IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

Timothy F. Smith, : 

 : 

 Petitioner : 

 : 

 v. : No. 659 C.D. 2022 

 : Submitted: April 21, 2023 

Pennsylvania Game Commission : 

(Workers’ Compensation Appeal : 

Board), : 

 : 

 Respondent : 

BEFORE: HONORABLE ANNE E. COVEY, Judge 

 HONORABLE MICHAEL H. WOJCIK, Judge 

 HONORABLE STACY WALLACE, Judge 

OPINION NOT REPORTED 

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: August 7, 2023 

 Timothy F. Smith (Claimant) petitions for review of the order of the 

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

compensation judge (WCJ) that granted the Modification Petition of the 

Pennsylvania Game Commission (Employer) based on an Impairment Rating 

Evaluation (IRE), and modified Claimant’s benefits from total to partial disability 

status. Claimant challenges as unconstitutional the retroactive application of Act 

111 of 2018 (Act 111), which added Section 306(a.3) of the Workers’ Compensation 
2 

Act (WC and Act, respectively),1 altering the criteria for determining a claimant’s 

disability status and providing that an impairment rating of less than 35% constitutes a 

partial disability, and providing a credit for disability payments already made. 

Claimant maintains that Act 111 cannot be constitutionally applied to workers whose 

injuries occurred before October 24, 2018, the effective date of Act 111. We affirm. 

 The facts are not in dispute. On May 19, 2010, Claimant sustained a 

work-related neck injury while in the course and scope of his employment. Pursuant 

to a November 9, 2011 WCJ decision, Claimant’s Claim Petition for WC benefits 

was granted. In an August 16, 2013 decision relating to a Review Benefits Offset 

Petition, the WCJ indicated that Claimant was continuing to receive WC benefits 

and clarified the amount of a pension offset and an unemployment compensation 

credit. In a July 18, 2017 decision approving a Stipulation relating to a Review 

Compensation Benefits Petition, Claimant’s injury description was amended and the 

ongoing pension offset was confirmed. 

 On October 7, 2021, Employer filed the instant Modification Petition 

based on an IRE following an examination by Lucien Bednarz, M.D. (Dr. Bednarz), 

on August 27, 2021. See Reproduced Record (RR) at 1a-10a. At a November 9, 

2021 WCJ hearing, no testimony was taken, and Claimant stipulated to the 

admission of Dr. Bednarz’s IRE Report. Claimant also indicated that he was not 

presenting any evidence, and that the Modification Petition was being defended 

based upon a constitutional challenge. See id. at 27a-28a. 

 On December 28, 2021, the WCJ issued a decision and order granting 

Employer’s Modification Petition in which he made the following relevant finding 

of fact: 

1

 Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 24, 2018, P.L. 

714, No. 111 (Act 111), 77 P.S. §511.3. 
3 

[]Claimant does not dispute that he attended an [IRE] with 

Dr. Bednarz on August 27, 2021[,] and that Dr. Bednarz 

found that he had a 16% whole[-]person impairment. 

Pursuant to Act 111, this is sufficient to deem all future 

benefits partial disability and counting towards the five 

hundred[-]week limit pursuant to the Act. Employer is 

entitled to a modification of Claimant’s wage loss benefits 

from temporary total disability [(TTD)] to temporary 

partial disability [(TPD)] effective August 27, 2021. 

Consistent with the above decisions, Claimant received 

more than 104 weeks of temporary total disability benefits. 

Dr. Bednarz concluded that [] Claimant had reached 

maximum medical improvement and had a total 

impairment rating of 16%. 

WCJ 12/28/21 Decision at 3. 

 Accordingly, the WCJ issued an order granting Employer’s 

Modification Petition, and modifying Claimant’s WC benefits from TTD to TPD 

effective August 27, 2021. See WCJ 12/28/21 Decision at 5. The Board affirmed 

the WCJ’s decision on appeal, and Claimant filed this petition for review of the 

Board’s order.2

 The only claim that Claimant raises on appeal is that the Board erred in 

affirming the WCJ’s decision because the provisions of Act 111 are unconstitutional. 

Specifically, Claimant argues that Act 111 violates his rights as guaranteed by the 

Due Process and Remedies Clauses of article I, sections 1 and 11 of the Pennsylvania 

Constitution,3 and his right to “reasonable compensation” as guaranteed by article 

III, section 18 of the Pennsylvania Constitution.4

2

 Our scope of review is limited to determining whether constitutional rights were violated, 

whether the adjudication is in accordance with the law, and whether the necessary findings of fact 

are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 

§704. 

3

 Pa. Const. art. I, §§1, 11. 

4

 Pa. Const. art. III, §18. 
4 

 However, as acknowledged by Claimant in his appellate brief, this 

Court has previously rejected these precise constitutional claims. As a result, we 

will not accede to Claimant’s request to reexamine our prior precedent, and we rely 

upon the rationales expressed in our prior opinions to affirm the Board’s order in 

this case. DiPaolo v. UPMC Magee Women’s Hospital (Workers’ Compensation 

Appeal Board), 278 A.3d 430 (Pa. Cmwlth. 2022), appeal denied, 290 A.3d 237 (Pa. 

2023); Pierson v. Workers’ Compensation Appeal Board (Consol Pennsylvania 

Coal Company, LLC), 252 A.3d 1169 (Pa. Cmwlth.), appeal denied, 261 A.2d 378 

(Pa. 2021); Hardik v. Community Health Systems (Workers’ Compensation Appeal 

Board) (Pa. Cmwlth., No. 385 C.D. 2022, filed May 17, 2023); Harold v. Abate 

Irwin, Inc. (Workers’ Compensation Appeal Board) (Pa. Cmwlth., No. 879 C.D. 

2021, filed June 13, 2022).5

 Accordingly, the Board’s order is affirmed. 

MICHAEL H. WOJCIK, Judge 

5 See Pa.R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an 

unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. Nonprecedential decisions . . . may be cited for their persuasive value.”). 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

Timothy F. Smith, : 

 : 

 Petitioner : 

 : 

 v. : No. 659 C.D. 2022 

 : 

Pennsylvania Game Commission : 

(Workers’ Compensation Appeal : 

Board), : 

 : 

 Respondent : 

O R D E R 

 AND NOW, this 7th day of August, 2023, the order of the Workers’ 

Compensation Appeal Board dated June 3, 2022, is AFFIRMED. 

 

__________________________________ 

MICHAEL H. WOJCIK, Judge