M. Harold v. Abate Irwin, Inc. (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Martin Harold, :

Petitioner :

:

v. :

:

Abate Irwin, Inc. (Workers’ :

Compensation Appeal Board), : No. 879 C.D. 2021

Respondent : Argued: May 16, 2022

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED: June 13, 2022

Petitioner Martin Harold (Claimant) petitions for review from the July

14, 2021, decision and order of the Workers’ Compensation Appeal Board (Board),

which affirmed the December 10, 2020, decision and order of the Workers’

Compensation Judge (WCJ). The WCJ granted the modification petition filed by

Respondent Abate Irwin, Inc. (Employer) and changed Claimant’s benefit status

from total to partial based on a November 12, 2019, Impairment Rating Evaluation

(IRE). Upon review, we affirm.

I. Factual & Procedural Background

The facts underlying this appeal are not in dispute. Claimant sustained

a work-related injury on January 22, 2013. WCJ Op., 12/10/20, at 3; Certified

Record (C.R.) #6. Employer issued a Notice of Compensation Payable and began

paying Claimant temporary total disability (TTD) benefits of $823.47 per week. Id.

Claimant underwent an IRE on November 12, 2019 (2019 IRE), which returned a

10% impairment rating based on the Sixth edition of the American Medical

Association Guides to the Evaluation of Permanent Impairment (AMA Guides). Id.

at 4.

Before Claimant underwent the 2019 IRE, the governing statutory

provision had been former Section 306(a.2) of the Workers’ Compensation Act

(Act),1 which provided for impairment ratings based on the current addition of the

AMA Guides. Former 77 P.S. § 511.2. Subsequently, however, in Protz v. Workers’

Compensation Appeal Board (Derry Area School District), 124 A.3d 406, 416-17

(Pa. Cmwlth. 2015) (Protz I), this Court found the previous IRE statute

unconstitutional and determined that IREs should be subject to the Fourth Edition of

the AMA Guides, the edition in effect when Section 306(a.2) was enacted. Our

Supreme Court struck Section 306(a.2) in its entirety in Protz v. Workers’

Compensation Appeal Board (Derry Area School District), 161 A.3d 827, 835-36

(Pa. 2017) (Protz II).2

1

Act of June 2, 1915, P.L. 736, 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1996, P.L. 350, formerly 77 P.S. § 511.2, repealed by the Act of October 24, 2018, P.L. 714, No.

111 (Act 111).

2

Both Courts found the previous IRE provision impermissibly delegated legislative

authority to a private entity, the AMA, without safeguards to ensure either General Assembly

2

Thereafter, the General Assembly enacted Act 111 of 2018 (Act 111),

which replaced former Section 306(a.2) with Section 306(a.3), and which was in

effect when Claimant underwent the 2019 IRE. 77 P.S. § 511.3.3 Like the previous

provisions, Act 111 enabled an employer to require a claimant to undergo an IRE

once the claimant had received at least 104 weeks of total disability benefits after

sustaining a work-related injury. See Rose Corp. v. Workers’ Comp. Appeal Bd.

(Espada), 238 A.3d 551, 561 (Pa. Cmwlth. 2020). Act 111 also reduced the previous

threshold impairment rating for modification from TTD to temporary partial

disability (TPD) status from 50% compared to that of a whole and unimpaired person

to 35%, making it more difficult for employers to change total disability status to

partial disability status. Id. at 562. Also, under Section 306(a.3), as under the

previous provision, TTD status has no time limit, but TPD status after modification

via an IRE is limited to 500 weeks of benefits.4 Id. at 558. Relevant to this appeal,

Act 111 specifically granted employers credit for any weeks of TTD or TPD benefits

paid prior to its effective date of October 24, 2018. 77 P.S. § 511.3, Historical and

Statutory Notes. This allowed employers to seek IREs and pursue modification for

workers like Claimant whose injuries occurred prior to Act 111’s effective date.

Based on Claimant’s 10% impairment rating from the 2019 IRE,

Employer filed a modification petition on January 30, 2020, seeking to change

supervisory authority over the AMA Guides used to calculate the results of IREs or accountability

of the AMA authors. See Protz II, 161 A.3d at 836.

3

Act of October 24, 2018, P.L. 714 No. 111 (Act 111), 77 P.S. § 511.3.

4

The 500-week period for TPD benefits, based on a showing that the claimant has

recovered some degree of earning power, predated the 1996 enactment of the previous IRE

provisions, which also adopted the 500-week period. See Goodrich v. Workmen’s Comp. Appeal

Bd. (Shenango China), 645 A.2d 302, 303-04 & nn.3-4 (Pa. Cmwlth. 1994) (“Pursuant to Section

306(b) of the Act, 77 P.S. § 512, the statutory period for partial disability is up to 500 weeks.”).

3

Claimant’s benefit status from TTD to TPD as of the date of the IRE. WCJ Op. at

3. Claimant raised and preserved constitutional challenges to Act 111, which the

WCJ noted, but having no jurisdiction to rule on such issues, the WCJ granted

Employer’s petition and modified Claimant’s status to TPD as of November 12,

2019, the date of the 2019 IRE. Id. at 5 & Order. The Board confirmed that it also

had no jurisdiction to rule on the constitutionality of its own enabling legislation, but

noted that the constitutional issues raised by Claimant had already been addressed

and rejected by this Court in Pierson v. Workers’ Compensation Appeal Board

(Consol Pennsylvania Coal Company LLC), 252 A.3d 1169 (Pa. Cmwlth.), appeal

denied, 261 A.3d 378 (Pa. 2021). Board Op., 7/14/21, at 3-4; C.R. #9. The Board

therefore affirmed the WCJ’s decision. Id. at 4 & Order. Claimant now appeals to

this Court.5

II. Discussion

Claimant challenges the credit provisions of Act 111, which state:

(1) For the purposes of determining whether an employee

shall submit to a medical examination to determine the

degree of impairment and whether an employee has

received total disability compensation for the period of

104 weeks under section 306(a.3)(1) of the act, an insurer

shall be given credit for weeks of total disability

compensation paid prior to the effective date of this

paragraph. This section shall not be construed to alter the

requirements of section 306(a.3) of the act.

5

“This Court’s review in workers’ compensation appeals is limited to determining whether

necessary findings of fact are supported by substantial evidence, whether an error of law was

committed, or whether constitutional rights were violated.” Whitfield v. Workers’ Comp. Appeal

Bd. (Tenet Health Sys. Hahnemann LLC), 188 A.3d 599, 605 n.5 (Pa. Cmwlth. 2018).

4

(2) For 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.

Act 111, § 3(1), (2) (emphasis added). Here, because Employer had paid Claimant

at least 104 weeks of TTD benefits since his injury in 2013, Employer claimed credit

for those weeks under subsection 1 when it sought an IRE under Act 111 in

November 2019. WCJ Op. at 3. Claimant maintains that by permitting employers

to use weeks of TTD accrued under the previous unconstitutional IRE statute or after

the Protz cases when there was no IRE statute in place, Act 111’s credit provisions

violate the Pennsylvania Constitution’s due process and due course of law principles

and the “reasonable compensation” requirement of Article III, Section 18 of the

Pennsylvania Constitution.

A party challenging the constitutionality of a statute must meet a heavy

burden. We presume legislation to be constitutional absent a demonstration that the

statute “clearly, palpably, and plainly” violates the Pennsylvania Constitution.

Konidaris v. Portnoff L. Assocs., Ltd., 953 A.2d 1231, 1239 (Pa. 2008). Applying

this standard, we reject Claimant’s constitutional challenges to Act 111.

A. Due Process & Due Course of Law Claims

Article I, Section 1 of the Pennsylvania Constitution is the basis of

constitutional due process protections.6 Pa. Const. art. I, § 1. The due process

6

“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.

5

requirement with respect to both prospective and retroactive aspects of legislation is

“a legitimate legislative purpose furthered by rational means.” Bible v. Dep’t of Lab.

& Indus., 696 A.2d 1149, 1155 (Pa. Cmwlth. 1997) (stating that Pennsylvania has

adopted the federal constitutional standard for due process analysis of economic

legislation). With regard to retroactive application of statutes, “retrospective laws

which have been deemed reasonable are those which impair no contract and disturb

no vested right, but only vary remedies, cure defects in proceedings otherwise fair,

and do not vary existing obligations contrary to their situation when entered into and

when prosecuted.” Id. at 1156 (quoting Krenzelak v. Krenzelak, 469 A.2d 987, 991

(Pa. 1983)). A vested right in this context is “something more than a mere

expectation based upon an anticipated continuance of existing law. It must have

become a title legal or equitable to the present or future enforcement of a demand,

or a legal exemption from a demand made by another.” Id. (quoting Lewis v. Pa.

R.R. Co., 69 A. 821, 823 (Pa. 1908)).

Due course of law protections arise from Article I, Section 11 of the

Pennsylvania Constitution.7 Pa. Const. art. I, § 11. Our Supreme Court has

explained that

[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.”

7

“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. Suits may be brought against the Commonwealth in such manner, in

such courts and in such cases as the Legislature may by law direct.” Pa. Const. art. I, § 11.

6

Konidaris, 953 A.2d at 1240 (quoting Ken Gormley, et al., The Pennsylvania

Constitution: A Treatise on Rights and Liberties, 14.1-14.5 (2004)). Like 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. Id. at

1241-42 (quoting Lewis, 69 A. at 823). Therefore, at issue here is whether Claimant

had a vested right in his TTD status after the Protz cases struck the prior IRE statute

but before the enactment of Act 111 in October 2018.

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 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.

7

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 v. Annville Twp. (Workers’ Comp. Appeal Bd.), 260 A.3d 360,

367 (Pa. Cmwlth. 2021) (relying on Pierson to dismiss claimant’s constitutional

claims against Act 111). In Sochko v. National Express Transit Service (Workers’

Compensation Appeal Board) (Pa. Cmwlth., No. 490 C.D. 2021, filed March 16,

2022), 2022 WL 791817 (unreported),8 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, re’curred, 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 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.

8

Unreported decisions of this Court issued after January 15, 2008, may be cited as

persuasive authority pursuant to Section 414(a) of this Court's Internal Operating Procedures. 210

Pa. Code § 69.414(a).

8

Id., slip op. at 12-13, 2022 WL 791817, at *6 (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, 2022 WL 791817, at *6 (citing 77 P.S. § 511.3(3),

(4)).

Claimant asserts the same kind of vested rights argument that this Court

has repeatedly rejected and suggests that Pierson and similar cases were wrongly

decided. Claimant’s Br. at 14 & 21. We discern no merit in Claimant’s arguments.

The cases Claimant cites in support of his vested right argument are

distinguishable. In Giant Eagle, Inc./OK Grocery Co. v. Workers’ Compensation

Appeal Board (Weigand), 764 A.2d 663 (Pa. Cmwlth. 2000), this Court declined to

allow application to previously injured claimants of a new provision that would limit

how their rates of compensation were calculated when they were able to work part-

time while receiving benefits. Id. at 668. Although the employer sought only

prospective reduction of the rate of compensation and did not ask to recover benefits

previously paid, this Court nevertheless found the provision could not be applied to

previously injured claimants, who “have a vested right in the continuation of

workers’ compensation benefits until found to be ineligible” and because “[t]he law

in effect on the date of injury determines the method of calculating benefits.” Id.

(emphasis added).

However, the provision at issue in Giant Eagle did not clearly express

an intent to apply to prior-injured claimants, while Act 111’s credit provisions do so

in plain language. See Pierson, 252 A.3d at 1180 (citing Rose Corp.). Also, the

9

challenge in Giant Eagle was based on statutory interpretation rather than

constitutional challenges, which place a heavy burden on challengers. See

Konidaris, 953 A.2d at 1239. Finally, the provision at issue in Giant Eagle would

have changed the actual amount of benefits the claimant received, whereas Act 111

only enables an employer to seek an IRE, which, depending on the results, may or

may not allow the employer to seek modification of the claimant’s status from TTD

to TPD. Thus, Giant Eagle is inapplicable here.

Gibson v. Commonwealth, 415 A.2d 80 (Pa. 1980), is likewise inapt.

In Gibson, our Supreme Court addressed the General Assembly’s enactment in 1978

of sovereign immunity after it had been abrogated by a Court decision earlier that

year. Id. at 81. The Court held that the plaintiffs had a vested right in their cause of

action for the Department of Environmental Resources’ negligent supervision of a

dam and that “a legislature may not constitutionally eliminate in toto a remedy,

whether judicially or legislatively created, which has already accrued.” Id. at 83

(quoting Lewis, 69 A. at 823). However, the issue in Gibson was the elimination of

a cause of action in its entirety, which would have put the Gibson plaintiffs out of

court with no remedy at all. By contrast, workers’ compensation benefits have

always been subject to modification in various ways, including from TTD to TPD

(with a 500-week limit). This was the case before the introduction of IREs in 1996

and during the period between the Protz cases and Act 111 when IREs were not

permitted. See Goodrich v. Workmen’s Comp. Appeal Bd. (Shenango China), 645

A.2d 302, 303-04 & nn.3-4 (Pa. Cmwlth. 1994). Thus, Gibson is also inapplicable

here.

Likewise, in Ieropoli v. AC&S Corporation, 842 A.2d 919 (Pa. 2004),

the legislation at issue would have extinguished an accrued cause of action against

10

certain defendants for personal injuries due to decades of exposure to asbestos. Id.

at 921-23. As in Gibson, our Supreme Court in Ieropoli concluded the General

Assembly could not eradicate an accrued cause of action because the cause of action

itself was the remedy in which the plaintiffs had a vested right. Id. at 929-30. As

discussed above, however, an accrued cause of action and an award of workers’

compensation benefits are not equivalent; workers’ compensation benefits, even

once awarded, have always been subject to modification, including from TTD to

TPD, and are therefore not analogous to an accrued cause of action in tort.

Accordingly, Ieropoli does not apply here.

In Konidaris, 2003 legislation allowed localities to impose attorneys’

fees for tax collection on delinquent taxpayers retroactively to 1996. 953 A.2d at

1233. The plaintiffs, delinquent school district taxpayers for years between 1996

and 2003, asserted a vested right not to pay attorneys’ fees associated with tax

collection for years when such attorneys’ fees were not part of the legislation. Id. at

1234 & 1242. Our Supreme Court declined to rule on the vested right issue, noting

that “our Remedies Clause jurisprudence has almost exclusively dealt with tort law

causes of action between individuals” where there is a clear injury, and that

retroactive application of tax legislation has long been accepted and upheld. Id. at

1242-43. The Konidaris Court observed that the purpose of the Remedies Clause is

“the protection from legislative action of an individual’s remedy for an injury done.

In this case, there is no ‘injury done.’” Id. at 1242. Here, Claimant attempts to

distinguish Konidaris by arguing that “there is no question that there was an injury

done” in this case and that Claimant is entitled to benefits. Claimant’s Br. at 35.

However, as discussed at length above, benefits can always be modified; they are

not set in stone as of the date of injury.

11

Claimant also seeks to distinguish Bible. In 1995, the General

Assembly amended the Act’s treatment of hearing loss. 696 A.2d at 1151. Prior to

the amendment, based on a Supreme Court case interpreting the relevant provision

of the Act, a claimant who showed a complete loss of hearing “for all practical

intents and purposes” was eligible for 260 weeks of specific loss benefits. Id. That

legal regime led to an undesirable situation with inconsistencies in proofs that led

either to 260 weeks of benefits or none at all. Id. at 1156. The amendment allowed

for partial hearing loss to be awarded based on the impairment rating analysis for

hearing loss in the AMA Guides so that a finding of 30% hearing loss would result

in 78 weeks of benefits (78 is 30% of 260). Id. The amendment expressed that the

changes “shall apply retroactively to all claims existing as of the effective date of

this act for which compensation has not been paid or awarded.” Id.

Claimants with pending claims challenged the retroactivity of the

amendment as a due process violation. Bible, 696 A.2d at 1153-54. Reversing this

Court, which had limited its holding to a determination that the amendment

improperly impaired contractual obligations, our Supreme Court concluded that the

amendment did not violate due process because while an injured worker with a

pending claim for compensation has a cognizable interest in obtaining reasonable

compensation for injuries, he or she has not acquired a vested right to compensation

of a fixed amount, which, in the context of Bible, meant the full 260 weeks of

benefits available prior to the amendment. Id. at 1156. By introducing a method of

measuring partial hearing loss, the amendment did not impair the right to receive

compensation for hearing loss, even up to 260 weeks if the claimant showed the loss

was complete rather than partial: “only the remedy has been varied.” Id.

12

Notably, the Bible Court added that the claimants’ interest in having

their claims adjudicated based on the state of the law before the amendment was

enacted was not a vested right, but rather a “mere expectation based upon an

anticipated continuance of existing law.” 696 A.2d at 1156 (quoting Lewis).

Moreover, the Court explained that the amendment did not violate due process

principles because after balancing the interests of claimants and employers, the

amendment amounted to a rational means of implementing a legitimate legislative

purpose, specifically the problematic “all or nothing” state of the law prior to the

amendment. Id.

Claimant argues that, unlike the claimants in Bible, he attained vested

rights in the full complement of benefits available to him at the time of his injury

because his claim was accepted by Employer. Claimant’s Br. at 24-27. Claimant’s

assertions rest on the proposition that when our Supreme Court struck the previous

IRE provisions in Protz, 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. See Claimant’s Br. at 13 &

n.1. However, our courts have never held that to be the case, and several decisions

have placed temporal limits on the application of Protz II. See, e.g., Dana Holding

Corp. v. Workers’ Comp. Appeal Bd. (Smuck), 232 A.3d 629 (Pa. 2020) (explaining

that “a holding of this Court that a statute is unconstitutional will generally be

applied to cases pending on direct appeal in which the constitutional challenge has

been raised and preserved”); White v. Workers’ Comp. Appeal Bd. (City of Phila.),

237 A.3d 1225 (Pa. Cmwlth. 2020) (holding that a claimant who was not litigating

an IRE when Protz II was issued could be reinstated to TTD status only as of date

of petition for reinstatement, not the earlier effective date when her status was

13

changed to TPD after a 2013 IRE); Weidenhammer v. Workers’ Comp. Appeal Bd.

(Albright Coll.), 232 A.3d 986 (Pa. Cmwlth. 2020) (stating that a claimant may not

seek reinstatement based on Protz if more than three years have elapsed since the

last TPD payment). Thus, contrary to Claimant’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.

For these reasons, we conclude that Claimant has not established a

vested right in his post-Protz-pre-Act 111 TTD status. He therefore has not met the

requirement for relief under either due process or due course of law principles.

B. Claims Pursuant to Article III, Section 18 of the Pennsylvania Constitution

Article III, Section 18 of the Pennsylvania Constitution states:

The General Assembly may enact laws requiring the

payment by employers, or employers and employes

jointly, of reasonable compensation for injuries to

employes arising in the course of their employment, and

for occupational diseases of employes, whether or not such

injuries or diseases result in death, and regardless of fault

of employer or employe, and fixing the basis of

ascertainment of such compensation and the maximum

and minimum limits thereof, and providing special or

general remedies for the collection thereof[.]

Pa. Const. art. III, § 18. We have stated that

[t]his provision empowers the General Assembly, if it

chooses, to enact laws to compensate for injuries or

diseases, including those that cause the death of an

employee, that arise out of their employment. Rather than

placing any limitation on the General Assembly, Article

III, § 18, grants it expansive power to fashion a system to

compensate employees for work-related injuries or

disease.

14

Antonucci v. Workers’ Comp. Appeal Bd. (U.S. Steel Corp.), 576 A.2d 401, 404 (Pa.

Cmwlth. 1990). Added to our Constitution in 1915 to enable our workers’

compensation laws, Article III, Section 18 has traditionally been the subject of

litigation over the reasonability of amounts or rates of compensation received by a

claimant. See Keystone Trucking Corp. v. Workmen’s Comp. Appeal Bd., 397 A.2d

1256 (Pa. Cmwlth. 1979) (citing Rich Hill Coal Co. v. Bashore, 7 A.2d 302 (Pa.

1939); Rudy v. McCloskey, 30 A.2d 805 (Pa. Super. 1943)).

Here, however, in what appears to be an issue of first impression,

Claimant argues that Act 111 violates Article III, Section 18’s requirement that the

General Assembly ensure “reasonable compensation” for injured workers.

Claimant’s Br. at 40. Claimant maintains that by restoring the IRE process, Act 111

allows employers to avoid the longstanding requirement to show that a claimant has

regained some degree of earning power in order to be subject to modification to TPD

and replaces it with an impairment rating not tied to earning power. Claimant’s Br.

at 38-47. Because a claimant who may have no earning power due to his work-

related injury may nevertheless be placed in TPD status and have his benefits

duration limited to 604 weeks (104 weeks of TTD benefits followed by 500 weeks

of TPD benefits), Claimant asserts that Act 111 does not provide for “reasonable

compensation” as required by Article III, Section 18. Claimant’s Br. at 38-47.

Employer responds that Article III, Section 18 is not a limitation on the

General Assembly, but rather a broad grant of authority to legislate workers’

compensation, which includes placing reasonable limits on how much and for how

long a claimant may receive benefits. Employer’s Br. at 20-22. Employer reasons

that although modification from TTD to TPD status traditionally required an

employer to show that a claimant regained earning power, it has never been declared

15

to be the sole or only reasonable method of modification. Id. at 22-23. Employer

adds that the General Assembly has previously created benefits not based on earning

power, such as those for specific loss of a body part and death benefits to family

members, so it can also restore the IRE via Act 111. Id.

Although the former IRE provision has been replaced by Act 111, the

basic language setting forth the mechanism of modification from TTD to TPD status

based on an impairment rating rather than a showing by the employer of the

claimant’s resumed earning power has not changed. Compare 77 P.S. § 511.3 with

77 P.S. § 511.2 (repealed 2018). We note also that the former IRE provisions were

stricken by our Supreme Court in Protz II because they violated nondelegation

principles, not because they were unreasonable. For purposes of this issue, therefore,

we find cases considering the former IRE provision to be applicable.

While the former provisions were in effect, this Court treated

modification to TPD status based on an IRE as distinct from and additional to, but

not a replacement of the traditional method of status modification based on a

showing of resumed earning power. See Sign Innovation v. Workers’ Comp. Appeal

Bd. (Ayers), 937 A.2d 623, 627-29 & n.7 (Pa. Cmwlth. 2007) (observing that the

“[c]laimant’s theory mixes apples and oranges, i.e., a body impairment and actual

ability to work”). In Diehl v. Workers’ Compensation Appeal Board (IA

Construction), 972 A.2d 100 (Pa. Cmwlth. 2009), we stated that the former IRE

provision allowed for modification under either an earning power or IRE mechanism

and that “[a]n employer is free to prove one or the other. However, the employer

need not prove both earning power and level of impairment to effect a change in the

claimant’s disability status.” Id. at 107. In Whitfield v. Workers’ Compensation

Appeal Board (Tenet Health System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth.

16

2018), which this Court issued several months before Act 111 became effective, we

noted that while “disability” in workers’ compensation is generally synonymous

with lost earning power, it can also refer to the claimant’s benefit status (either TTD

or TPD) and that the former IRE provision allowed for a change in status with or

without evidence of a resumption of earning power. Id. at 612-14.

In finding that the IRE process could stand alone as a method of

modifying a claimant’s benefit status and that evidence of resumed earning power

in the traditional manner was not required for that modification, these decisions

indicated that the IRE process itself was not unreasonable. In Hilyer v. Workers’

Compensation Appeal Board (Joseph T. Patrill, Jr. Logging), 847 A.2d 232 (Pa.

Cmwlth. 2004), we explained that when IREs were introduced in 1996, they were

part of a reform effort “intended to reduce rising Workers’ Compensation costs and

restore efficiency to the Workers’ Compensation system.” Id. at 235.

Our workers’ compensation laws are remedial and salutary, and

therefore subject to liberal interpretation in favor of the claimant. City of Phila. v.

Workers’ Comp. Appeal Bd. (Williams), 851 A.2d 838, 843 (Pa. 2004). However,

these laws also balance “the competing interests of employers and employees.”

Dep’t of Lab. & Indus., Bur. of Workers’ Comp. v. Workers’ Comp. Appeal Bd.

(Excelsior Ins.), 58 A.3d 18, 27 (Pa. 2012). We have found that the General

Assembly engaged in similar balancing when drafting Act 111 to credit employers

for past weeks of TTD or TPD, while making other changes favorable to claimants:

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 modification19 should not bear

17

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.

19

IREs are generally viewed as a more cost-

efficient method of modifying a claimant’s

benefits compared to alternatives.

Rose Corp., 238 A.3d at 562 & n.19 (stating that an IRE performed prior to the

enactment of Act 111 may not be the basis of a modification because the provision

restoring the IRE process does not use retroactive language as does the provision

granting employers credit for past weeks of paid benefits).

As the foregoing cases illustrate, this Court has not found IREs to be

inherently unreasonable as an alternative means for employers to modify a

claimant’s status from TTD to TPD. Additionally, we have previously rejected

arguments that IREs are inherently unreasonable because they do not depend on a

showing by an employer of a claimant’s resumed earning power. See Whitfield, 188

A.3d at 613-14; Diehl, 972 A.2d at 107. We therefore conclude that Act 111’s

restoration of the IRE process does not violate the “reasonable compensation” aspect

of Article III, Section 18 of the Pennsylvania Constitution.

18

III. Conclusion

Claimant has failed to show that Act 111’s provisions granting

employers credit for previously paid benefits weeks violate either due process or due

course of law principles. Claimant has also failed to show that by reenacting the

IRE process, Act 111 violates Article III, Section 18 of the Pennsylvania

Constitution. The Board’s order is therefore affirmed.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

19

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Martin Harold, :

Petitioner :

:

v. :

:

Abate Irwin, Inc. (Workers’ :

Compensation Appeal Board), : No. 879 C.D. 2021

Respondent :

ORDER

AND NOW, this 13th day of June, 2022, the order of the Workers’

Compensation Appeal Board dated July 14, 2021, is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge