IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kirk Wescoe, :

Petitioner :

:

v. : No. 1010 C.D. 2021

: Submitted: March 4, 2022

Fedchem, LLC and State Workers’ : 

Insurance Fund (Workers’ :

Compensation Appeal Board), :

Respondents :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE DUMAS FILED: August 16, 2022

Kirk Wescoe (Claimant) has petitioned this Court to review an 

adjudication of the Workers’ Compensation Appeal Board (Board), which affirmed 

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

petition to modify compensation benefits filed by Fedchem, LLC (Employer). In 

this appeal, Claimant challenges as unconstitutional the retroactive application of

Act 111,

1 which altered the criteria for modification of a claimant’s benefits based 

on the results of an impairment rating evaluation (IRE). Upon review, this case is 

controlled by Pierson v. Workers’ Compensation Appeal Board (Consol 

Pennsylvania Coal Co.), 252 A.3d 1169 (Pa. Cmwlth.), appeal denied, 261 A.3d 

1 Act of October 24, 2018, P.L. 714, No. 111 (Act 111). Act 111 repealed Section 306(a.2) of the 

Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by the Act 

of June 24, 1996, P.L. 350, formerly 77 P.S. §511.2, and added Section 306(a.3), 77 P.S. §511.3. 
2

378 (Pa. 2021), in which this Court previously rejected similar claims. Thus, we 

affirm. 

I. BACKGROUND

On September 8, 2011, Claimant sustained a work-related injury to his 

lower back.

2

 Employer acknowledged the injury as a lower back strain in a notice 

of compensation payable, which was later amended to include an L4-5 disc 

herniation with radiculopathy. Claimant received disability benefits at a weekly rate 

of $858 based upon an average weekly wage of $1,329.64.3 

On November 5, 2019, Employer filed a modification petition alleging 

that Claimant had a whole-body impairment rating of 13%. The WCJ held hearings, 

at which Employer presented testimony from Lucian Bednarz, M.D., a boardcertified physiatrist. Dr. Bednarz performed an IRE of Claimant under the Sixth 

Edition of the American Medical Association’s Guides to the Evaluation of 

Permanent Impairment (AMA Guides) (second printing April 2009). 

In response, Claimant presented the testimony of Maxime Gedeon, 

M.D., a board-certified interventional pain management physician. Dr. Gedeon 

conceded that he is not certified to perform an IRE but cautioned that Claimant’s 

symptoms wax and wane based upon the treatment that he receives. Claimant also 

testified about his injury, the symptoms he continues to experience, and the various 

treatments he has received.

2 Unless stated otherwise, we adopt the factual background for this case from the Decision 

of the WCJ, entered December 7, 2020, which is supported by substantial evidence of record. See

WCJ Decision, 12/7/20, at 3-8.

3 This case has a lengthy procedural history, which we need not discuss in detail. 

Nevertheless, we note that, in August 2016, Employer filed a separate petition to modify benefits. 

Based upon a labor market survey, the WCJ ultimately reduced Claimant’s benefits to $673.09 per 

week as of August 3, 2016. See WCJ Decision, 9/22/20. There is no dispute before us regarding 

that decision.
3

Upon considering this evidence, the WCJ credited the testimony of Dr. 

Bednarz over that of Dr. Gedeon. The WCJ concluded that Employer established 

that Claimant had a whole-body impairment of 13% and, therefore, granted 

Employer’s petition, modifying Claimant’s benefits to partial disability status 

effective April 5, 2019.

Claimant appealed to the Board, which affirmed. See Bd. Op. & Order, 

9/8/21. Claimant then timely petitioned this Court for review.

II. ISSUE

Claimant challenges the Board’s retroactive application of Act 111. 

Claimant’s Br. at 4. According to Claimant, because the IRE provisions in Act 111 

present a substantive change in the law, these provisions may only apply

prospectively. Id. at 6. Further, Claimant asserts that he has a vested right to his 

disability benefits. Id. at 9. Thus, according to Claimant, the Board violated the 

Remedies Clause of the Pennsylvania Constitution when it granted Employer a 

credit for those weeks of total disability benefits paid prior to the enactment of Act 

111. See id. at 9-10.4 Claimant’s claims are without merit.5 

III. ANALYSIS

In a workers’ compensation appeal, our review is limited to determining 

whether an error of law was committed, whether constitutional rights were violated, 

and whether necessary findings of fact are supported by substantial evidence. Bryn 

4 The Remedies Clause provides that “every man for an injury done him in his lands, goods, 

person or reputation shall have remedy by due course of law . . . [.]” PA. CONST. art. I, §11. The 

Remedies Clause prohibits the enactment of retroactive legislation if its application would 

extinguish a “vested right.” Konidaris v. Portnoff Law Assocs., Ltd., 953 A.2d 1231, 1242 (Pa. 

2008).

5 For its part, Employer flatly rejects these claims, asserting that this Court has previously 

determined that Act 111 is constitutional and applies retroactively. See Employer’s Br. at 8 (citing 

in support Pierson).
4

Mawr Landscaping Co. v. Workers’ Comp. Appeal Bd. (Cruz-Tenorio), 219 A.3d 

1244, 1252 n.5 (Pa. Cmwlth. 2019) (citation omitted).

A. Recent Case Law and the Legislative Response

A brief overview of the recent case law and statutory developments will 

provide appropriate context to Claimant’s appeal. Under former Section 306(a.2)(2)

of the Act, 77 P.S. § 511.2 (repealed), the General Assembly authorized the use of 

an IRE to determine a claimant’s disability status. Former Section 306(a.2)(2) 

required a physician to perform an IRE in accordance with the methodology set forth 

in “the most recent edition” of the AMA Guides. See 77 P.S. § 511.2(2) (repealed). 

If the IRE yielded a whole-body impairment rating equal to or greater than 50%, 

then the claimant was presumed to be totally disabled, whereas a claimant with an 

impairment rating less than 50% was considered partially disabled. See id.6 At the 

time former Section 306(a.2) was enacted, “the most recent edition” of the AMA 

Guides was the Fourth Edition. Thereafter, the American Medical Association

issued a Fifth Edition and Sixth Edition of the AMA Guides. 

In 2015, this Court determined that former Section 306(a.2) of the Act 

was an unconstitutional delegation of legislative authority because it proactively 

approved new versions of the AMA Guides without review. Protz v. Workers’ 

Comp. Appeal Bd. (Derry Area Sch. Dist.), 124 A.3d 406, 416 (Pa. Cmwlth. 2015), 

aff’d in part and rev’d in part, 161 A.3d 827, 841 (Pa. 2017) (Protz II). Rather than

striking former Section 306(a.2) in its entirety, we remanded the matter to the Board 

with instructions that any IRE must adhere to the Fourth Edition of the AMA Guides, 

which was in effect at the time the General Assembly enacted former Section 

6 A change in disability status does not alter the amount of compensation received by a 

claimant but limits the receipt of benefits to 500 weeks. See Section 306(b) of the Act, 77 P.S. § 

512(1).
5

306(a.2). Id. Upon further review, our Supreme Court affirmed this Court’s holding 

that former Section 306(a.2) impermissibly delegated legislative power to a private 

entity. However, it concluded that the offending language, i.e., “the most recent 

edition” of the AMA Guides, could not be severed from the Act. Accordingly, the 

Supreme Court declared the entirety of former Section 306(a.2) to be 

unconstitutional. Protz II, 161 A.3d at 841.

Subsequently, the General Assembly passed Act 111, which replaced 

former Section 306(a.2) of the Act with new Section 306(a.3). Similarly, Section 

306(a.3)(1) provides that once a claimant receives 104 weeks of total disability 

compensation, an insurer or employer may require the claimant to submit to an IRE. 

77 P.S. § 511.3. However, Section 306(a.3) of the Act enacted new standards for an 

IRE. It expressly adopted the Sixth Edition of the AMA Guides (second printing 

April 2009) as the basis for a qualified physician’s IRE, and it reduced the threshold 

required for a total disability status from a 50% whole-body impairment rating to 

35%. Id.7 

Recently, in Pierson, this Court addressed the retroactive application of 

Act 111. In that case, the claimant had sustained a work-related injury in 2014, prior 

to the passage of Act 111. Pierson, 252 A.3d at 1171. The Board granted the 

employer’s petition to modify the claimant’s disability status from total to partial 

based on an IRE performed after the effective date of Act 111. Id. at 1172. On 

appeal to this Court, the claimant argued that (1) Act 111 cannot be applied 

retroactively because it represents a substantive, not a procedural, change in the law; 

7

In Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306, 317 (Pa. Cmwlth. 2019), 

aff’d (Pa., No. 88 MAP 2019, filed August 18, 2020) (per curiam), this Court determined that 

Section 306(a.3) of the Act does not constitute an unconstitutional delegation of legislative 

authority because the General Assembly named and adopted a particular set of standards as its 

own. 
6

and (2) applying Act 111 to injuries predating its enactment would impair his vested 

disability rights in violation of the Remedies Clause. Id. at 1175. 

In rejecting these arguments, we explained that a vested right is “one 

that so completely and definitely belongs to a person that it cannot be impaired or 

taken away without the person’s consent.” Id. at 1179 (cleaned up). Yet, we 

observed, “there are reasonable expectations under the Act that benefits may 

change.” Id.; see also Section 413(a) of the Act, 77 P.S. § 772 (providing that a

WCJ may “modify, reinstate, suspend, or terminate” benefits at any time “upon 

proof that the disability of an injured” employee has changed). Thus, Act 111 did 

not deprive claimants of a vested right but “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 [total temporary disability] benefits.” 

Pierson, 252 A.3d at 1179.

Further, the General Assembly specified using “clear language” that 

employers/insurers were entitled to credit for the weeks of disability compensation

paid to an injured employee prior to the passage of Act 111. See id. at 1179-80 

(quoting Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada), 238 A.3d 551, 561-

62 (Pa. Cmwlth. 2020)); see also Act 111, § 3(1) (“[A]n insurer shall be given credit 

for weeks of total disability compensation paid prior to the effective date of this 

paragraph.”), § 3(2) (“[A]n insurer shall be given credit for weeks of partial disability 

compensation paid prior to the effective date of this paragraph.”). Therefore, the 

employer credit provision was “explicitly given retroactive effect . . . by the General 

Assembly.” Pierson, 252 A.3d at 1180.
7

B. Pierson is Dispositive

Our analysis in Pierson is directly applicable and controlling here. 

Claimant, like the claimant in Pierson, sustained his work-related injury before the 

passage of Act 111. Employer, like the employer in Pierson, sought to modify 

Claimant’s benefits based on an IRE obtained after the Act’s effective date. 

Claimant, like the claimant in Pierson, challenges the retroactivity of the employer 

credit provision of Act 111 and asserts a vested right in his disability benefits.

Therefore, based on our reasoning in Pierson, we reject Claimant’s arguments. 

Accord Sochko v. Nat’l Express Transit Serv. (Workers’ Comp. Appeal Bd.) (Pa. 

Cmwlth., No. 490 C.D. 2021, filed March 16, 2022); Hender-Moody v. Am. Heritage 

Fed. Credit Union (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 166 C.D. 2021, 

filed February 15, 2022); Dohn v. Beck n’ Call (Workers’ Comp. Appeal Bd.)

(Pa. Cmwlth., No. 103 C.D. 2021, filed September 20, 2021).8

IV. CONCLUSION

For the foregoing reasons, we conclude that the Board’s application of 

Act 111 in modifying Claimant’s benefits to partial disability status did not violate 

the Remedies Clause found in article I, section 11 of the Pennsylvania Constitution

because Claimant does not have a vested right to workers’ compensation benefits. 

Thus, we affirm the Board’s adjudication.

 

 LORI A. DUMAS, Judge

8 We cite Sochko, Hender-Moody, and Dohn for their persuasive value pursuant to Rule 

126(b)(1) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 126(b)(1), and Section 

414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kirk Wescoe, :

Petitioner :

:

v. : No. 1010 C.D. 2021

:

Fedchem, LLC and State Workers’ : 

Insurance Fund (Workers’ :

Compensation Appeal Board), :

Respondents :

O R D E R

AND NOW, this 16

th day of August 2022, the order of the Workers’ 

Compensation Appeal Board, entered September 8, 2021, is AFFIRMED.

 

 LORI A. DUMAS, Judge