J. Hardik v. Community Health Systems (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joanne Hardik, :
Petitioner :
:
v. : No. 385 C.D. 2022
: Submitted: March 24, 2023
Community Health Systems (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: May 17, 2023
Joanne Hardik (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 Community Health Systems
(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 378(Pa. 2021), in which this Court previously rejected similar claims. Thus, we affirm.
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 Act 111 repealed Section 306(a.2) of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.
I. BACKGROUND
On July 11, 2013, Claimant suffered a work-related injury, which
aggravated preexisting injuries to her back and resulted in total disability benefits.
On March 12, 2021, Employer filed a modification petition alleging that Claimant’s
benefit status must be modified from total to partial based upon a February 25, 2021
IRE by Dr. Michael Wolk.
The WCJ held a hearing, following which Employer introduced the
deposition testimony of Dr. Wolk and the IRE. Notes of Testimony (N.T.) Hr’g,
7/13/21, at 8. Dr. Wolk stated that Claimant had a whole-body impairment rating of
27% and that she had reached maximum medical improvement (MMI). N.T. Wolk
Dep., 7/6/21, at 11-12. Dr. Wolk performed the IRE under the Sixth Edition of the
American Medical Association’s Guides to the Evaluation of Permanent Impairment
(AMA Guides). Id. at 12. Claimant did not present any testimony and stated that
she would only be challenging the constitutionality of Act 111. N.T. Hr’g, 7/13/21, at
6-7; N.T. Hr’g, 4/13/21, at 7.
The WCJ held that Employer established that Claimant had reached
MMI and had a whole-body impairment of 27%. WCJ’s Op., 3/23/22, at 6. Thus,
the WCJ granted Employer’s petition, modifying Claimant’s benefit to partial
disability status effective February 25, 2021. Claimant appealed to the Board, which
affirmed. See Bd. Op. & Order, 3/23/22. Claimant timely petitioned this Court for
review.
2
II. ISSUES2
Claimant contends that retroactive application of Act 111 to her pre-Act
111 injury is unconstitutional. Claimant’s Br. at 11. In support, Claimant reasons she
has a vested right to WC benefits, which cannot be retroactively altered by law. Id.
at 11-12. In Claimant’s view, Act 111’s retroactive application deprived her of the right
to vested benefits and limited her total payments. Id. at 12, 15. Claimant assails
Pierson as flawed because it held that Act 111 did not alter any substantive rights. Id.
at 15-16. In support, Claimant alleges that Dana Holding Corporation v. Workers’
Compensation Appeal Board (Smuck), 232 A.3d 629, 647 (Pa. 2020) (Dana),
undermined Pierson’s holding because the Dana Court “specifically held that Act 111
altered a substantive right to benefits.” Id. at 16. Claimant also argues that Act 111
lacks “sufficiently specific language to make the law retroactive.” Id. at 20.3
III. DISCUSSION
In 2018, the General Assembly passed Act 111, which authorizes the use
of an IRE to determine a claimant’s disability status.4 Among its provisions, Section
306(a.3), the employer may require a claimant to submit to an IRE after receiving
104 weeks of total disability compensation. Section 306(a.3) expressly adopted the
Sixth Edition of the AMA Guides (second printing April 2009) as the basis for a
2
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).
3
Employer rejects these claims, asserting that Act 111 is constitutional and applies
retroactively. See Employer’s Br. at 11-15 (citing in support, inter alia, Pierson). Further, Employer
reasons that the holding of Dana was limited to cases pending on appeal when our Supreme Court
issued Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827(Pa. 2017). Id. at 16. Employer argues that Pierson rejected Claimant’s argument that Act 111 could
not apply retroactively. Id. at 17-18.
4
Prior law governing the IRE process was deemed an unconstitutional delegation of
legislative authority. Protz, 161 A.3d at 841.
3
qualified physician’s IRE, and it set the threshold required for a total disability status
at 35% whole-body impairment. Id.5 If a claimant’s impairment rating is less than
35%, then the claimant shall be considered partially disabled.6
In Pierson, this Court determined that 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 granted employers/insurers credit for the weeks
of disability compensation paid to an injured employer prior to the passage of Act
111. Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada), 238 A.3d 551, 561-62 (Pa.
Cmwlth. 2020); see also Section 3(1) of Act 111 (“[A]n insurer shall be given credit
for weeks of total disability compensation paid prior to the effective date of this
paragraph.”), Section 3(2) of Act 111 (“[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.
Our analysis in Pierson is dispositive here. Claimant, like the claimant
in Pierson, sustained her work-related injury before the passage of Act 111. See
Pierson, 252 A.3d at 1171. Employer, like the employer in Pierson, sought to modify
Claimant’s benefits based on an IRE obtained after the Act’s effective date. See id.
5
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.
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
at 1172. 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. See id. at 1175. To the extent Claimant contends that Dana undermined
Pierson, Claimant is mistaken. As Employer correctly observed, the issue before
the Dana Court was whether Protz should apply only to cases then-pending on direct
appeal. See Dana, 232 A.3d at 636; see also Scampone v. Highland Park Care Ctr.,
LLC, 57 A.3d 582, 604 (Pa. 2012) (cautioning against cherry-picking phrases out of
context). Because Pierson post-dated Dana, the validity of Pierson’s analysis was
simply not before the Dana Court. Therefore, based on our reasoning in Pierson,
we reject Claimant’s arguments. Accord DiPaolo v. UPMC Magee Women’s Hosp.
(Workers’ Comp. Appeal Bd.), 278 A.3d 430, 438 (Pa. Cmwlth. 2022), appeal denied,
290 A.3d 237 (Pa. 2023); Force v. Cmwlth. of Pa. (Workers’ Comp. Appeal Bd.) (Pa.
Cmwlth., No. 63 C.D. 2022, filed Nov. 10, 2022); Wescoe v. Fedchem, LLC (Workers’
Comp. Appeal Bd.) (Pa. Cmwlth., No. 1010 C.D. 2021, filed Aug. 16, 2022); Sochko
v. Nat’l Express Transit Serv. (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 490
C.D. 2021, filed Mar. 16, 2022); Hender-Moody v. Am. Heritage Fed. Credit Union
(Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 166 C.D. 2021, filed Feb. 15, 2022);
Dohn v. Beck n’ Call (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 103 C.D. 2021,
filed Sept. 20, 2021).7
Thus, we affirm.
LORI A. DUMAS, Judge
7
We cite unreported opinions for their persuasive value. See Pa.R.A.P 126(b)(1); 210 Pa.
Code § 69.414(a).
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joanne Hardik, :
Petitioner :
:
v. : No. 385 C.D. 2022
:
Community Health Systems (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 17th day of May, 2023, the order of the Workers’
Compensation Appeal Board, entered March 23, 2022, is AFFIRMED.
LORI A. DUMAS, Judge