T. Brown v. City of Philadelphia (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terry Brown, :

Petitioner :

: No. 154 C.D. 2022

v. :

: Submitted: July 15, 2022

City of Philadelphia (Workers’ :

Compensation Appeal Board), :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE MARY HANNAH LEAVITT, President Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: July 26, 2023

Terry Brown (Claimant) seeks review of the January 26, 2022 order of the

Workers’ Compensation Appeal Board (WCAB), which affirmed the May 18, 2021

decision and order of the Workers’ Compensation Judge (WCJ). The WCJ granted the

City of Philadelphia’s (Employer) Modification Petition and modified Claimant’s

benefits from temporary total disability (TTD) to partial disability status as of June 4,

2020. Upon review, we affirm the WCAB’s order.

I. FACTS AND PROCEDURAL HISTORY

On June 10, 2011, Claimant suffered an injury during the course and scope

of her employment with Employer when she fell and hit her right arm on a step. Her

injury was acknowledged as a status post subacromial decompression of the right arm,

right rib area and cervical contusion and sprain/strain. For this injury, she received

weekly TTD benefits in the amount of $815.33 per week. (Reproduced Record (R.R.)

at 13a.)

On June 4, 2020, Christopher Belletieri, D.O. conducted an Impairment

Rating Evaluation (IRE) pursuant to Act 111 of 2018 (Act 111), which added Section

306(a.3) to the Pennsylvania Workers’ Compensation Act (Act).1 In his report Dr.

Belletieri concluded that Claimant had a whole person impairment rating of 30%, based

upon the American Medical Association Guides to the Evaluation of Permanent

Impairment, Sixth Edition, Second Printing (AMA Guides).2 Id.

On July 22, 2020, Employer filed a Modification Petition in which it asked

that Claimant’s benefit status be modified from TTD to partial disability. Id. at 5a-7a.

After a hearing, WCJ Erin Young issued a decision on May 18, 2021, in which she

granted Employer’s Petition and modified benefits to partial as of June 4, 2020. Id. at

11a-16a. Claimant filed an appeal to the WCAB, and by opinion and order dated

January 26, 2022, it affirmed the WCJ’s decision. Id. at. 25a-35a. On February 24,

2022, Claimant timely filed a Petition for Review with this Court. Id. at 125a-29a.

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Act of June 2, 1915, P.L. 736, as amended. Section 306(a.3) was added to the Act by the

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

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Act 111 requires that a physician use the AMA Guides when performing an IRE and allows

for modification to partial disability status if a claimant has a whole-person impairment of less than

35%.

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II. DISCUSSION3

A. Constitutionality of Act 111

Claimant argues on appeal that the WCJ erred in granting Employer’s

Modification Petition because retroactive application of Act 111 is unconstitutional.

Specifically, she asserts that her work injury pre-dates the retroactive effect and

application of Act 111 and her IRE was conducted prior to the expiration of 104 weeks

after its effective date, which infringes on her vested rights in violation of various

provisions of the United States Constitution.4 The WCAB addressed this issue and

concluded that Claimant’s challenge to the constitutionality of Act 111 has been

addressed and rejected by this Court in Pennsylvania AFL-CIO v. Commonwealth, 219

A.3d 306 (Pa. Cmwlth. 2019), Rose Corporation v. Workers’ Compensation Appeal

Board (Espada), 238 A.3d 551 (Pa. Cmwlth. 2020) (en banc), and Pierson v. Workers’

Compensation Appeal Board (Consol Pennsylvania Coal Co. LLC), 252 A.3d 1169

(Pa. Cmwlth. 2021), appeal denied, 261 A.3d 378 (Pa. 2021). The WCAB summarized

the relevant cases and analyzed Claimant’s issue, in relevant part, as follows:

Section 306(a.3) of the Act, which was added by Act 111, provides

that once a claimant receives 104 weeks of total disability benefits,

the insurer or employer may require the claimant to submit to an

IRE. 77 P.S. §511.3(1). Section 306(a.3)(7) sets the limit on the

number of weeks of total disability at 104 weeks, and partial

3

This Court’s review is limited to determining whether the necessary findings of fact were

supported by substantial evidence, constitutional rights were violated, or error of law were committed.

Borough of Heidelberg v. Workers’ Compensation Appeal Board (Selva), 928 A.2d 1006, 1009 (Pa.

2006). Whether the issue presented involves a question of law, our standard of review is de novo and

our scope of review is plenary. Id.

4

Claimant argues violations of the Due Process Clause in the Fifth and Fourteenth

Amendments, U.S. Const. Amends. V, XIV, and various provisions of the Pennsylvania Constitution

including the Ex Post Facto Clause in article I, Section 17, Pa. Const. art. 1, § 17; the Due Process

Clause in article I, section 1, Pa. Const. art. 1, § 1; and the Due Course/Remedies Clause in article I,

section 11, Pa. Const. art. 1, § 11.

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disability at 500 weeks for a claimant who does not have an

impairment rating of at least 35 [%]. 77 P.S. §511.3(7). With

respect to the implementation of Section 306(a.3), Section 3 of Act

111 states as follows:

(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.

(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.

As is the case with the WCJ’s jurisdiction, the [WCAB] cannot

declare a provision of the Act to be unconstitutional because an

administrative agency has no jurisdiction to determine the

constitutional validity of its own enabling legislation. Ruzin v.

[Department] of Labor & [Industry] Bureau of Workers’

Compensation, 675 A.2d 366, 370 (Pa. Cmwlth. 1996). The

Statutory Construction Act requires the [WCAB] to presume that

the provisions of the [Act of 1972] are constitutional. 1 Pa. C.S.

§1922. Nevertheless, where Pennsylvania’s appellate courts have

addressed constitutional challenges to Act 111, it is proper for the

[WCAB] to apply those holdings.

In [Rose Corporation], [the] Commonwealth Court held that an

IRE which pre-dates the effective date of Act 111 cannot be used

to modify a claimant’s disability status under Act 111. However,

the Court went on to discuss the use of an IRE done on or after the

effective date of Act 111 and the credit found in Section 3, in the

context of a claimant injured prior to Act 111. The Court stated:

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[I]t 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 modification should not bear 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.

Id. at 562. The Court explained the application of Act 111 as

follows:

[U]nder Act 111, [an e]mployer would receive credit

for the 104 weeks of total disability it previously paid

[the c]laimant before [the e]mployer issued its notice

on June 13, 2013[.] . . . Because [the c]laimant already

received 104 weeks of total disability benefits, under

Section 306(a.3)(1), [the e]mployer may seek a new

IRE. Should [the e]mployer choose to obtain a new IRE

that utilizes the Sixth Edition of the [AMA] Guides and

yields an impairment rating of less than 35%, [the

e]mployer could then change [the c]laimant’s disability

status back to partial by following the process set forth

in Section 306(a.3).

Id. at 563.

In [Pierson], [the] Commonwealth Court cited [Pennsylvania

AFL-CIO], and stated that the consensus is Act 111 is not

unconstitutional on its face. Pierson, 252 A.3d at 1179. The Court

also addressed a claimant’s arguments that applying Act 111 in a

retroactive manner to claimants injured prior to its effective date

is unconstitutional because it “violate[s] vested rights secured by

due process and the Remedies Clause of the Pennsylvania

Constitution” and “interferes with Claimant’s vested right to the

calculation of his compensation that arose on the date of injury[.]”

Id. at 1175, 1176. Citing Rose Corporation, 238 A.3d 551, the

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Pierson Court rejected the claimant’s arguments, holding that the

legislature explicitly gave the 104-week and credit portions of Act

111 retroactive effect, and that Act 111 is constitutional as applied

to claimants injured before its effective date, if the IRE is

performed on or after Act 111’s effective date, because no vested

rights of claimants have been abrogated by Act 111. Pierson, 252

A.3d at 1180. Moreover, in Hutchinson v. Annville Township

([Workers’ Compensation Appeal Board]), 260 A.3d 360 (Pa.

Cmwlth. 2021), [the] Commonwealth Court cited to Pierson and

again rejected a claimant’s arguments that it is unconstitutional to

apply Act 111 to claimants injured before its effective date or

before 104 weeks have passed after Act 111’s enactment.

Based on Rose Corporation, Pierson, and Hutchinson, we

conclude that many of Claimant’s challenges to the

constitutionality of Act 111 have already been addressed and

rejected by [the] Commonwealth Court. The legislature explicitly

gave Act 111 retroactive effect with a credit to employers for total

disability benefits previously paid, and Act 111 is not

unconstitutional either on its face or as applied to claimants injured

prior to its effective date, as long as the IRE does not pre-date Act

111. Here, Claimant’s IRE was performed on June 4, 2020, which

is well after Act 111’s October 24, 2018, effective date. Act 111

applies to Claimant and does not abrogate any vested rights.

Further, [Employer] receives a credit for any weeks of total

disability benefits it paid to Claimant after her work injury and was

not required to wait until 104 weeks after Act 111’s effective date

to obtain an IRE. To the extent Claimant raises any constitutional

challenges to Act 111 that have not yet been addressed specifically

by the appellate courts, we lack jurisdiction to decide those issues.

Ruzin. In sum, we determine that the WCJ did not err in granting

[Employer’s] Modification Petition under Act 111. Nevertheless,

we acknowledge that Claimant has properly preserved her stated

issues concerning the constitutionality of Act 111 for any further

appeal.

(R.R. at 29a-32a.)

The constitutionality of Act 111 was upheld by this Court in Pennsylvania

AFL-CIO, finding that it was not an unconstitutional delegation of legislative authority.

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Specifically, this Court held the amendment to the Act providing for IREs did not

violate the state constitutional restriction on delegation of the General Assembly’s

legislative authority. The Court noted that when the “General Assembly adopts an

existing set of standards as its own, there is no delegation and no violation of article

II, section 1 of the Pennsylvania Constitution.” Id. at 315 (emphasis in original). The

Court stated, “the [AMA Guides] establish a standard methodology for grading

impairments, which is used by the [workers’ compensation] systems in the federal

government, 44 states, and 2 commonwealths to measure a worker’s medical

impairment.” Id. at 317 (citing Protz v. Workers’ Compensation Appeal Board (Derry

Area School District), 161 A.3d 827, 835 n.3 (Pa. 2017)). Pennsylvania AFL-CIO has

consistently been cited to for this holding. See Hutchinson; Pierson.

As to Claimant’s assertion that she has not received the requisite 104

weeks of TTD benefits since the enactment of Act 111 in 2018, and prior to the June

4, 2020 IRE, this issue has also been addressed by this Court in Pierson, where we held

that

it is clear that the General Assembly intended for the 104-week

and credit weeks provisions of Act 111 to be given retroactive

effect, whereas we noted in Rose Corporation, it stated in plain

language it was doing so. Thus, “[the c]laimant does not

prevail in his arguments relative to the constitutionality of Act

111, and we see no reason to disturb the [WCAB’s] Order

affirming the WCJ.”

Pierson, 252 A.3d at 1178-80.

The WCAB thoroughly rejected Claimant’s argument citing to our

decisions Pierson, Hutchinson, and Rose Corporation, in which we held that Act 111

does not abrogate or substantially impair a claimant’s vested rights to workers’

compensation benefits because there is no right to ongoing TTD status. Hence, we

agree with the WCAB that the precedent clearly establishes that Act 111 is not a

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constitutional violation of the Legislature’s delegation authority. Therefore, because

these cases are dispositive and binding authorities on this issue, we conclude

Claimant’s argument lacks merit.

B. Substantial Evidence

As to Claimant’s argument that there was not substantial evidence to

support the WCJ’s decision, as noted by the WCAB, Claimant did not raise this

argument to the WCAB, and therefore, it is waived. See Myers v. Workers’

Compensation Appeal Board (Family Heritage Restaurant), 728 A.2d 1021, 1023 (Pa.

Cmwlth. 1999) (“The law is well settled that issues not raised before the [WCAB] are

waived and cannot be raised for the first time before this Court.”). Even if this Court

was to address the merits of these claims, the only evidence presented before the WCJ

was the opinion of Dr. Belletieri that Claimant was at maximum medical improvement

and that Claimant’s whole-person impairment rating was 30%. (R.R. at 33a.) As such,

we would conclude that the WCAB did not err in affirming the decision of the WCJ.

III. CONCLUSION

Claimant does not challenge the qualifications of Dr. Belletieri or the

finding that her impairment rating is below the 35% whole-person impairment

threshold. Her argument with respect to the application of Act 111 is squarely

foreclosed by this Court’s decision in Pierson. Her argument regarding substantial

evidence was not raised at the time of argument and, is, therefore, waived.

Accordingly, we will affirm the WCAB’s order.

________________________________

PATRICIA A. McCULLOUGH, Judge

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terry Brown, :

Petitioner :

: No. 154 C.D. 2022

v. :

:

City of Philadelphia (Workers’ :

Compensation Appeal Board), :

Respondent :

ORDER

AND NOW, this 26th day of July, 2023, the January 26, 2022 order of

the Workers’ Compensation Appeal Board is hereby AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge