PA Update – PA Commonwealth Court holds that Act 111 provisions granting employers credit for previously paid benefit weeks do not violate PA Constitution
The Commonwealth Court in a Memorandum Opinion Issued on May 25, 2022 by President Judge Jubelirer found Act 111 provisions granting employers credit for previously paid benefit weeks does not violate either due process or due course of law principles. In addition, the Court held that by reenacting the IRE process, Act 111 did not violate Article III, Section 18 of the Pennsylvania Constitution. C. Fischer v. City of Philadelphia (WCAB), No. 1011 C.D. 2021.
A Judge granted a Modification Petition filed by Claimant’s employer, the City of Philadelphia. The claimant appealed arguing the IRE (Impairment Rating Evaluation) upon which the modification request was based was performed pursuant to an unconstitutional law (Act 111).
The claimant suffered a work-related injury on April 19, 2013. The employer issued a Notice of Compensation Payable accepting the work injury. On June 18, 2020, the employer filed a Modification Petition seeking to change the claimant’s benefits from temporary total disability to temporary partial disability based upon an IRE performed on June 3, 2020. The doctor performing the evaluation opined the claimant reached maximum medical improvement (MMI) and based upon the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Sixth Edition, 2nd printing concluded the claimant’s whole personal impairment equals 1%.
In the proceeding before the Judge the claimant did not offer any medical evidence to challenge his impairment rating. Rather, he argued the Petition should be denied because he had yet to receive 104 weeks of total disability as required by Act 111. He alleged approximately 86 weeks had passed since the Act’s enactment on October 24, 2018 and crediting the employer with 20 weeks of total disability paid before Act 111 was enacted was unconstitutional.
The Judge in his holding concluded he did not have jurisdiction to determine the constitutionality of Act 111. He indicated the plain language of the Act did not state the 104-week period would begin to run as of October 24, 2018, the effective date of the statute. He held the examining physician’s IRE report was credible and persuasive and claimant had reached MMI and had a whole-body impairment of 1%. Therefore, the Judge found the claimant was temporarily partially disabled as of June 3, 2020, the date of the IRE. The claimant appealed to the board. He argued the application of Act 111 to him was unconstitutional and, even if it did apply to injuries predating its enactment, 104 weeks did not pass at the time the modification petition was filed rendering it premature. The Board stated its review did not encompass constitutional issues which were outside of its jurisdiction. The Board went on to state Pennsylvania Appellate Courts had already addressed the constitutionality of Act 111 (Pierson v. Workers’ Compensation Board (Consol Pennsylvania Coal Company LLC), 252 A.3d 1169 (Pa. Cmwlth 2021)). Therefore, the Board held Section 3(1) of Act 111 gives employers and insurers credit for weeks of compensation previously paid. It rejected the claimant’s arguments and affirmed the Judge’s decision. The claimant appealed to the Commonwealth Court.
On appeal, the claimant argued before the Court that Act 111 constituted a substantive amendment to the Act in that it changed how disability benefits were determined and changed the limits of how long an injured worker could receive those benefits. He asserted this violated the injured worker’s vested rights. He also argued that Act 111 allowed for employers or insurers to receive credit for weeks of indemnity benefits which pre-dated Act 111’s enactment which was also unconstitutional. He contended retroactive application of Act 111 would divest him of a vested, property right in violation of due process and the right to due course of law under the remedies clause of Article 1, Section 11 of the Pennsylvania Constitution. While the claimant agreed that the Court had previously rejected a constitutional attack on Act 111 in Pierson, he was nonetheless asking the Court to reconsider that prior decision. The employer argued that the court had already determined Act 111 was constitutional and should apply in situations as the one before the Court. The employer argued the Court had previously concluded Act 111 provided for a credit to employers and insurers for weeks of compensation previously paid prior to its effective date in Rose Corporation v. Workers’ Compensation Appeal Board (Espada), 238 A.3d 551 (Pa. Cmwlth. 2020). Finally, the employer pointed out the constitutionality of Act 111 was most recently challenged on similar grounds as those presented in this case and was upheld in Pierson.
Initially the court noted while claimant stated in his Petition for Review that the Board and the Judges’ determination were not supported by substantial evidence, that issue was not preserved in the claimant’s appeal to the board. Furthermore, the claimant did not appear to pursue that argument as there was no discussion of that issue in his Brief. Therefore, the Court indicated that argument had been waived.
The Court indicated the demise of former section 306(a.2) and the enactment of Section 306(a.3) through Act 111 had been thoroughly explained in numerous prior decisions of the Court. The Court noted under Section 306(a.3) (1) an employee who has received total disability compensation for a period of 104 weeks shall be required to submit to an IRE upon request. Thereafter if that examination yields an impairment rating equal to or greater than 35% under the Guides, the employee is then presumed to be totally disabled and continues to receive total disability compensation. However, if the impairment rating is less than 35% the employee is then deemed to be entitled to a partial disability benefits and those are limited to 500 weeks. The Court stated that the current matter before it was controlled by its prior decision in Pierson. In that case, the claimant underwent an IRE and his disability status was modified to partial after the enactment of Act 111. He raised several of the same arguments the claimant was raising before the Court in the current case. The claimant in Pierson argued the IRE was invalid as he had not received 104 weeks of TPD after Act 111 was enacted. He also argued that the Act was a substantive, not procedural change in the law and thus could not be applied retroactively. Finally, he argued Act 111 violated his vested right to benefits as secured by due process in the remedy clause of the Pennsylvania Constitution.
The court rejected those arguments of the claimant. It cited Rose Corporation and explained Act 111 plainly applied credit of weeks of temporary and partial disability benefits previously paid and the General Assembly explicitly provided the credit provisions were to be given retroactive effect. The Court held the claimant’s vested rights had not been abrogated by Act 111 because there are reasonable expectations under the Act that benefits may change. The Court explained that Act 111 did not automatically strip a claimant of any rights, rather, Act 111 provided employers with a mechanism to modify a claimant’s disability status from total to partial. The Court noted despite numerous invitations from claimants to revisit their holding in Pierson they had declined to do so. The Court confirmed that their analysis in Pierson was directly applicable and controlling in the present matter. Therefore, the claimant’s constitutional challenges to the Act were rejected and the Board and Judge’s decision were affirmed.
Subsequently, the Court issued a published opinion A. DiPaolo v. UPMC Magee Women’s Hospital (Workers’ Compensation Appeal Board), No. 878 C.D. 2021 on June 13, 2022, with the same holding. Future Modification Petitions by Claimants’ bar regarding this issue should be reduced.
