J. Hutchinson v. Annville Twp. (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Hutchinson, :
:
Petitioner :
:
v. : No. 314 C.D. 2022
: Submitted: July 14, 2023
Annville Township (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 WOJCIK FILED: August 15, 2023
John Hutchinson (Claimant) petitions for review of the order of the
Workers’ Compensation Appeal Board (Board) affirming the decision of a workers’
compensation judge (WCJ) that dismissed his Petition to Reinstate Compensation
Benefits (Reinstatement Petition). 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 a
claimant’s disability status and providing that an impairment rating of less than 35%
constitutes a partial disability, and providing a credit for partial disability benefits
already paid. Claimant maintains that Act 111 cannot be constitutionally applied to
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.
workers whose injuries occurred before October 24, 2018, the effective date of Act
111. Upon review, we affirm.
The facts of this case are not in dispute. On June 29, 2006, Claimant
suffered a work-related fracture of his left leg while working for Annville Township
(Employer). Claimant received temporary total disability payments (TTD) pursuant
to a Notice of Compensation Payable (NCP). In 2009, Employer had Claimant
undergo an Impairment Rating Evaluation (IRE) under former Section 306(a.2) of
the Act,2 which resulted in a WCJ decision granting a modification of Claimant’s
benefits to partial disability as of February 23, 2010. See Reproduced Record (RR)
at 41a. Claimant did not appeal the WCJ’s decision. Id.
On March 6, 2017, Claimant filed a Reinstatement Petition seeking a
change in his disability status from partial to total disability based on the
Pennsylvania Supreme Court’s opinion in Protz v. Workers’ Compensation Appeal
Board (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II).3 Initially,
2
Added by the Act of June 24, 1996, P.L. 350, formerly, 77 P.S. §511.2, repealed by Act
111.
3
As this Court has recently explained:
On September 18, 2015, our Court issued a decision in Protz v.
Workers’ Compensation Appeal Board (Derry Area School
District), 124 A.3d 406 (Pa. Cmwlth. 2015), aff’d in part, rev’d in
part, 161 A.3d 827 (Pa. 2017) (Protz I). In Protz I, we held that
former Section 306(a.2) of the Act, which permitted IREs to be
conducted based on “the most recent edition” of the American
Medical Association’s Guides to the Evaluation of Permanent
Impairment (AMA Guides), was an impermissible delegation of
legislative authority in violation of the non-delegation doctrine in
[article II, section 1 of] the Pennsylvania Constitution[, Pa. Const.
art.II, §1]. In Protz I, we remanded to the Board to apply the Fourth
Edition of the AMA Guides, which was the version of the AMA
(Footnote continued on next page…)
2
TTD benefits were reinstated effective June 17, 2009, by a WCJ decision dated
November 27, 2017. See RR at 9a. However, Employer appealed and the matter
was remanded to the WCJ by the Board by opinion and order mailed February 27,
2019. See id. On February 12, 2020, the WCJ issued another decision granting
Claimant’s Reinstatement Petition and Claimant’s disability status remained at total
disability effective March 6, 2017. See id. at 60a.
While the foregoing Board appeal was pending, on January 7, 2019,
Claimant submitted to an IRE performed by Scott Naftulin, D.O. Thereafter, on
March 1, 2019, Employer filed a Petition to Modify Compensation Benefits
(Modification Petition) seeking to reduce Claimant’s status to partial disability based
on Dr. Naftulin’s determination following the IRE that Claimant had a whole-person
impairment of 3%. RR at 57a.4 At a hearing before the WCJ on both Claimant’s
Guides in effect at the time the IRE provisions were enacted. Protz
I, 124 A.3d at 416-17. On June 20, 2017, our Supreme Court issued
Protz II, in which it agreed with our Court that the legislature
unconstitutionally delegated its lawmaking authority when it
enacted former Section 306(a.2) of the Act. The Supreme Court
further determined, however, that the violative language of former
Section 306(a.2) of the Act could not be severed from the rest of that
section, and it struck the entirety of former Section 306(a.2) from
the Act. Protz II, 161 A.3d at 841. Following Protz II, the
legislature enacted new provisions of the Act, which require IREs to
be performed using the AMA Guides, Sixth Edition (second printing
April 2009). See Section 306(a.3) of the Act, 77 P.S. § 511.3.
Yeager v. City of Philadelphia (Workers’ Compensation Appeal Board) (Pa. Cmwlth., Nos. 709
C.D. 2021, 736 C.D. 2021, 739 C.D. 2021, filed August 4, 2022), appeal denied, ___ A.3d ___
(Pa., No. 228 EAL 2022, filed February 15, 2023), slip op. at 7 (footnote omitted).
4
Section 306(a.3)(1), (2) and (7) of the Act states:
(1) When an employe has received total disability compensation . . .
for a period of [104] weeks, unless otherwise agreed to, the employe
shall be required to submit to a medical examination which shall be
(Footnote continued on next page…)
3
Reinstatement Petition and Employer’s Modification Petition, Employer submitted
into the record Dr. Naftulin’s report, which the WCJ determined to be “credible,
logical, internally consistent, and persuasive.” Id. As a result, in her February 20,
2020 decision, the WCJ also granted Employer’s Modification Petition, modifying
Claimant’s disability status from total disability to partial disability effective January
7, 2019, the date of Dr. Naftulin’s IRE. See id. at 60a.
requested by the insurer within [60] days upon the expiration of the
[104] weeks to determine the degree of impairment due to the
compensable injury, if any. The degree of impairment shall be
determined based upon an evaluation by a physician who is . . .
chosen by agreement of the parties, or as designated by the
[D]epartment [of Labor and Industry (Department)], pursuant to the
[AMA Guides], 6th [E]dition (second printing April 2009).
(2) If such determination results in an impairment rating that meets
a threshold impairment rating that is equal to or greater than [35%]
impairment under the [AMA Guides], 6th [E]dition (second printing
April 2009), the employe shall be presumed to be totally disabled
and shall continue to receive total disability compensation
benefits. . . . If such determination results in an impairment rating
less than [35%] impairment under the [AMA Guides], 6th [E]dition
(second printing April 2009), the employe shall then receive partial
disability benefits . . . : Provided, however, That no reduction shall
be made until [60] days’ notice of modification is given.
***
(7) In no event shall the total number of weeks of partial disability
exceed [500] weeks for any injury or recurrence thereof, regardless
of the changes in status in disability that may occur. In no event
shall the total number of weeks of total disability exceed [104]
weeks for any employe who does not meet a threshold impairment
rating that is equal to or greater than [35%] impairment under the
[AMA Guides], 6th [E]dition (second printing April 2009), for any
injury or recurrence thereof.
77 P.S. §511.3(1), (2), and (7).
4
Both Claimant and Employer filed cross-appeals of the WCJ’s decision.
By opinion and order dated December 21, 2020, the Board affirmed the WCJ’s
decision. See RR at 62a-76a. On further appeal, this Court affirmed the Board’s
order. See Hutchinson v. Annville Township (Workers’ Compensation Appeal
Board), 260 A.3d 360 (Pa. Cmwlth. 2021), appeal denied, 279 A.3d 1180 (Pa. 2022).
On November 20, 2020, while the prior Board appeal was pending,
Employer stopped paying Claimant’s disability benefits upon his receipt of 500
weeks of partial disability payments. As a result, Claimant filed the instant
Reinstatement Petition alleging, inter alia, that his “benefits were terminated
because Employer alleged that [he] had reached 500 weeks of disability payments,”
and that “[i]n calculating the 500-week [partial disability] benefit period, Employer
used benefits paid pursuant to an IRE which has since been found to be
unconstitutional and was invalidated.” RR at 1a.5
As the WCJ acknowledged at a hearing on the Reinstatement Petition,
the matter presented “primarily a legal question” and the parties entered into a
Stipulation of the Parties regarding the relevant facts. RR at 37a-76a, 83a. Before
5
In its Answer to the Reinstatement Petition, Employer explained:
Based on the WCJ’s decision dated February 12, 2020, which was
affirmed by the [Board], [] Claimant’s benefits were modified to
partial disability based on an Act 111 IRE as of January 7, 2019.
Based on Act 111, [Employer] took a credit for all previous
payments of partial disability benefits. When [Employer] paid 500
weeks of partial disability benefits, it stopped paying [] Claimant
because he was no longer entitled to any further partial disability
payments.
RR at 4a.
