The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sandra Tufano, :
Petitioner :
:
v. : No. 803 C.D. 2021
: Submitted: February 11, 2022
Tammy L. Clause, P.C. (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: May 13, 2022
Sandra Tufano (Claimant) petitions for review of an order of the Workers’
Compensation Appeal Board (Board), which affirmed the decision of the Workers’
Compensation Judge (WCJ) granting Tammy L. Clause, P.C.’s (Employer) petition
to modify compensation benefits (Modification Petition). On appeal, Claimant
argues that the WCJ and Board erred by concluding that Claimant had reached
Maximum Medical Improvement (MMI) as of the date of her Impairment Rating
Evaluation (IRE) despite testimony from her treating orthopedist that she had not
met MMI. Additionally, Claimant argues that Section 306(a.3) of the Pennsylvania
Workers’ Compensation Act (Act),1 77 P.S. § 511.3, violates the Remedies Clause
of the Pennsylvania Constitution.2 After review, we affirm.
I. Background
In February 2015, while employed as a paralegal, Claimant sustained a
work-related soft tissue neck strain. Reproduced Record (R.R.) at 105a. Employer
acknowledged Claimant’s injury by issuing a Notice of Compensation Payable
(NCP). Id.
In April 2017, Claimant underwent an IRE per former Section 306(a.2) of the
Act,3 which was the applicable section of the Act at the time. R.R. at 113a.
Claimant’s IRE resulted in a whole-body impairment rating of less than 50%. Id.
1
Act of June 2, 1915, P.L. 736, as amended, added by Act of October 24, 2018, P.L. 714,
No. 111 (Act 111), 77 P.S. §511.3.
2
The Remedies Clause is the common reference to article I, section 11 of the Pennsylvania
Constitution, which provides, in pertinent part: “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.”
3
Former Section 306(a.2) of the Act, formerly 77 P.S. §511.2, read, in pertinent part:
When an employe has received total disability compensation pursuant to clause (a)
for a period of one hundred four weeks . . . the employe shall be required to submit
to a medical examination . . . 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 . . . pursuant to the most recent edition of
the American Medical Association “Guides to the Evaluation of Permanent
Impairment” . . . . (2) If such determination results in an impairment rating that
meets a threshold impairment rating that is equal to or greater than fifty per centum
. . . 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 fifty per centum impairment . . . the employe shall
then receive partial disability benefits under clause (b) . . . .
Former Section 306(a.2)(1) of the Act, as amended, added by Section 4 of the Act of June 24,
1996, P.L. 350, formerly 77 P.S. §511.2, repealed by the Act. “Clause (b)” referenced above
provides for payment of partial disability for no more than 500 weeks. Section 306(b)(1) of the
Act, 77 P.S. §512(1), limits a claimant’s receipt of partial disability benefits to 500 weeks.
2
As a result, Employer converted Claimant’s disability status from temporary total
disability (TTD) to partial disability. Id. On June 20, 2017, however, our Supreme
Court issued its decision in Protz v. Workers’ Compensation Appeal Board (Derry
Area School District), 161 A.3d 827 (Pa. 2017),4 holding that the IRE provisions in
former Section 306(a.2) of the Act violated the non-delegation doctrine of the
Pennsylvania Constitution.5 In response to the holding in Protz II, Claimant sought
to reinstate her benefits from partial disability to TTD. R.R. at 105a. On October 3,
2017, the WCJ approved a stipulation between the parties reinstating Claimant’s
TTD status. Id.
In response to the Protz II decision and to reestablish the IRE process, on
October 24, 2018, the General Assembly enacted Act 111, which took immediate
effect. Act 111 replaced former Section 306(a.2), formerly 77 P.S. §511.2, with
Section 306(a.3) of the Act, 77 P.S. § 511.3.6 Section 306(a.3) of the Act reads, in
pertinent part:
When an employe has received total disability compensation pursuant
to clause (a) for a period of one hundred four weeks . . . the employe
shall be required to submit to a medical examination . . . 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 . . . pursuant to the most recent edition of American
Medical Association “Guides to the Evaluation of Permanent
Impairment,” [(the Guides)] 6th edition (second printing April 2009) .
4
Commonly referred to as Protz II.
5
The Pennsylvania Constitution article II, section 1, states: “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 Court reasoned that the General Assembly had
delegated its legislative authority to the American Medical Association (AMA) and struck Section
306(a.2) in its entirety from the Act. Protz, 161 A.3d 827.
6
Added by the Act of October 24, 2018, P.L. 714, No. 111, 77 P.S. §511.3.
3
. . . (2) If such determination results in an impairment rating that meets
a threshold impairment rating that is equal to or greater than thirty-five
per centum . . . 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
thirty-five per centum impairment . . . the employe shall then receive
partial disability benefits under clause (b) . . . .
Section 306(a.3) of the Act, 77 P.S. §511.3.
Subsequent to Section 306(a.3)’s enactment, on September 11, 2019,
Claimant underwent an IRE with Dr. Lucian Bednarz (Bednarz) at Employer’s
request, as required under Section 306(a.3)(1) of the Act, 77 P.S. §511.3(1). R.R. at
109a. The IRE yielded an impairment rating of 6% whole body impairment. R.R.
at 105a, 109a. Based on this impairment rating, Employer filed a Modification
Petition seeking to change Claimant’s disability status from TTD to partial disability.
R.R. at 105a.
At the hearing before the WCJ, Employer presented Bednarz’s deposition.
Bednarz is board certified in physical medicine and rehabilitation. Bednarz testified
that he is certified to perform IREs in Pennsylvania and that he conducted Claimant’s
September 11, 2019 IRE. R.R. at 106a. He testified that he used the Sixth Edition
of the Guides Second Printing as required under the Act. R.R. at 105a. Bednarz was
aware that Claimant had two surgeries in relation to her injury, the first in November
2017 and the second in June 2019. R.R. at 69a. He reviewed Claimant’s various
medical records, which included physical therapy records, physician records,
chiropractic records, radiographic records, and the operative report and office notes
from Dr. Mark Knaub (Knaub), Claimant’s treating board-certified orthopedic
surgeon. R.R. at 106a.
Bednarz opined that Claimant’s June 2019 surgery was successful, basing his
conclusion on Knaub’s post operative notes showing that Claimant healed well.
4
R.R. at 106a. Bednarz determined that Claimant had reached MMI, concluding that
a change would not be expected in Claimant’s functional impairment in the
immediate future, 12 months. Id. Based on Claimant’s diagnoses and treatments,
which included the cervical fusion, Bednarz concluded that MMI was reached
clinically and that Claimant has a 6% whole body impairment rating. R.R. at 105a-
06a.
Claimant presented Knaub’s deposition. R.R. at 106a. Knaub performed
Claimant’s first surgery to treat her herniated disc and her second surgery to relieve
symptoms related to the failure of fusion after the first surgery. R.R. at 9a. Knaub
testified the second surgery, performed in June 2019, was successful
radiographically, with a successful fusion. R.R. at 107a. Knaub reviewed the IRE
conducted by Bednarz and opined that Claimant had not reached MMI as of the
September 2019 IRE, because MMI typically does not occur after this type of
cervical fusion until 12 to 18 months after surgery. Id.
At the hearing, Claimant testified that Knaub remained her treating physician.
R.R. at 107a. She testified she continues to experience pain in her neck, traveling
through her left shoulder and into her arm, which affects her ability to do things
around the house and interferes with her ability to sleep. Id. She also indicated that
she continues to utilize medications for pain. Id.
After the hearing, the WCJ concluded that Employer met its burden of proof
under 77 P.S. §511.3(1) and granted Employer’s Modification Petition. The WCJ
“accept[ed] the testimony and opinion of [ ] Bednarz as more competent, credible,
and worthy of belief,” than the testimony of Knaub. R.R. at 108a. The WCJ found
that “Knaub, while a well-respected orthopedist, is not qualified to perform IREs,
nor was he familiar with the definition of MMI under the provisions of [the Guides].”
5
Id. The WCJ specifically rejected Knaub’s testimony “in light of the more credible
testimony of [ ] Bednarz, who is certified to do IREs in Pennsylvania.” Id.
Additionally, the WCJ rejected Claimant’s constitutional argument and found that
Claimant failed to meet her burden of proof to establish any constitutional challenge
to Act 111. R.R. at 109a. Accordingly, the WCJ granted the Modification Petition,
modifying Claimant’s benefits from TTD to partial disability as of September 11,
2019, the date of Claimant’s IRE. Claimant subsequently appealed to the Board.
The Board rejected Claimant’s challenges on appeal. First, the Board rejected
Claimant’s argument that the WCJ erred by concluding Employer met its burden of
proving Claimant had reached MMI. R.R. at 120a. The Board noted that the WCJ
found the testimony of Bednarz to be credible and rejected Knaub’s contrary opinion
relative to Claimant’s MMI. Id. The Board added that the WCJ is the ultimate fact
finder, and because the WCJ’s findings were supported by substantial, competent
evidence, they are conclusive on appeal. Id. Second, the Board relied on this Court’s
prior decisions, including our decision in Pierson v. Workers’ Compensation Appeal
Board (Consol Pennsylvania Coal Co., LLC), 252 A.3d 1169 (Pa. Cmwlth.), appeal
denied, 261 A.3d 378 (Pa. 2021), to reject Claimant’s constitutional challenges to
Section 306(a.3) of the Act. The Board noted that the Pierson Court rejected a
similar constitutional argument to the one Claimant makes here, holding that the
“[c]laimant’s ‘vested rights’ have not been abrogated by” Section 306(a.3) of the
Act. R.R. at 118a. (quoting Pierson, 252 A.3d at 1180).
Claimant now petitions this Court for review. In her petition, Claimant raises
two issues. First, Claimant argues that the Board’s order, which affirmed the WCJ’s
finding that Claimant had reached MMI as of September 11, 2019, was not supported
by substantial, competent evidence. Second, Claimant asserts that Section 306(a.3)
6
of the Act, 77 P.S. 511.3, is unconstitutional as it deprives Claimant of a vested
statutory right in violation of the Remedies Clause of the Pennsylvania Constitution.
We disagree.
II. Discussion
Our standard of review of a Board order limits us to determining whether the
necessary findings of fact are supported by substantial evidence, whether an error of
law or a violation of Board procedure has occurred, or whether constitutional rights
were violated. Republic Steel Corp. v. Workmen’s Comp. Appeal Bd. (Petrisek), 640
A.2d 1266, 1268 (Pa. 1994). The findings of the WCJ can only be disturbed if there
is no substantial evidence to support them. Universal Cyclops Steel Corp. v.
Workmen’s Comp. Appeal Bd. (Krawczynski), 305 A.2d 757 (Pa. Cmwlth.
1973). The WCJ is free to accept or reject, in whole or in part, the testimony of any
witness, including medical witnesses. Greenwich Collieries v. Workmen’s Comp.
Appeal Bd. (Buck), 664 A.2d 703 (Pa. Cmwlth. 1995). Determinations of credibility
and the weight to be afforded evidence are the prerogative of the WCJ. Vols v.
Workmen’s Comp. Appeal Bd. (Alperin, Inc.), 637 A.2d 711 (Pa. Cmwlth. 1994).
In her first argument, Claimant asserts the Board erred by affirming the WCJ’s
decision that Claimant reached MMI as of the date of her IRE. The WCJ accepted
Bednarz’s testimony as more credible than Knaub’s testimony, finding that Claimant
had reached MMI as of the date of the IRE. R.R. at 108a. The WCJ found that,
while Knaub is a “well-respected orthopedist,” he was not qualified to perform IREs
and was not familiar with the definition of MMI in the Guides. Id. In addition, the
WCJ found that Bednarz’s testimony that Claimant’s June 2019 surgery was
successful was corroborated by radiographic evidence. Id. The WCJ did not accept
Knaub’s opinions as credible regarding Claimant not having reached MMI. Id.
7
Upon a review of the record, we conclude that there was substantial evidence to
support the WCJ’s findings and the Board’s conclusions. Accordingly, the record
supports the Board’s order affirming the WCJ’s decision.
In her second argument, Claimant asserts that Section 306(a.3) of the Act is
unconstitutional because it violates the Remedies Clause of the Pennsylvania
Constitution by depriving her of a vested right, i.e., the continuation of her workers’
compensation benefits. Specifically, Claimant argues that Employer was required
to wait 104 weeks from the effective date of Section 306(a.3) of the Act before
obtaining an IRE. Claimant relies on Giant Eagle, Incorporated v. Workers’
Compensation Appeal Board (Weigand), 764 A.2d 663 (Pa. Cmwlth. 2000),
asserting that “[o]nce initiated, [w]orkers’ [c]ompensation wage loss benefits are
vested rights[,]” and that “[t]he language of the Remedies Clause protects every
man’s ability to recover for . . . tort or contract injuries,” and “statutory law cannot
retroactively affect a vested right.” Claimant’s Br. at 12-13 (citing Konidaris v.
Portnoff Law Associates, Ltd., 953 A.2d 1231 (Pa. 2008)).
As the Board noted, we recently addressed the issue of the retroactive
application of Section 306(a.3) of the Act in Pierson, 252 A.3d 1169. In Pierson,
the claimant argued that Section 306(a.3) of the Act could not be applied
retroactively to affect the 500 weeks of benefits payable for partial disability by
giving the employer credit for payments made before its effective date. Pierson, 252
A.3d at 1174-75. This Court disagreed and stated:
While [c]laimant, 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 them. However, claimants, such as the one in the matter
before us, did not automatically lose anything by the enactment of
[Section 306(a.3) of the Act]. [Section 306(a.3) of the Act] simply
8
provided employers with the means to change a claimant’s disability
status from [TTD] 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. Absent clear language to the contrary, statutes are to be
construed to operate prospectively. See City of Warren v. Workers’ Comp. Appeal
Bd. (Haines by Haines), 156 A.3d 371, 376 (Pa. Cmwlth. 2017) (citation omitted);
see also 1 Pa. C.S. § 1926 (“No statute shall be construed to be retroactive unless
clearly and manifestly so intended by the General Assembly.”). Section 306(a.3) of
the Act, however, manifests an intention by the General Assembly for its credit week
provisions to be given retroactive effect. See City of Allegheny v. Workers’ Comp.
Appeal Bd. (Butkus), 253 A.3d 1232, 1236–37 (Pa. Cmwlth. 2021); Section 3(2) of
Act 111, Historical and Statutory Notes (specifying that “[f]or the purposes of
determining the total number of weeks of partial disability compensation payable
under Section 306(a.3)(7) of the Act, an insurer shall be given credit for weeks of
partial disability compensation paid prior to the effective date of this paragraph.”
(emphasis added)). Accordingly, in Pierson, we found that “the General Assembly
made it clear in [Section 306(a.3) of the Act] that weeks of [TTD] and partial
disability paid by an employer/insurer prior to the enactment of [Section 306(a.3) of
the Act] count as credit against an employer’s new obligations under [Section
306(a.3) of the Act].” Pierson, 252 A.3d at 1179.
As in Pierson, the enactment of Section 306(a.3) of the Act did not change
Claimant’s status, deprive her of any vested rights, or change the status of her
workers’ compensation benefits. Section 306(a.3) of the Act merely established a
mechanism for Employer to seek modification of Claimant’s disability benefits in
the future. Accordingly, like in Pierson, we reject Claimant’s constitutional
challenge to Section 306(a.3) of the Act.
9
For the foregoing reasons, we affirm the order of the Board.
______________________________
STACY WALLACE, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sandra Tufano, :
Petitioner :
:
v. : No. 803 C.D. 2021
:
Tammy L. Clause, P.C. (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 13th day of May 2022, the June 4, 2021 Order of the
Workers’ Compensation Appeal Board is AFFIRMED.
______________________________
STACY WALLACE, Judge