E. Kittles v. City of Philadelphia (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eugene Kittles, :
:
Petitioner :
:
v. : No. 1058 C.D. 2023
: Submitted: July 5, 2024
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
:
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE MATTHEW S. WOLF, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: September 17, 2024
Eugene Kittles (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 City of Philadelphia’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 or
1
Act of June 2, 1915, P.L. 736, as amended, added by Act of October 24, 2018, P.L. 714,
No. 111, 77 P.S. §511.3.
partial in nature and providing that an impairment rating of less than 35% constitutes
a partial disability. Upon review, we affirm.
I. Background
The facts are not in dispute. On August 12, 2015, Claimant sustained
a work-related injury to his left leg while working for Employer as a police officer.
Employer accepted liability for the injury by issuing a Notice of Compensation
Payable, which described the injury as “left leg strain and twist resulting in
swelling.” Reproduced Record (R.R.) at 102a.
On October 18, 2021, Employer filed a Modification Petition seeking
to change Claimant’s disability status from total to partial under Act 111 based on
the results of an IRE performed by Michael Fischer, D.O. (Dr. Fischer), on
September 9, 2021, which yielded an impairment rating of less than 35%. Employer
also filed a Modification/Suspension Petition based on alleged self-employment
arising from Claimant’s receipt of rental income. Claimant denied the material
allegations in Employer’s petitions and raised constitutional challenges.
Before the WCJ, and in support of its Modification Petition, Employer
presented Dr. Fischer’s January 18, 2022 deposition testimony and his IRE report.
After reviewing Claimant’s medical history and records, and performing a physical
examination, Dr. Fischer opined that Claimant had reached maximum medical
improvement and had a whole-person impairment rating of 5%. The WCJ credited
the testimony and opinions of Dr. Fischer and accepted his opinions as fact.
By decision and order circulated on January 9, 2023, the WCJ granted
Employer’s Modification Petition and modified Claimant’s benefit status from total
disability to partial disability effective September 9, 2021, the date of the IRE. As
2
for Claimant’s constitutional challenge, the WCJ stated that he lacked jurisdiction to
address Claimant’s constitutional challenges but noted that Act 111 and the IRE
process have been upheld as constitutional. The WCJ also denied and dismissed
Employer’s Modification/Suspension Petition, which is not at issue in this appeal.
Both the Claimant and Employer appealed to the Board, which
affirmed. Before the Board, Claimant reasserted his constitutional challenges.
Specifically, Claimant argued that Act 111’s retroactive application to a work injury
occurring before its enactment violates the Remedies Clause of the Pennsylvania
Constitution, Pa. Const. art. I, §11. Claimant also argued that Act 111 violates the
Nondelegation Doctrine embodied in article II, section 1 of the Pennsylvania
Constitution, Pa. Const. art. II, §1. In response, the Board stated that, as an
administrative agency, it lacked authority to declare a statute unconstitutional.
Nevertheless, the Board noted that this Court has previously addressed and rejected
similar constitutional challenges. Board Op., 8/22/23, at 6-7 (citing Hutchinson v.
Annville Township (Workers’ Compensation Appeal Board), 260 A.3d 360 (Pa.
Cmwlth. 2021); Pierson v. Workers’ Compensation Appeal Board (Consol
Pennsylvania Coal Co., LLC), 252 A.3d 1169 (Pa. Cmwlth. 2021); and Rose Corp.
v. Workers’ Compensation Appeal Board (Espada), 238 A.3d 551 (Pa. Cmwlth.
2020)). Claimant’s appeal to this Court now follows.2, 3
2
Employer did not petition for review. Employer submits that this Court should affirm the
Board’s decision in its entirety. See Respondent’s Brief at 3.
3
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).
3
II. Issues
Claimant asserts that the retroactive application of Act 111 to work
injuries that occurred before its effective date, October 24, 2018, violates the
Remedies Clause of the Pennsylvania Constitution. According to Claimant, this
retroactive application 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. Because Act 111 was passed
after Claimant’s work injury, and does not contain 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. In
addition, Claimant contends that Act 111 amounts to an unconstitutional delegation
of legislative authority.
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. §511.2,4 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 v. Workers’ Compensation Appeal
Board (Derry Area School District), 161 A.3d 827 (Pa. 2017).5 Act 111 largely
4
Added by the Act of June 24, 1996, P.L. 350.
5
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
(Footnote continued on next page…)
4
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).
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 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).
A. Remedies Clause
We first address Claimant’s familiar claim that the retroactive
application of Act 111 to work injuries occurring before its effective date, October
24, 2018, violates the Remedies Clause of the Pennsylvania Constitution.
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. . . .
Court held that this amounted to an unconstitutional delegation to the AMA of the General
Assembly’s lawmaking power because the AMA could revise the standards for determining
impairment at any time with unfettered discretion. Id. at 841.
5
Pa. Const. art. I, §11. As interpreted, “the Remedies Clause prohibits the enactment
of retroactive legislation[6] if the application . . . would extinguish a vested right.”
Kondidaris v. Portnoff Law Associates, Ltd., 953 A.2d 1231, 1235 (Pa. 2008).
“[W]here no vested right . . . is involved, an act is not retroactively construed when
applied to a condition existing on its effective date even though the condition results
from events prior to that date.” Pierson, 252 A.3d at 1175 (citation and quotation
omitted).
In Rose Corp., this Court ruled that Act 111 applies to injuries that
occurred before its October 24, 2018 enactment date, but not to IREs performed prior
thereto. 238 A.3d at 561. Thereafter, in Pierson, we held that the application of Act
111 to injuries predating its enactment does not violate a claimant’s vested rights
under the Remedies Clause. 252 A.3d at 1175. We observed that “there are
reasonable expectations under the Act that benefits may change.” Id. at 1177. We
explained that Act 111 does not impose new legal burdens on a past transaction or
occurrence or otherwise change the status of a claimant’s workers’ compensation
benefits. Id. at 1179. Rather, Act 111 merely provides employers with a mechanism
to modify “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 [total temporary disability] benefits.” Id. at 1179.
6
Retroactive legislation
“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 and Industry, Bureau of
Employment Security v. Pennsylvania Engineering Corp., 421 A.2d 521, 523 (Pa. Cmwlth. 1980)).
6
In Hutchinson, 260 A.3d at 366-67, this Court reaffirmed this holding.
Despite numerous requests to revisit our holding in Pierson, claiming it was wrongly
decided, we have repeatedly declined to do so. See, e.g., Dunetz v. Charles H. Sacks
D.M.D., P.C. (Workers’ Compensation Appeal Board), 304 A.3d 134, 142-43 (Pa.
Cmwlth. 2023) (en banc), appeal denied, (Pa., No. 617 MAL 2023, filed June 24,
2024); DiPaolo v. UPMC Magee Women’s Hospital (Workers’ Compensation
Appeal Board), 278 A.3d 430, 435 (Pa. Cmwlth. 2022), appeal denied, (Pa., No. 191
WAL 2022, filed January 3, 2023); see also Bernard v. City of Philadelphia
(Workers’ Compensation Appeal Board) (Pa. Cmwlth., No. 886 C.D. 2023, filed
August 13, 2024) (rejecting identical arguments raised here); Dixon v. City of
Philadelphia (Pa. Cmwlth., No. 1000 C.D. 2022, filed June 7, 2024), slip op. at 5-7
(identifying numerous cases rejecting similar constitutional claims).7 Claimant does
not proffer a persuasive reason why we should revisit our holding in Pierson and its
progeny. See Bernard. 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 once again reject this
constitutional challenge.
B. Nondelegation Doctrine
Turning to whether Act 111 constitutes an unconstitutional delegation
of legislative authority, this Court has similarly considered and rejected this claim.
7
Unreported memorandum opinions of this Court filed after January 15, 2008, may be
cited for their persuasive value pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate
Procedure, Pa. R.A.P. 126(b), and Section 414(a) of the Court’s Internal Operating Procedures,
210 Pa. Code §69.414(a).
7
The Nondelegation Doctrine is embodied in article II, section 1 of the Pennsylvania
Constitution, which provides: “The legislative power of this Commonwealth shall
be vested in a General Assembly, which shall consist of a Senate and a House of
Representatives.” Pa. Const. art. II, §1. The Nondelegation Doctrine “forbids
entities other than the legislative branch from exercising ‘legislative power,’ as those
entities do not have ‘the power to make law.’” Corman v. Acting Secretary of
Pennsylvania Department of Health, 266 A.3d 452, 460 n.3 (Pa. 2021) (quoting
Protz, 161 A.3d at 833).
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. “The standards adopted
were not ‘unseen’ or unknown to the General Assembly at the time it enacted Section
306(a.3)” of the Act. Id. at 316. “When such an adoption occurs, the General
Assembly is exercising its legislative and policy making authority by deciding
. . . those particular standards that will become the law of this Commonwealth.” Id.
It is not delegating its authority to legislate. Id. Based on Pennsylvania AFL-CIO,
we again reject Claimant’s argument that Section 306(a.3) violates the
Nondelegation Doctrine. See Bernard.
IV. Conclusion
Accordingly, we affirm the Board’s order.
MICHAEL H. WOJCIK, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eugene Kittles, :
:
Petitioner :
:
v. : No. 1058 C.D. 2023
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
:
Respondent :
ORDER
AND NOW, this 17th day of September, 2024, the order of the Workers’
Compensation Appeal Board, dated August 22, 2023, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge