IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Leo DeLuca

, :

Petitioner :

:

v. :

: Cservak Management Services, LLC : (Workers’ Compensation Appeal : Board)

, : No. 238 C .D. 20 2 2

Respondent : Submitted: August 5

, 2022

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED : December 22, 2022

Leo DeLuca (Cl aimant) petitions for review of the March 1, 2022 order

of the Workers’ Compensation Appeal Board (Board) affirming the decision of the

workers’ compensation judge (WCJ) to grant the requested modification of

Claimant’s workers’ compensation benefits from total to partial disability. Upon

review, we affirm.

I. Background

In July 2010, Claimant sustained work

- related injuries in the form of

midback, left arm/shoulder and neck sprain/strain while working for Cservak

Management Services, LLC (Employer). WCJ Decision & Order, 5/26/21 (WCJ2

Decision), Finding of Fact (F.F.) 1, Certified Record (C.R.) at 17. 1 By means of an

amended notice of compensation payable, Employer accepted liability for payment

of total disability benefits as of January 2015. F.F. 1; Board Decision & Order,

3/1/22 (Board Decision) at 1, C.R. at 19. On November 7, 2019, a physician

con ducted an impairment rating evaluation (IRE) of Claimant pursuant to the Sixth

Edition of the American Medical Association (AMA) Guides to the Evaluation of

Permanent Impa ir

ment

, Second Printing ( Guides ) , which yielded a whole body

impairment rating of 28 % . F.F. 5 & 7. 2

In August 2020, Employer filed a modification petition, seeking to

change Claimant’s disability status from total to partial on the basis of the November

2019 IRE . F.F. 2. Claimant opposed the modification petition on the basis that the

Act of October 24, 2018, P.L. 714, No. 111 (Act 111), relating to IREs and

modifications, is unconstitutional. In May 2021, the WCJ granted the requested

modification , declaring Claimant’s change in disability status from total to partial

effective as of November 7, 2019 , the date of the IRE

. Conclusion of Law ( C.L. ) 3;

WCJ Decision at 6, C.R. at 20. The WCJ noted, however, that it lacked the authority

to address Claimant’s constitutional objections to Act 111. C.L. 4.

Claimant appeale d to the Board, which affirmed. Board Decision at 1

& 7, C.R. at 19 & 25. Noting that, like the WCJ, it lacked the authority to declare

unconstitutional any portion of the Workers’ Compensation Act ( WC Act )

, 3 the

1 Citations to the certified record reference the pages of the PDF document, as the record is not internally paginated.

2 In December 2020, the physician performing Claimant’s IRE submitted an addendum report opining that Claimant had reached maximum medical improvement as of November 2019. WCJ’s Decision and Order, 5/26/2 1

, Finding of Fact 5.

3 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §§ 1

- 1041.4, 2501

- 27 10

.3

Board nevertheless observed that this Co urt previously rejected the same arguments

levied by Claimant in support of his constitutional challenge. Id. at 3 & 6 , C.R. at

21 & 24 (citing Rose Corp. v. Workers ’ Comp. Appeal Bd. (Espada) , 238 A.3d 551

(Pa. Cmwlth. 2020) ; Pierson v. Workers’ Comp. Appeal Bd. (Consol Pa. Coal Co.

LLC) , 252 A.3d 1169 (Pa. Cmwlth. 2021), appeal denied , 261 A.3d 378 (Pa. 2021) ;

Hutchinson v. Annville T wp. (Workers’ Comp. Appeal Bd.) , 260 A.3d 360 (Pa.

Cmwlth. 2021), appeal denied , 279 A.3d 1180 (Pa. 2022) ).

Claima nt petitioned this Court for review.

II. Issues

Before this Court

, 4 Claimant argues that the Board erred in affirming

the modification of his disability status

, because Act 111 is unconstitutional. See

Claimant’s Br. at 8

- 9 & 13. Claimant contends that the “minor changes” effected

by Act 111 fail to remedy the unconstitutionality of former Section 306( a .2) of the

WC Act

, formerly 77 P.S. § 511.2

. 5 Id. at 9 (citing Protz v. Workers ’ Comp. Appeal

Bd. (Derry Area Sch. Dist.) , 161 A.3d 827 (Pa. 2017) ( Protz II ) ). Claimant asserts

that Act 111’s reduction of the partial disability threshold from an impairment rating

of less than 50% to a rating of less than 35% fail s to remediate the impermissible

delegation of powers deemed unconst itutional by the Pennsylvania Supreme Court

in Protz II

. Id. at 8

- 9. Claimant likewise maintains that Act 111’s designation of

the Sixth Edition of the Guides in assessing whole body impairment fails to remedy

4 This Court’s scope of review is limited to determining whether the WCJ’s necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated. Russell v. Workmen’s Comp. Appeal Bd. (Volkswagen of Am

. ) , 550 A.2d 1364 (Pa. Cmwlth. 1988).

5 Added by the Act of June 24, 1996, P.L. 350, formerly 77 P.S. § 511.2, repealed by Act

111.4

this constitutional defect

. Id. at 9. Claimant also contends that Act 111 may not be

applied retroactively to his case

, as his July 2010 injury predates the A ct’s October

24, 2018 effective date , and workers’ compensation claims accrue on the date of

injury

. Id. at 10

. Further, Claimant asse rts that, a ssuming arguendo the

constitutionality of Act 111 and its applicability to the present dispute

, h is November

2019 IRE was nevertheless premature because Act 111 constitutes “new legislation

imposing new restrictions on the receipt of benefits,” such that his IRE would have

been appropriate only after receiving 104 weeks of full disability benefits after the

passage of Act 111. Id.

III. Discussi on

In Protz v. Workers’ Compensation Appeal Board (Derry Area Sch.

Dist.) , 124 A.3d 406 (Pa. Cmwlth. 2015) ( Protz I )

, aff’d in part

, rev’d in part

, Protz

II

, a claimant challenged the modification of her benefits from total to partial

disability under form er Section 306(a.2) of the WC Act, 77 P.S. § 511.2, on the basis

that the provision unconstitutionally delegated legislative authority in contravention

of a rticle II, s ection 1 of the Pennsylvania Constitution

. 6 See Protz I , 124 A.3d at

408 & 410

- 11. We agreed, holding that the challenged statute’s provision for use of

the most recent edition of the Guides in evaluating the degree of impairment

impermissibly delegated legislative authority to the AMA to establish the criteria for

such evaluations

. Id. at 410

- 1 5 (citing former Section 306(a.2)(1) of the WC Act,

77 P.S. § 511.2)

. Thus, we deemed former Section 306(a.2) of the WC Act, 77 P.S.

§ 511.2 , unconstitutional “insofar as it proactively approved versions of the AMA

Guides beyond the Fourth Edition without review” ; we remanded the matter to the

6 “ The legislative power of this Commonwealth shall be vested in a General Assembly,

which shall consist of a Senate and a House of Representatives. ” P A

. C ONST . art. II, § 1.5

Board with instruction to remand to the WCJ to apply that edition to the dispute. Id.

at 416. Our S upreme Court affirmed in part and reversed in part, holding that this

Court erred in failing to strike former S ection 306(a.2) in its entirety on the basis

that the valid portions were inseparable from the constitutionally defective

provisions. Protz II

, 161 A.3d at 841.

In response to Protz II , the General Assembly enacted Act 111 on

October 24, 2018 to replace the unconstitutional provision with Section 306(a.3), 77

P.S. § 511.3. 7 Act 111 amended the WC Act by lowering the threshold impairment

7 Section 306(a.3) provides, in pertinent part:

(1) When an employe has received total disability compensation pursuant to clause (a)[, referring to Section 306(a) of the WC Act, 77 P.S. § 511,] for a period of one hundred and four weeks, unless otherwise agreed to, the employe shall be required to subm it 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 dete rmined 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 [ Guides ,] 6th edition (second printing April 2009).

(2) If such determination results in an impairment rating that meets a threshold impairment rating that i s equal to or greater than thirty

five per centum impairment under the [ Guides ,] 6th edition (second printing April 2009), the employe shall be presumed to be totally disabled and shall continue to receive total disability compensation

benefits under claus e (a). If such determination results in an impairment rating less than thirty

- five per centum impairment under the [ Guides ,] 6th edition (second printing April 2009), the employe shall then receive partial disability benefits under clause (b)[, referring to [

former ] Section 306(b) of the WC Act, 77 P.S. § 512,] provided, however, [t] hat no reduction shall be made until sixty days’ notice of modification is given.6

rating for determining partial disability from less than 50% to less than 35%.

Compare Section 306(a.3) of the WC Act, 77 P.S. § 511.3

, with former Section

306(a.2) of the WC Act, formerly 77 P.S. § 511.2 . Act 111 also specified that IRE s

shall be performed using the Sixth Edition of the Guides

. See Section 306(a.3) of

the WC Act, 77 P.S. § 511.3.

Claimant asserts that Act 111 fails to remediate the delegation of

legislative authority deemed unconstitutional by the Protz II Court

. See Claimant’s

Br. at 8

- 9. As we have repeatedly and consistently held in rejecting identical

arguments in other matters, this a ssertion has no merit

. In Pennsylvania AFL

- CIO

v. Commonwealth , 219 A.3d 306 (Pa. Cmwlth. 2019), we upheld Act 111 against an

identical constitutional challenge , reasoning as follows :

T he non

- delegation doctrine does not prohibit the General Assembly from “adopting as its own a particular set of standards which already are in existence at the time of adoption.” Protz II , 161 A.3d at 838 . . . . That is what the General Assembly did here

— it adopted the Sixth Edition, second printing, which PA AFL

- CIO admits was in

existence when Section 306(a.3) [ of the WC Act, 77 P.S. § 511.3

, ] was enacted, “as its own.” Id. When such an adoption occurs, the General Assembly is exercising its legislative and policy making authority by deciding that it is those particular standards that will be come 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.

77 P.S. § 511.3(1), (2).7

Pa. AFL

- CIO , 219 A.3d at 316 (emphasis om itted)

. 8 For the reasons already

repeatedly articulated by this Court, Claimant’s constitutional challenge is

merit less

. 9

In addition , Claimant maintains that Act 111 is not applicable to his

case because his injury predated the statute’s enactment

. See Claimant’s Br. at 9

-

10. Again, t his Court has held repeatedly to the contrary in rejecting identical

arguments :

8 Similarly, in Hutchinson v. Annville Township (Workers ’ Compensation Appeal Board)

, 260 A.3d 360, 366 (Pa. Cmwlth. 2021), appeal denied

, 279 A.3d 1180 (Pa. 2022), we deemed

meritless a claimant’s assertion that Act 111 was unconstitutional based on an identical argument

that its provision for IREs pursuant to the Sixth Edition of the Guides improperly delegated legislative authority to the AMA:

[The c] laimant misapprehends this Court ’ s analysis and holding in [ Protz I ]

. The flaw in former Section 306(a.2) [ of the WC Act

, fo rmerly 77 P.S. § 511.2,] was that, unlike the replacement provision of Act 111, it did not simply adopt a set of existing standards; rather, by mandating use of the most recent version of the Guides , it allowed

the AMA to alter the standards at will withou t any legislative oversight. See Protz I , 124 A.3d at 416.

Hutchinson , 260 A.3d 360, 366 n.9.

9 In conjunction with h is constitutional challenge, Claimant laments that, as with the 50% impairment rating threshold established by former Section 306(a.2) of the WC Act, the 35% threshold of Act 111 is “virtually impossible to reach[.]” Claimant’s Br. at 9. Claimant’s critique fails to appreciate that “for the benefit of claimants, the General Assembly [] 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 difficul t for employers to change total disability status to partial disability

status .” Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada) , 238 A.3d 551

, 562 (Pa. Cmwlth. 2020) (emphasis added)

. Moreover, Claimant fails to elucidate why this advantageous change

p urportedly fails to remedy the unconstitutional aspects of former Section 306(a.2) of the WC Act, formerly 77 P.S. § 511.2

. See Commonwealth v. Johnson , 985 A.2d 915, 924 (Pa. 2009) (citations omitted) ( holding that “ w here an appellate brief fails to prov ide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived ,” further stating that “[i] t is not the obligation of [an appellate court]

. . . to form ulate [ an a]ppellant’s arguments for him ” ).8 While [the c]laimant . . . argues that he has a [vested] right to benefits as calculated at the time of injury, there are reasonable expectations under the [WC] Act that benefits may change. We acknowledge that a claimant retains a certain right to benefi ts 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 Act 111. Act 111 simply provided employers with the means to change a claima nt’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 [temporary total disability] benefits.

Pierson , 252 A.3d at 1179 ; see also Hutchinson , 260 A.3d at 366 (rejecting a

claimant’s assertion that Act 111 ’s applicability to injuries predating its enactment

renders it improperly retroactive, holding that “the 104

- week and credit provisions

of Act 111 were explicitly given ret roactive effect by the clear language used by the

General Assembly”) . Moreover, this Court has clarified that

Section 3 of Act 111 does not evidence clear legislative intent that the entirety of Act 111 should be given retroactive effect. Instead, it a ppears the General Assembly intended that employers and insurers that relied upon former Section 306(a.2)[, formerly 77 P.S. § 511.2,] to their detriment by not pursuing other methods of a
modification should not bear the entire burden of the provision bei ng declared unconstitutional.

. . . .

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. City of Warren [v. Worker s’ Comp. Appeal Bd. (Haines)] , 156 A.3d [371,] 376 [Pa. Cmwlth. 2017].9

Rose Corp. , 238 A.3d at 562 (footnote omitted). Thus, we conclude that Claimant’s

contention that Act 111 is impermissibly retroactive is also merit less

. 10

Claimant also contends that his November 2019 IRE was premature, as

he had not yet received 104 weeks of total disability benefits following the enactment

of Act 111 in October 2018. See Claimant’s Br. at 10. This argument is directly

contrary to the express language of Act 111. Section 3 (1) of Act 111 provides:

(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 [S]ection 306(a.3)(1) of the [WC A]ct

, [ 77 P.S. § 511.3(1), ] an insurer shall be given credit for weeks of total disability compensation paid prior to the effective date of this paragraph

. [ 11 ] This section shall not
be construed to alter the requirements of [S]ection 306(a.3) of the [WC A]ct.

Section 3(1) of Act 111 (emphasis added) . Thus, “[t] hrough 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. ” Rose Corp. , 238 A.3d at 562 (holding that “[b] ecause [the c]laimant already

10 Claimant also asserts that if limited to 500 weeks of partial disability benefits, th is

benefits period should commence on November 7, 2019, the date of the IRE, as Claimant did not receive payment of partial disability benefits prior to the enactment of Act 111

. See Claimant’s

Br. at 11

. However , the Board already affirmed the WCJ’s conclusion that November 7, 2019
constituted the effective date for Claimant’s chan ge in disability status from total to partial. See C.L. 3; Board Decision at 2 & 7, C.R. at 20 & 25. Thus, Claimant’s 500

- week period of partial disability benefits began on that date. See Section 306(b) of the WC Act, 77 P.S. § 512(1)

. T herefore, Claimant’s contention is moot

.

11 “This 104 weeks is important because, under both the former and current IRE provisions,

a claimant need not attend an IRE until after the claimant receives 104 weeks of total compensation.” Rose Corp. , 238 A. 3d at 561 (citing Section 306(a.3)(1) of the WC Act, 77 P.S. § 511.3(1) ; former Section 306(a.2) (1) of the WC Act, formerly 77 P.S. § 511.2 (1) )

.10

received 104 weeks of total disability benefi ts, under Section 306(a.3)(1), [the

e]mployer [could] seek a new IRE,” as the employer was entitled to credit for the

104 weeks of total disability benefits paid prior to changing the claimant’s disability

status to partial based on a 2013 IRE conducted un der former Section 306(a.2) of

the WC Act

, formerly 77 P.S. § 511.2 ) ; see also Pierson , 252 A.3d at 1179

- 80

(stating that “the General Assembly made it clear in Act 111 that weeks of

[temporary total disability]

. . . paid by an employer/insurer prior to the enactment

of Act 111 count as credit against an employer’s new obligations under Ac t 111,” as

“it stated in plain language it was doing so”)

.

Accordingly, for the foregoing reasons, we affirm.

__________________________________ CHRISTINE FIZZANO CANNON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Leo DeLuca, :

Petitioner :

:

v. :

: Cservak Management Services, LLC : (Workers’ Compensation Appeal : Board), : No. 238 C.D. 2022

Respondent :

O R D E R

AND NOW, this 22 nd day of December , 20 2 2 , the March 1, 2022

decision of the Workers’ Compensation Appeal Board is AFFIRMED.

__________________________________ CHRISTINE FIZZANO CANNON, Judge