5
the WCJ, Claimant argued, inter alia, that Section 3(2) of Act 111,6 which provided
Employer with a credit for all partial disability benefits that he had been previously
paid, violates the Due Process Clauses of the United States7 and Pennsylvania
Constitutions,8 and the Remedies Clause of the Pennsylvania Constitution.9 See RR
at 27a-29a. Ultimately, the WCJ concluded that “Act 111 as applied to Claimant’s
situation is valid,” and “he is without authority to conclude that Act 111 is
unconstitutional.” WCJ 9/10/21 Decision at 7. Accordingly, the WCJ issued an
order dismissing Claimant’s Reinstatement Petition. Id. at 8. Claimant timely
appealed the WCJ’s decision to the Board.
On March 22, 2022, the Board issued an opinion and order disposing
of Claimant’s appeal in which it stated the following, in relevant part:
6
Section 3(2) of Act 111 states:
(2) For the purposes of determining the total number of weeks of
partial disability compensation payable under [S]ection 306(a.3)(7)
of the [A]ct, an insurer shall be given credit for weeks of partial
disability compensation paid prior to the effective date of this
paragraph.
77 P.S. §511.3, Historical and Statutory Notes.
7
Section 1 of the Fourteenth Amendment to the United States Constitution states, in
pertinent part: “No State shall . . . deprive any person of life, liberty, or property, without due
process of law . . . .” U.S. Const. amend. XIV, §1.
8
Article I, section 1 of the Pennsylvania Constitution states: “All men are born equally
free and independent, and have certain inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing and protecting property and
reputation, and of pursuing their own happiness.” Pa. Const. art. I, §1.
9
The Remedies Clause states: “[E]very 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.
6
Based on Rose Corporation[ v. Workers’
Compensation Appeal Board (Espada), 238 A.3d 551,
561-62 (Pa. Cmwlth. 2020),] and Pierson [v. Workers’
Compensation Appeal Board (Consol Pennsylvania), 252
A.3d 1169 (Pa. Cmwlth.), appeal denied, 261 A.3d 378(Pa. 2021)], we conclude that Claimant’s due process
challenge to Act 111 has already been addressed and
rejected by Commonwealth Court. The legislature
explicitly gave Act 111 retroactive effect with a credit to
employers for partial disability benefits previously paid,
and Act 111 is not unconstitutional because it does not
abrogate any vested rights of claimants, as long as the IRE
does not pre-date Act 111. Here, Claimant’s most recent
IRE was performed on January 7, 2019, which is after Act
111’s October 24, 2018 effective date. Therefore,
[Employer] is entitled to a credit for all partial disability
benefits it previously paid to Claimant. Claimant
acknowledges the Court’s holding in Pierson, but argues
that it was wrongly decided. However, we observe that
the holding set forth in Pierson is binding precedent and
this Board must follow it. . . . In sum, we determine that
the WCJ did not err in dismissing Claimant’s
Reinstatement Petition. Nevertheless, we acknowledge
that Claimant has properly preserved his stated issues
concerning the constitutionality of Act 111 for any further
appeal.
Board 3/22/22 Opinion at 7-8. Accordingly, the Board issued an order affirming the
WCJ’s decision. See id. at 9. Claimant then filed this timely petition for review.
On appeal, 10 Claimant again argues that the credit provision of Section
3(2) of Act 111 violates his due process rights as guaranteed by Section 1 of the
10
As we have observed:
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
(Footnote continued on next page…)
7
Fourteenth Amendment to the United States Constitution and article I, section 1 of
the Pennsylvania Constitution,11 and the Remedies Clause of article I, section 11 of
the Pennsylvania Constitution. As a result, he asserts that the Board erred in
affirming the WCJ’s decision dismissing his Reinstatement Petition. We do not
agree.
With respect to the retroactive application of the credit provisions of
Section 3(1) and (2) of Act 111, this Court has previously observed:
The plain language of Section 3 establishes a
mechanism by which employers/insurers may receive
credit for weeks of compensation previously paid. First,
Section 3(1) provides that an employer/insurer “shall be
given credit for weeks of total disability compensation
paid prior to the effective date of this paragraph” for
purposes of determining whether the 104 weeks of total
disability had been paid. This 104 weeks is important
because, under both the former and current IRE
provisions, a claimant need not attend an IRE until after
the claimant receives 104 weeks of total compensation. 77
P.S. §[511.3](1); former [S]ection 77 P.S. §[511.2](1).
See Section 3(1) of Act 111. Therefore, pursuant to
Section 3(1), an employer/insurer will receive credit
towards this 104 weeks for any weeks of total disability
benefits that were previously paid prior to Act 111’s
enactment. Second, an employer/insurer will be given
credit for any weeks of partial disability compensation
our scope of review is plenary. Pitt-Ohio Express v. Workers’
Compensation Appeal Board (Wolff), 912 A.2d 206, 207 (Pa. 2006).
Hender-Moody v. American Heritage Federal Credit Union (Workers’ Compensation Appeal
Board) (Pa. Cmwlth., No. 166 C.D. 2021, filed February 15, 2022), appeal denied, 284 A.3d 119(Pa. 2022), slip op. at 3 n.3.
“[T]he due process provisions of the United States and Pennsylvania Constitutions are
11
generally treated as coextensive. This Court’s due process analysis, therefore, is the same under
both federal and state law.” Kovler v. Bureau of Administrative Adjudication, 6 A.3d 1060, 1062
n.2 (Pa. Cmwlth. 2010) (citation omitted).
8
paid prior to enactment of Act 111 “[f]or the purposes of
determining the total number of weeks of partial disability
compensation payable under [S]ection 306(a.3)(7) of the
[A]ct.” Section 3(2) of Act 111. In short, any weeks of
partial disability previously paid will count towards the
500-week cap on such benefits.
Accordingly, Section 3 of Act 111 does not
evidence clear legislative intent that the entirety of Act 111
should be given retroactive effect. Instead, it appears the
General Assembly intended that employers and insurers
that relied upon former Section 306(a.2) to their detriment
by not pursuing other methods of a modification should
not bear the entire burden of the provision being declared
unconstitutional. Through 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. However, for the benefit of claimants, the
General Assembly also specifically reduced the
impairment rating necessary for a claimant’s status to be
changed from 49% or lower to 34% or lower, making it
more difficult for employers to change total disability
status to partial disability status. That the General
Assembly used specific language to give retroactive effect
to these carefully selected individual provisions does not
make the entirety of Act 111 retroactive as the amendment
lacks clear language to that effect.
Rose Corporation, 238 A.3d at 561-62 (citation and footnote omitted).
Nevertheless, as in this case, the claimant in DiPaolo v. UPMC Magee
Women’s Hospital (Workers’ Compensation Appeal Board), 278 A.3d 430, 433-34
(Pa. Cmwlth. 2022), argued that “by permitting employers to use weeks of TTD
accrued under the previous, unconstitutional IRE statute, Act 111’s credit provisions
violate the Pennsylvania Constitution’s due process and due course of law principles
[of the Remedies Clause] . . . .[12]” Specifically, we noted that “at issue here is
12
As we noted in DiPaolo:
(Footnote continued on next page…)
9
whether [the c]laimant has a vested right in the TTD status restored to her as of
February 2016 after the Protz cases struck the prior IRE statute, but before the
enactment of Act 111 in October 2018.” Id. at 434-35.13
In rejecting the claimant’s Due Process Clause and Remedies Clause
claims, we stated, in relevant part:
This Court squarely addressed this question in
Pierson. There, the claimant sustained a work-related
injury in 2014. 252 A.3d at 1172. In light of the Protz
cases, the claimant was not subject to an IRE and therefore
was on TTD status until December 2018, when the
employer sought an IRE after Act 111 became effective.
Id. The IRE returned an impairment rating of 3% and the
claimant’s status was modified to TPD as of the IRE date.
Id. The claimant preserved due process and due course of
law challenges to Act 111, which the WCJ and Board did
not rule on, recognizing their jurisdictional limitations. Id.
On the claimant’s appeal to this Court, we rejected the
claimant’s constitutional claims, holding that while a
workers’ compensation claimant does have a “certain right
to benefits until such time as he is found to be ineligible
for them,” there are also “reasonable expectations under
the Act that benefits may change.” Id. at 1179. We
explained that claimants did not “automatically lose
[A]lthough similar to the oft-used term “due process,” the term “due
course of law” has a distinct meaning in the Remedies Clause: “The
right to due process protects people against official deprivations of
liberty or property by the state, except by ‘law of the land.’ By
contrast, the right to ‘due course of law’ provides an independent
guarantee of legal remedies for private wrongs by one person against
another, through the state’s judicial system.”
DiPaolo, 278 A.3d at 434 (citations omitted).
13
This was the critical analysis underlying both constitutional claims because “[l]ike due
process, due course of law requires a party to establish a vested right impacted by a retroactive
statutory action, and the definition of a vested right is the same.” DiPaolo, 278 A.3d at 434
(citation omitted).
10
anything by the enactment of Act 111,” which “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 TTD benefits.” Id. at 1179.
