Document Info

DocketNumber: 1234 C.D. 2022

Judges: Wallace, J.

Filed Date: 1/11/2024

Status: Non-Precedential

Modified Date: 12/13/2024

  •                IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Keith Stanley,                        :
    Petitioner : No. 1234 C.D. 2022
    : Submitted: May 19, 2023
    v.                         :
    :
    Department of Transportation          :
    (Workers’ Compensation Appeal         :
    Board),                               :
    Respondent :
    BEFORE:          HONORABLE ANNE E. COVEY, Judge
    HONORABLE MICHAEL H. WOJCIK, Judge
    HONORABLE STACY WALLACE, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE WALLACE                                              FILED: January 11, 2024
    Keith Stanley (Claimant) petitions for review of the October 12, 2022 order of
    the Workers’ Compensation Appeal Board (Board) which affirmed the Workers’
    Compensation Judge’s (WCJ) April 26, 2022 order granting the Department of
    Transportation’s (Employer) Petition to Modify Compensation Benefits (Modification
    Petition) filed under the Workers’ Compensation Act (Act).1 Claimant presents several
    constitutional issues for this Court’s consideration. Upon review, we affirm.
    1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
    I. Factual and Procedural Background
    On August 22, 2017, Claimant injured his back in the course and scope of his
    employment. On September 13, 2017, Employer issued an Amended Notice of
    Compensation Payable (NCP), acknowledging Claimant’s injury as a contusion to the
    lower back area. As of August 24, 2017, Claimant began receiving temporary total
    disability (TTD) benefits based on his average weekly wage.
    On October 3, 2019, after Claimant received TTD for over 104 weeks,
    Employer requested the Bureau of Workers’ Compensation (Bureau) designate a
    physician to perform an Impairment Rating Evaluation (IRE) of Claimant. Reproduced
    Record (R.R.) at 136a. The Bureau designated Dr. Scott Naftulin (Dr. Naftulin) to
    perform the evaluation. Id. On May 5, 2020, the Bureau issued a notice the IRE would
    take place July 6, 2020. Id. Claimant did not attend the scheduled IRE and on July 7,
    2020, Employer filed a Physical Examination Petition. On May 10, 2021, the WCJ
    granted Employer’s Physical Examination Petition and ordered Claimant to attend an
    IRE “to be scheduled by [Employer] upon request pursuant to the Act.” Id. at 140a.
    On June 7, 2021, Dr. Naftulin performed an IRE of Claimant and opined
    Claimant’s full body impairment was 21%. Id. at 176a. Based on the results of the
    IRE, Employer filed a Modification Petition seeking to change Claimant’s benefits
    from TTD to temporary partial disability (TPD).
    The WCJ granted Employer’s Modification Petition, and on appeal, the Board
    affirmed. Claimant now seeks review in this Court. Claimant raises several issues on
    appeal, all of which challenge the constitutionality of Act 111.2 First, Claimant asserts
    Act 111 is an unconstitutional delegation of legislative authority. Next, he claims Act
    111 should not apply to his injury, which occurred before Act 111’s enactment.
    2
    Act of October 24, 2018, P.L. 714, No. 111 (Act 111).
    2
    Finally, Claimant argues Act 111 violates his vested right to be free of the IRE process,
    a process Claimant believes is unconstitutional.
    II.      Discussion
    This Court reviews workers’ compensation orders for violations of the
    petitioner’s constitutional rights, violations of agency practice and procedure, and other
    errors of law. 2 Pa.C.S. § 704. Claimant does not argue the Board made any particular
    error when it affirmed the WCJ’s decision and order.                       Instead, Claimant raises
    constitutional issues. As the Board noted, “[a]ppellate review by the Board does not
    include constitutional issues.” Bd. Op. at 3 (citing Ligonier Tavern, Inc. v. Workers’
    Comp. Appeal Bd. (Walker), 
    714 A.2d 1008
     (Pa. 1998)).
    After this Court, affirmed by the Pennsylvania Supreme Court, declared the IRE
    provision in former Section 306(a.2) of the Act, added by the Act of June 24, 1996,
    P.L. 350, formerly 77 P.S. § 511.2, repealed by Act 111, an unconstitutional delegation
    of legislative authority, the General Assembly enacted Act 111. Act 111 repealed the
    unconstitutional IRE provision and replaced it with a new IRE provision, Section
    306(a.3), 77 P.S, § 511.3.3 Since its enactment, Courts in Pennsylvania have addressed
    and rejected many challenges to the constitutionality of Act 111.
    3
    Section 306(a.3)(1) of the Act, added by Act 111, provides:
    When an employe has received total disability compensation pursuant to clause (a)
    for a period of one hundred and four weeks, unless otherwise agreed to, the employe
    shall be required to submit to a medical examination which shall be requested by
    the insurer within sixty days upon the expiration of the one hundred and four 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 licensed in this Commonwealth, who is certified by an American Board of
    Medical Specialties-approved board or its osteopathic equivalent and who is active
    in clinical practice for at least twenty hours per week, chosen by agreement of the
    parties, or as designated by the department, pursuant to the American Medical
    (Footnote continued on next page…)
    3
    Claimant’s first argument is that Act 111 is an unconstitutional delegation of
    legislative authority.        However, this       Court   in   Pennsylvania      AFL-CIO    v.
    Commonwealth, 
    16 A.3d 306
     (Pa. Cmwlth. 2019), concluded Act 111 is not an
    unconstitutional delegation of legislative authority, which Claimant acknowledged in
    his brief. See Claimant’s Br. at 16 n.1. In Pennsylvania AFL-CIO, we explained:
    The non-delegation doctrine does not prohibit the General Assembly from
    “adopting as its own a particular set of standards . . . .” [T]he General
    Assembly is exercising its legislative and policy making authority by
    deciding that it is those particular standards that will become the law of
    this Commonwealth. It is not delegating its authority to legislate. The
    General Assembly made a policy decision regarding the standards that
    will apply to IREs in the Commonwealth going forward.
    Pennsylvania AFL-CIO, 219 A.3d at 316 (emphasis added). Given the clear holding
    in Pennsylvania AFL-CIO that Act 111 is not an unconstitutional delegation of
    legislative authority, we conclude the Act did not violate Claimant’s constitutional
    rights.
    Claimant next asserts Act 111 should not apply to his injury, which occurred
    before Act 111’s enactment. In Pierson v. Workers’ Compensation Appeal Board
    (Consol Pennsylvania Coal Company LLC), 
    252 A.3d 1169
     (Pa. Cmwlth. 2021), this
    Court held Act 111 could apply to injuries occurring before its enactment. In Pierson,
    we explained:
    While [the claimant], here, argues that he has a right to benefits as
    calculated at the time of injury, there are reasonable expectations under
    the Act that benefits may change. We acknowledge that a claimant retains
    a certain right to benefits until such time as he is found to be ineligible for
    Association “Guides to the Evaluation of Permanent Impairment,” 6th edition
    (second printing April 2009).
    77 P.S. § 511.3(1).
    4
    them. However, claimants, such as the one in the matter before us, did not
    automatically lose anything by the enactment of Act 111. Act 111 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.
    Pierson, 252 A.3d at 1179.
    Here, Claimant’s injury occurred in 2017, Act 111 became effective in 2018,
    and Dr. Naftulin performed the IRE of Claimant in 2020. As in Pierson, Claimant’s
    injury occurred before the enactment of Act 111. This Court held Act 111 and its IRE
    provisions applied in Pierson. We conclude they also apply to Claimant in this case,
    and there is no violation of Claimant’s constitutional rights.
    Lastly, Claimant argues Act 111 violates his vested right to be free of the IRE
    process. A vested right is a right that “so completely and definitely belongs to a person
    that it cannot be impaired or taken away without the person’s consent.” Pierson, 252
    A.3d at 1179 (citation omitted). It is “something more than a mere expectation based
    upon an anticipated continuance of existing law.” Bible v. Dep’t of Lab. & Indus., 
    696 A.2d 1149
    , 1155 (Pa. 1997) (citation omitted). Our Supreme Court struck former
    Section 306(a.2) of the Act in its entirety, after finding the General Assembly
    unconstitutionally delegated its lawmaking authority in violation of the non-delegation
    doctrine of the Pennsylvania Constitution. Protz v. Workers’ Comp. Appeal Bd. (Derry
    Area Sch. Dist.), 
    161 A.3d 827
     (Pa. 2017) (Protz II). The Supreme Court did not hold
    the IRE process, itself, was unconstitutional.       Following Protz II, the General
    Assembly repealed Section 306(a.2) of the Act and reestablished the IRE process by
    replacing it with Section 306(a.3). As we explained in Pennsylvania AFL-CIO, “[t]he
    General Assembly made a policy decision regarding the standards that will apply to
    IREs in the Commonwealth going forward.” Pennsylvania AFL-CIO, 219 A.3d at 316.
    The IRE provides employers with the means to change a claimant’s disability status
    5
    based upon medical evidence. There is no vested right for an individual to be free of
    the IRE process when receiving benefits under the Act. Claimant’s IRE was performed
    pursuant to the standards then in effect and the process did not violate any vested or
    constitutional right of Claimant.
    Claimant’s challenges to the constitutionality of Act 111 do not succeed, and we
    affirm the Board.
    ______________________________
    STACY WALLACE, Judge
    6
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Keith Stanley,                        :
    Petitioner : No. 1234 C.D. 2022
    :
    v.                         :
    :
    Department of Transportation          :
    (Workers’ Compensation Appeal         :
    Board),                               :
    Respondent :
    ORDER
    AND NOW, this 11th day of January 2024, the October 12, 2022 order of the
    Workers’ Compensation Appeal Board is AFFIRMED.
    ______________________________
    STACY WALLACE, Judge