IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kenneth Elliott, :

Petitioner :

:

v. :

:

City of Pittsburgh (Workers’ :

Compensation Appeal Board), : No. 885 C.D. 2022

Respondent : Submitted: October 10, 2023

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: November 6, 2023

Kenneth Elliott (Claimant) petitions for review from the August 11, 

2022, decision and order of the Workers’ Compensation Appeal Board (Board), 

which affirmed the February 10, 2022, decision and order of the Workers’ 

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

Respondent, the City of Pittsburgh (Employer), and changed Claimant’s benefit 

status from temporary total disability (TTD) to temporary partial disability (TPD) 

based on a September 8, 2021, impairment rating evaluation (IRE). Upon review, 

we affirm the Board’s order.
2

I. Factual & Procedural Background

The underlying facts are not in dispute and were presented in a prior 

related matter between the same parties:

In August 2003, Claimant sustained a back injury in the 

course and scope of his employment with [Employer]. In 

December 2012, he underwent an [IRE] provided for in 

former Section 306(a.2) of the Pennsylvania Workers’ 

Compensation Act (Act),[1] which resulted in an 

impairment rating of less than 50%. Employer then filed 

a modification petition, and in a March 2014 decision and 

order, a WCJ modified Claimant’s disability status from 

total to partial as of the December 2012 IRE date. 

In April 2021, Claimant filed a reinstatement petition 

seeking a return to total disability status based on the 

Pennsylvania Supreme Court’s decision in Protz v. 

Workers’ Compensation Appeal Board (Derry Area 

School District), 161 A.3d 827 (Pa. 2017).[2] In 

accordance with this Court’s decision in Whitfield v. 

Workers’ Compensation Appeal Board (Tenet Health 

System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 

2018) (en banc), the WCJ ordered the reinstatement to be 

effective as of the date of Claimant’s reinstatement 

petition.

Claimant appealed to the Board, arguing that his 

reinstatement should have been effective as of the 2012 

modification date. The Board affirmed the WCJ’s 

decision and order.

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

In Protz, our Supreme Court held that former Section 306(a.2) unconstitutionally 

delegated legislative authority to a private party, the American Medical Association (AMA),

concerning the standards in the AMA Guides used to determine IRE ratings. 161 A.3d at 837-38. 

Concluding that the problematic language in former Section 306(a.2) could not be severed from 

the rest of the section, our Supreme Court held that the entirety of former Section 306(a.2) was 

unconstitutional and struck it from the Act. Id. at 840-41.
3

Elliott v. City of Pittsburgh (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 352 

C.D. 2022, filed Feb. 6, 2023), 2023 WL 1773950 (unreported) (affirming on basis 

that reinstatement was only warranted as of Claimant’s post-Protz April 2021 

reinstatement petition and not as of the original IRE and modification to TPD benefit 

status in December 2012). 

After the April 2021 reinstatement of Claimant’s TTD benefit status, 

Employer filed a modification petition on September 9, 2021, stating that Claimant 

underwent a second IRE on September 8, 2021, which returned an impairment rating 

of 8%. Certified Record (C.R.) at 25. Employer asserted that under Act 111,3 which 

replaced former Section 306(a.2) of the Act and restored the IRE process in October 

2018, Claimant’s benefit status should again be modified from TTD to TPD.

4

 

During the litigation, the doctor who performed Claimant’s IRE stated in a 

deposition that the highest possible impairment rating in the American Medical 

Association’s IRE Guides for Claimant’s spinal injury, an annular tear at L2-L3, was 

33%, two points below Act 111’s 35% threshold for an IRE to result in modification 

of a claimant’s status from TTD to TPD. C.R. at 26. 

The WCJ granted Employer’s modification petition in a February 10, 

2022, decision and order, which acknowledged that Claimant raised and preserved 

constitutional claims regarding Act 111. C.R. at 25-27. The Board affirmed, 

acknowledging that it did not have the authority to rule on the constitutionality of 

the Act, but citing authority from this Court upholding Act 111 and its “credit 

provisions,” which allow employers to claim credit for weeks of partial benefits paid 

3 Act of October 24, 2018, P.L. 714, No. 111.

4 Act 111 lowered the previous IRE statute’s threshold for modification from 50% to 35% 

but maintained the 500-week duration of TPD benefits as compared with TTD benefits, which 

have no time limit. 77 P.S. §§ 511.3, 512(1).
4

to claimants prior to Act 111. Id. at 42-44. The practical effect of these decisions is 

that Employer no longer pays Claimant any benefits, as his 500 weeks of TPD have 

expired. Elliott, slip op. at 2-3 n.2, 2023 WL 1773950, at *1 n.2. Claimant has 

appealed to this Court.

II. Issues

Claimant raises two constitutional issues.5 First, he asserts that Act 111 

violates the due process and due course of law protections of the Pennsylvania 

Constitution. Next, he asserts that Act 111 violates article III, section 18 of the 

Pennsylvania Constitution, Pa. Const. art. III, § 18, because the IRE process does 

not result in “reasonable compensation” for injured workers. Claimant’s Br. at 4. 

III. Discussion

A. Due Process and Due Course of Law

Claimant first asserts that Act 111 cannot be applied to instances where 

the work-related injury occurred prior to Act 111’s effective date of October 24, 

2018. Claimant’s Br. at 14-34. The essence of Claimant’s argument is that when 

our Supreme Court struck the former IRE provision in Protz as unconstitutional, that 

decision entailed full retroactivity, rendered the former IRE provision void ab initio,

and restored the legal status quo to the time before the IRE process was implemented 

into the Act in 1996. Id. At that time, a claimant’s total disability status could not 

be modified to partial unless the employer established with medical evidence that 

the claimant’s disability, or lack of earning power via inability to work, had lessened. 

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).
5

Id.; see DiPaolo v. UPMC Magee Women’s Hosp. (Workers’ Comp. Appeal Bd.), 

278 A.3d 430, 435 (Pa. Cmwlth. 2022) (discussing Section 413(a) of the Act, 77 

P.S. § 772). Claimant posits that after Protz, the IRE provisions were rendered void 

ab initio, claimants retained vested rights in TTD benefit status until and unless the 

employer met the previous burden for modification, and that applying the “credit 

provisions” of Act 111 to claimants whose injuries occurred before October 24, 

2018, violated those vested rights as set forth in the Pennsylvania Constitution’s due 

process and remedies clauses. Id.; see Pa. Const. art. I, §§ 1 & 11.6 Employer points 

to this Court’s previous decisions rejecting these arguments and asserts that those 

decisions were correctly reasoned. Employer’s Br. at 5-21.

As Employer aptly observes, this Court has repeatedly rejected 

Claimant’s arguments based on due process and due course of law. In DiPaolo, we 

stated: “[W]hile 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 [TTD] status at any given time because that status has always been subject to 

potential litigation by employers.” 278 A.3d at 435-36. Therefore, “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.” Id. at 435. As such, Act 111 violates neither due process nor due 

course of law constitutional protections when applied to claimants whose injuries 

preceded Act 111’s effective date of October 24, 2018. Id. at 438. Claimant has 

raised no new arguments in this regard in his brief to this Court; therefore, we decline 

to revisit our settled precedent on this issue. Claimant’s first claim is meritless.

6 The Pennsylvania Association for Justice has filed an amicus brief in this matter with 

similar arguments.
6

B. Article III, Section 18 of the Pennsylvania Constitution

Claimant next argues that Act 111, which restored the IRE to the Act, 

violates article III, section 18 of the Pennsylvania Constitution because the IRE 

process does not result in “reasonable compensation” for injured workers. 

Claimant’s Br. at 34-46. Employer relies on this Court’s previous decisions rejecting 

the same arguments Claimant poses here. Employer’s Br. at 5-21.

Article III, section 18 of the Pennsylvania Constitution states, in 

relevant part:

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 (emphasis added). 

In DiPaolo, we observed that article III, section 18 “has traditionally 

been the subject of litigation over the reasonability of amounts or rates of 

compensation received by a claimant.” 278 A.3d at 439 (citing Rich Hill Coal Co. 

v. Bashore, 7 A.2d 302 (Pa. 1939); Keystone Trucking Corp. v. Workmen’s Comp. 

Appeal Bd., 397 A.2d 1256 (Pa. Cmwlth. 1979); and Rudy v. McCloskey & Co., 30 

A.2d 805 (Pa. Super. 1943)); see also Zahrobsky v. Westmoreland Coal Co., 25 A.2d 

823, 824 (Pa. 1943) (discussing article III, section 18 and stating that “[w]ithin the 

limitation of reasonableness, the legislature is constitutionally empowered to fix 

both maximum and minimum rates of compensation”).
7

In DiPaolo, the claimant’s article III, section 18 challenge asserting that 

the IRE process does not result in reasonable compensation presented a question of 

first impression. We analyzed pre-Protz case law addressing the IRE process, 

including Whitfield, which concluded that in the workers’ compensation context, 

disability usually pertains to lost earning power, but is also a “term of art” that can 

relate to a claimant’s status as being totally or partially disabled. DiPaolo, 278 A.3d 

at 440. We also considered Diehl v. Workers’ Compensation Appeal Board (IA 

Construction), 972 A.2d 100, 107 (Pa. Cmwlth. 2009), which held 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. We then concluded:

As the foregoing cases illustrate, this Court has not found 

IREs to be inherently unreasonable as an alternate 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. 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.

DiPaolo, 278 A.3d at 441. 

Claimant critiques DiPaolo, stating that while the General Assembly’s 

purpose for enacting the original IRE provisions in 1996 may have been rational and 

based on an appropriate balancing of workers’ and employers’ interests, that 

legislation did not result in reasonable compensation under the constitutional 

standard. Claimant’s Br. at 35-36. Claimant asserts that cutting off TPD benefits at 

500 weeks based on an evaluation of impairment as a physical and functional matter,
8

rather than on an evaluation of disability that requires consideration of the claimant’s 

ability to work and earn, cannot result in reasonable compensation. Id. at 37-40. 

Claimant adds that in his case, using an IRE to modify his status to TPD is 

particularly unreasonable because the maximum impairment rating for his particular 

injury is 33%, which is two points below Act 111’s 35% threshold for modification,

the import being that under the IRE regime, Claimant’s injury could never qualify 

him to remain on TTD regardless of his asserted inability to resume working and 

restore his earning power. Id. at 39.

Claimant’s article III, section 18 position, which depends on the preIRE method of modification, resembles his due process/due course of law argument. 

Here, the challenge is aimed at the IRE process itself rather than its application to 

claimants whose injuries preceded Act 111’s October 2018 effective date. However, 

the result is the same. In DiPaolo, we established that even though an IRE does not 

evaluate disability as a measure of lost earning power, it is not an inherently 

unreasonable method for an employer to use in seeking to change a claimant’s 

benefit status. 278 A.3d at 440-441. As such, we concluded that when an IRE 

returns an impairment rating below 35% and a claimant’s benefit status is modified 

to TPD, with its 500-week cutoff, that modification does not result in a violation of 

the “reasonable compensation” language in article III, section 18.7 Id. Claimant’s 

7 Claimant’s specific assertion that modification of his benefit status to TPD based on his 

September 2021 IRE results in unreasonable compensation because the maximum impairment 

rating in the AMA Guides for his specific spinal injury is only 33%, which is 2 percentage points 

below Act 111’s modification threshold of 35%, is unavailing. Even if Claimant cannot attain or 

restore TTD status under the IRE regime, the Act has always provided both claimants and 

employers with the general ability to petition for a change in benefits at any time based on “proof 

that the disability of an injured employe has increased, decreased, recurred, or has temporarily or 

finally ceased.” 77 P.S. § 772. In any such litigation, Claimant would have the opportunity to 

testify and/or present medical evidence that, regardless of the AMA Guides and his IRE results, 

his earning power was such that his status should not have been modified to TPD. See DiPaolo, 

278 A.3d at 435-36.
9

arguments in this matter do not establish that DiPaolo was incorrectly decided.

Therefore, Claimant’s second claim is also meritless.

IV. Conclusion

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

employers to credit 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
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kenneth Elliott, :

Petitioner :

:

v. :

:

City of Pittsburgh (Workers’ :

Compensation Appeal Board), : No. 885 C.D. 2022

Respondent :

O R D E R

AND NOW, this 6

th day of November, 2023, the August 11, 2022, order 

of the Workers’ Compensation Appeal Board is AFFIRMED.

 

__________________________________

CHRISTINE FIZZANO CANNON, Judge