Following our decision in Pierson, this Court has
consistently held that Act 111 does not abrogate or
substantially impair a claimant’s vested rights in workers’
compensation benefits because there is no right to ongoing
TTD status. See, e.g., Hutchinson[, 260 A.3d at 367]
(relying on Pierson to dismiss claimant’s constitutional
claims against Act 111).[14] In Sochko v. National Express
Transit Service (Workers’ Compensation Appeal Board)
[(Pa. Cmwlth., No. 490 C.D. 2021, filed March 16, 2022)],
we explained further:
[E]ven during the time when the previous IRE
provisions had been invalidated by the Protz cases
but before Act 111 became effective, employers
were not devoid of a means to modify a claimant’s
benefit status. Section 413(a) of the Act, which has
been part of our workers’ compensation legislation
since its beginning over 100 years ago, has always
provided employers (as well as claimants) with the
general ability to seek a change in benefits at any
time based on “proof that the disability of an injured
employe has increased, decreased, recurred, or has
temporarily or finally ceased.” 77 P.S. §772.
Section 306(b) of the Act, which also has roots in
the early decades of workers’ compensation law,
specifically enables employers to modify a
claimant’s disability status from total to partial by
showing that the claimant has regained some
earning power. 77 P.S. §512(2). Since the 1996
onset of more cost-efficient IREs, employers were
less likely to challenge a claimant’s status via
litigation, but the option was always available.
Thus, while it is true that “a claimant retains a
14
In his prior appeal, Claimant presented distinct constitutional claims from those that have
been raised herein. See Hutchinson, 260 A.3d at 366-67.
11
certain right to benefits until such time as he is
found to be ineligible for them,” claimants do not
acquire a vested right in total disability status at any
given time because that status has always been
subject to potential litigation by employers.
Id., slip op. at 12-13 [] (citations omitted). Notably, the
claimant is not without recourse, because Act 111
“specifically provides that a claimant placed in partial
disability status based on an IRE may challenge the change
in his or her status by either presenting a subsequent IRE
reflecting a 35% or more impairment rating or establishing
through litigation that his or her earning power has
decreased.” Id., slip op. at 13 n.10 [] (citing 77 P.S.
§511.3(3), (4)).
DiPaolo, 278 A.3d at 435-36 (citation to record and footnote omitted).15 Likewise,
we rely on the rationale of the foregoing authority that have continually and
consistently rejected claims such as those raised by Claimant herein to invalidate a
credit for the partial disability benefits paid under Section 3(2) of Act 111.
Although Claimant acknowledges the holdings of this Court in DiPaolo
and Pierson, he claims that they “were wrongly decided and that the arguments
raised by the claimants in DiPaolo and Pierson, and by Claimant herein, will be
accepted by the Pennsylvania Supreme Court.” Brief for Petitioner at 24. However,
15
See also DiPaolo, 278 A.3d at 438, wherein we noted:
[The c]laimant’s assertions rest on the proposition that when our
Supreme Court struck the previous IRE provisions in Protz [II], that
provision was void ab initio, as though it had never been enacted in
1996, and any claimant who underwent an IRE prior to the Protz
decisions was automatically restored to pre-IRE status. However,
our courts have never held that to be the case, and several decisions
have placed temporal limits on the application of Protz II. . . . Thus,
contrary to [the c]laimant’s assertions, we have never held that any
IRE preceding the Protz cases was automatically erased in its
entirety, including the weeks of benefits paid by employers for
claims arising prior to Act 111. [(Citations omitted).]
12
we will not accede to Claimant’s request to disregard this binding precedent that we
are required to follow,16 which supports our conclusion that the Board did not err in
affirming the WCJ’s decision dismissing Claimant’s Reinstatement Petition.
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
16
See, e.g., Piatek v. Pulaski Township, 828 A.2d 1164, 1171 n.11 (Pa. Cmwlth. 2003)
(“‘The rule of stare decisis declares that for the sake of certainty, a conclusion reached in one case
should be applied to those which follow, if the facts are substantially the same, even though the
parties may be different.’”) (citations omitted).
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Hutchinson, :
:
Petitioner :
:
v. : No. 314 C.D. 2022
:
Annville Township (Workers’ :
Compensation Appeal Board), :
:
Respondent :
ORDER
AND NOW, this 15th day of August, 2023, the order of the Workers’
Compensation Appeal Board dated March 22, 2022, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge