IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas G. Eiler, :

Petitioner :

:

v. : No. 1299 C.D. 2022

: SUBMITTED: November 6, 2023

City of Philadelphia (Workers ’ :

Compensation Appeal Board), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE STACY WALLACE, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: December 18, 2023

Thomas G. Eiler, Claimant, petitions for review from the decision and

order of the Workers’ Compensation Appeal Board, which affirmed the decision of

the Workers’ Compensation Judge (WCJ) modifying Claimant’s benefits from

Temporary Total Disability (TTD) benefit s to Temporary Partial Disability (TPD)

benefits for 500 weeks. We affirm.

The facts of this case are not in dispute and the matter presents purely

legal issues. Claimant was injured in 2008 in the course of his employment. The

City of Philadelphia, Employer, accepted the injury by notice of compensation

payable. An Independe nt Rating Evaluation (IRE) was completed on January 20,

2022, finding a 15% total body impairment based upon the relevant American

Medical Association impairment guidelines. Based on this

, Employer filed a

petition to modify benefits from TTD to TPD pursu ant to Section 306(a.3) of the2

Workers ’ Compensation Act (Act), 1 which was added by Section 1 of the Act of

October 24, 2018, P.L. 714, No. 111 (Act 111). Counsel for Claimant stipulated to

the modification of temporary benefits from total to partial, effective January 20,

2022, which was approved by the WCJ in her de cision and order. In the stipulation,

Claimant preserved his right to challenge the constitutionality of the IRE provisions

of the Act. Claimant appealed to the Board, which affirmed. Claimant’s petition for

review to this Court ensued.

On appeal, Claimant raises the following issues: (1) whether applying

Act 111 to a claim such as h i s, where the injury occurred before Act 111 ’ s effective

date, would divest Claimant of a vested property right in violation of the right to due

course of law under the R emedies C lause of the Pennsylvania Constitution; 2 and (2)

whether Act 111 constitutes an unconstitutional delegation of legislative authority

.

With regard to his first issue, Claimant argues that Act 111 is

unconstitutional because it allows Employer to request an IRE based upon weeks of

indemnity benefits paid before the effective date of Act 111. Claimant also argues

that Act 111 is a substantive amendment to the Act since it limits a claimant's partial

disability benefits to 500 weeks, whereas before Act 111, claimants could potentially

receive benefits for their lifetime s

. As a result, Claimant argues that Act 111 cannot

1 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. § 511.3. Section 306(a.3) was added by

Section 1 of Act of October 24, 2018, P.L. 714 , No. 111

.

2 The Remedies Clause provides, in relevant part:

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

. . . .

P A

. C ONST . art. I, § 11.3

be applied retroactively to an injury that predates its enactment without violating the

Remedies Clause. Claimant distinguishes Bible v. Department of Labor and

Industry , 696 A.2d 1149 (Pa. 1997) , in which the Pennsylvania Supreme Court held

retroactive application of another provision of the Act did not violate the

Constitution, asserting that there the rights had not yet been adjudicated, whereas

here, they are vested. Claimant asserts “‘[c]laimants have a vested right in the

continuation of workers[’] compensation benefits until found to be ineligible,’”

which cannot be divested without violating the Constitution. [ Claimant ’ s Brief at

26 (quoting Giant Eagle Inc. v. Workers ’ Compensation Appeal Board (Weigand)

,

764 A.2d 663, 666 (Pa. Cmwlth. 2000) ]. Although Claimant recognizes that the

Court rejected a constitutional attack on Act 111 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), Claimant no netheless

asks this Court to reconsider that decision. Regarding his second issue, Claimant

argues that Act 111 is an unlawful delegation of legislative authority and therefore

unconstitutional on that basis as well.

We note that Claimant’s appeal represents only one of numerous

constitutional challenges to Act 111 on similar or, indeed, identical 3 grounds. The

Court has uniformly rejected these arguments. See Pierson (holding that Act 111

does not violate vested rights because of reasonable expectation that TTD benefits

may change under the Act) ; DiPaolo v. UPMC Magee Women’s Hosp. (Workers’

Comp. Appeal Bd.) , 278 A.3d 430 (Pa. Cmwlth. 2022) (same), appeal denied , 278

A.3d 430 (Pa. 2023); Pennsylvania AFL

- CIO v. Commonwealth , 219 A.3d 306 (Pa.

3 S ee Zaborowski v. City of Phila. (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 617 C.D.

2022, filed Mar. 28, 2023).4

Cmwlth. 2019) (Act 111 is not unconstitutional delegation of authority by General

Assembly)

, aff ’ d , (Pa., No. 88 MAP 2019, filed Aug

. 18, 2020)

.

In light of the foregoing, we affirm.

_____________________________________ BONNIE BRIGANCE LEADBETTER,

President J udge EmeritaIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas G. Eiler, :

Petitioner :

:

v. : No. 1299 C.D. 2022

:

City of Philadelphia (Workers ’ :

Compensation Appeal Board), :

Respondent :

O R D E R

AND NOW, this 18 th day of December , 2023, the order of the Workers’

Compensation Appeal Board is AFFIRMED.

_____________________________________ BONNIE BRIGANCE LEADBETTER,

President J udge Emerita