (Pa. Cmwlth. 2017)); see Section 1926 of the Statutory
Construction Act of 1972, 1 Pa. C.S. §1926 (“No statute shall be construed to be
retroactive unless clearly and manifestly so intended by the General Assembly.”).
As this Court has explained, a retroactive law is
one which relates back to and gives a previous transaction
a legal effect different from that which it had under the law
in effect when it transpired . . . . A law is given retroactive
effect when it is used to impose new legal burdens on a
past transaction or occurrence.
Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System
Hahnemann LLC), 188 A.3d 599, 616 (Pa. Cmwlth. 2018) (quoting Department of
Labor & Industry, Bureau of Employment Security v. Pennsylvania Engineering
Corp., 421 A.2d 521, 523 (Pa. Cmwlth. 1980)). “[T]he Remedies Clause prohibits
the enactment of retroactive legislation if the application . . . would extinguish a
vested right.” Konidaris v. Portnoff Law Associates, Ltd., 953 A.2d 1231, 1235 (Pa.
2008). However, where no vested right is involved, an act is not retroactively
6
construed when it is simply applied to a condition existing on its effective date.
Pierson v. Workers’ Compensation Appeal Board (Consol Pennsylvania Coal Co.
LLC), 252 A.3d 1169, 1175 (Pa. Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021)
(citing Warren v. Folk, 886 A.2d 305, 308 (Pa. Super. 2005)). Legislation that only
affects procedure may be applied retroactively. Id.; Rose Corp., 238 A.3d at 559.
In Rose Corp., this Court concluded that Act 111 applies to injuries that
occurred before its October 24, 2018 effective date, but not to IREs performed prior
thereto. 238 A.3d at 561. Further, under Act 111, “employers/insurers are given
credit for weeks of total and/or partial compensation benefits paid prior to Act 111’s
enactment.” Id. (emphasis in original). Because the claimant in Rose Corp. had
already received 104 weeks of total disability benefits, we concluded that the
employer could seek a new IRE and would be entitled to receive credit for the 104
weeks of total disability it previously paid to the claimant under Act 111. Id. at 563.
Following Rose Corp., we considered and rejected similar contentions
as those raised here. In Pierson, the claimant argued that applying Act 111 to injuries
predating its enactment would impair a claimant’s vested rights. Pierson, 252 A.3d
at 1175. More particularly, the claimant argued that Section 306(a.3) of the Act
could not be applied retroactively to affect the 500 weeks of benefits payable for
partial disability by giving the employer credit for payments made prior to Act 111’s
enactment. Id. In rejecting the claimant’s vested rights argument, we observed that
“there are reasonable expectations under the Act that benefits may change.” Id. at
1177. A claimant retains a certain right to benefits until such time as he or she is
found ineligible for them. Id. Indeed, benefits are subject to change at any time
based upon a change in medical status or earning capacity. Section 423 of the Act,
77 P.S. §772.
7
The Pierson Court opined that “the General Assembly made it clear in
Act 111 that weeks of [total temporary disability (TTD)] and partial disability paid
by an employer/insurer prior to the enactment of Act 111 count as credit against an
employer’s new obligations under Act 111.” Pierson, 252 A.3d at 1179 (citing Rose
Corp., 238 A.3d at 561). “‘For the purposes of determining the total number of
weeks of partial disability compensation payable under Section 306(a.3)(7) of the
Act, [77 P.S. §511.3(7),] an insurer shall be given credit for weeks of partial
disability compensation paid prior to the effective date of this paragraph.’” Pierson,
252 A.3d at 1174 (quoting 77 P.S. §511.3, Historical and Statutory Notes) (emphasis
added). “[I]t is clear that the General Assembly intended for the 104-week and credit
weeks provisions of Act 111 to be given retroactive effect, where . . . it stated in
plain language it was doing so.” Id. at 1180 (citing Rose Corp.).
We further explained that Act 111 did not affect the claimant’s vested
rights because it did not impose new legal burdens on a past transaction or
occurrence or otherwise change the status of a claimant’s workers’ compensation
benefits. Pierson, 252 A.3d at 1179. Rather, it merely established a means for an
employer to seek a modification of a claimant’s benefits going forward. Id.
Specifically, “Act 111 simply provided employers with the means to change a
claimant’s disability status from total to partial by providing requisite medical
evidence that the claimant has a whole body impairment of less than 35%, after
receiving 104 weeks of TTD benefits.” Id.
We have consistently applied Rose Corp. and Pierson under similar
circumstances. See Hender-Moody v. American Heritage Federal Credit Union
(Workers’ Compensation Appeal Board) (Pa. Cmwlth., No. 166 C.D. 2021, filed
8
February 15, 2022)8 (noting Act 111’s IRE mechanisms can only apply after an
employee has received 104 weeks of total disability benefits, which clearly
contemplates application to injuries predating Act 111, and holding that where the
IRE occurs after the enactment of Act 111, it does not constitute a retroactive
application of the law); Dohn v. Beck N’ Call (Workers’ Compensation Appeal
Board) (Pa. Cmwlth., No. 103 C.D. 2021, filed September 20, 2021) (similarly
holding that retroactive application of Act 111 is not unconstitutional where
substantive rights were not involved); Hutchinson v. Annville Township (Workers’
Compensation Appeal Board) (Pa. Cmwlth., Nos. 16 & 17 C.D. 2021, filed August
9, 2021) (same); cf. Butkus, 253 A.3d at 1237 (limiting retroactivity where Act 111
effected substantive changes in law and concluding that the General Assembly did
not intend the 60-day statutory limitations period for challenging disability status
modifications to apply retroactively).
Contrary to Claimant’s assertions, Act 111 did not automatically
change his disability status or otherwise deprive him of vested rights under the Act.
Rather, Act 111 simply provided a mechanism for Employer to pursue a change in
Claimant’s disability status by requiring medical evidence that Claimant’s whole-
body impairment was less than 35%. Because Claimant’s IRE occurred after the
enactment of Act 111, it did not constitute a retroactive application of the law.
Because Claimant already received 104 weeks of total disability benefits, Employer
was permitted, under Section 306(a.3)(1), to seek a new IRE, a modification based
on its results, and a credit for disability benefits paid. See Pierson, 252 A.3d at 1179;
Rose Corp., 238 A.3d at 563.
8
Pursuant to Pa.R.A.P. 126(b), and Section 414(a) of this Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a), unreported panel decisions of this Court filed after January
15, 2008, may be cited for their persuasive value.
9
Because our analysis in Rose Corp. and Pierson are directly applicable
and controlling here, and because “we are bound to follow the decisions of our Court
unless overruled by the Supreme Court or where other compelling reasons can be
demonstrated,” Crocker v. Workers’ Compensation Appeal Board (Georgia Pacific
LLC), 225 A.3d 1201, 1210 (Pa. Cmwlth. 2020), we reject Claimant’s constitutional
challenges to Act 111.
IV. Conclusion
Accordingly, we affirm the Board’s order.
MICHAEL H. WOJCIK, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph C. Hazzouri, :
:
Petitioner :
:
v. : No. 889 C.D. 2021
:
Pennsylvania Turnpike Commission :
(Workers’ Compensation Appeal :
Board), :
:
Respondent :
ORDER
AND NOW, this 28th day of April, 2022, the order of the Workers’
Compensation Appeal Board dated July 21, 2021, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge