IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dawn Rowles, :

Petitioner :

:

v. :

:

Pennsylvania Department of Military :

and Veterans Affairs (Workers’ :

Compensation Appeal Board), : No. 1074 C.D. 2022

Respondent : Submitted: July 14, 2023

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: September 11, 2023

Dawn Rowles (Claimant) petitions for review of an order of the 

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

compensation judge (WCJ). The WCJ granted a modification petition filed by the 

Pennsylvania Department of Military and Veterans Affairs (Employer) and modified 

Claimant’s disability status from total to partial. Claimant posits that the 

modification unconstitutionally limits her workers’ compensation (WC) benefits. 

Upon review, we affirm the Board’s order.

I. Background

The facts relevant to this appeal are not in dispute. On May 29, 2018, 

Claimant sustained a work-related injury to her left elbow. On October 22, 2018, a
2

Notice of Compensation Payable was issued acknowledging an injury of left elbow 

inflammation. By a decision dated February 23, 2021, the description of injury was 

expanded to include chronic myofascial pain and cubital tunnel syndrome.

On July 3, 2021, Employer obtained an impairment rating evaluation

(IRE) of Claimant pursuant to Section 306(a.3) of the Workers’ Compensation Act 

(WC Act),1 77 P.S. § 511.3 (enacted as part of Act 111 of 2018 (Act 111) to replace 

former IRE provisions). Employer filed a modification petition seeking to change 

Claimant’s disability status from total to partial based on the IRE. Such a 

modification does not reduce the weekly WC benefits paid to Claimant, but while 

total disability weekly WC benefits do not automatically terminate, partial disability 

weekly WC benefits are limited to 500 weeks. Whitfield v. Workers’ Comp. Appeal 

Bd. (Tenet Health Sys. Hahnemann LLC), 188 A.3d 599, 602 n.2 (Pa. Cmwlth. 

2018).

In a decision and order dated February 16, 2022, a WCJ granted 

Employer’s petition and modified Claimant’s benefits to partial disability. Claimant 

appealed to the Board, arguing that Act 111 cannot be retroactively applied to her 

claim because her rights were established prior to its passage. Claimant argued that

the IRE process set forth in Act 111 is inapplicable to her and that the resulting 

modification of her WC benefits is a violation of the Pennsylvania Constitution. The 

Board affirmed the WCJ’s decision and order. Claimant then filed a petition for

review in this Court.

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).
3

II. Discussion

On appeal,2 Claimant asserts that she acquired a vested right in her WC 

benefits that predated the enactment of Act 111; therefore, she insists that applying 

Act 111 to limit her benefits is a violation of article I, section 11 of the Pennsylvania 

Constitution, known as the Remedies Clause.

3

 We disagree. “A party challenging 

the constitutionality of a statute must meet a heavy burden. We presume legislation 

to be constitutional absent a demonstration that the statute ‘clearly, palpably, and 

plainly’ violates the Constitution.” DiPaolo v. UPMC Magee Women’s Hosp. 

(Workers’ Comp. Appeal Bd.), 278 A.3d 430, 434 (Pa. Cmwlth. 2022) (quoting 

Konidaris v. Portnoff L. Assocs., Ltd., 953 A.2d 1231, 1239 (Pa. 2008)). Applying 

this standard, we reject Claimant’s constitutional challenge to Act 111.

Under former Section 306(a.2) of the WC Act,4IREs were based on the 

current edition of the American Medical Association Guides to the Evaluation of 

Permanent Impairment (AMA Guides). However, in Protz v. Workers’

2

“This Court’s review in [WC] 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.” DiPaolo v. UPMC Magee Women’s Hosp. (Workers' 

Comp. Appeal Bd.), 278 A.3d 430, 433 (Pa. Cmwlth. 2022) (additional citation and quotation 

marks omitted).

3 The Remedies Clause provides:

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. Suits may be brought against the Commonwealth in such 

manner, in such courts and in such cases as the Legislature may by 

law direct.

PA. CONST. art. I, § 11.

4 Section 306(a.2) of the WC Act was added by Section 4 of the Act of June 24, 1996, P.L. 

350, formerly 77 P.S. § 511.2, and repealed by Act 111.
4

Compensation Appeal Board (Derry Area School District), 161 A.3d 827, 835-36 

(Pa. 2017), our Supreme Court struck Section 306(a.2) from the WC Act in its 

entirety.5 

Act 111 replaced former Section 306(a.2) with Section 306(a.3), 77 P.S. 

§ 511.3. Like the previous provision, Act 111 enabled an employer to require a 

claimant to undergo an IRE6 once the claimant had received at least 104 weeks of 

total disability benefits after sustaining a work-related injury. See Rose Corp. v. 

Workers’ Comp. Appeal Bd. (Espada), 238 A.3d 551, 561 (Pa. Cmwlth. 2020). Act 

111 also reduced the threshold impairment rating for modification of disability status

from 50% (compared to that of a whole and unimpaired person) to 35%, making it 

more difficult for employers to change total disability status to partial disability 

status. Id. at 562. Under Section 306(a.3), as under the previous provision, total 

disability status has no time limit, but partial disability status after modification via 

an IRE is limited to 500 weeks of benefits.7 Id. at 558.

5 Our Supreme Court concluded that by designating the “current” edition of the AMA 

Guides, the former IRE provision impermissibly delegated legislative authority to a private entity, 

the AMA, without safeguards to ensure either General Assembly supervisory authority over the 

AMA Guides used to calculate the results of IREs or accountability of the AMA authors. See 

Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827, 835-36 (Pa. 2017).

6 Act 111 specified that IREs must now be conducted using the 6th Edition of the AMA 

Guides. 

7 The 500-week period for partial disability benefits, based on a showing that the claimant 

has recovered some degree of earning power, predated the 1996 enactment of the previous IRE 

provision, which also adopted the 500-week period. See Goodrich v. Workmen’s Comp. Appeal 

Bd. (Shenango China), 645 A.2d 302, 303-04 & nn.3-4 (Pa. Cmwlth. 1994) (explaining that, 

“[p]ursuant to [former] Section 306(b) of the [WC] Act, 77 P.S. § 512, the statutory period for 

partial disability [was] up to 500 weeks”).
5

Regarding retroactive application of statutes, “retrospective laws which 

have been deemed reasonable are those which impair no contract and disturb no 

vested right, but only vary remedies, cure defects in proceedings otherwise fair, and 

do not vary existing obligations contrary to their situation when entered into and 

when prosecuted.” Bible v. Dep’t of Lab. & Indus., 696 A.2d 1149, 1156 (Pa. 

Cmwlth. 1997) (quoting Krenzelak v. Krenzelak, 469 A.2d 987, 991 (Pa. 1983)). In 

this context, a vested right is “something more than a mere expectation based upon 

an anticipated continuance of existing law”; it must constitute a legal or equitable

right to “present or future enforcement of a demand, or a legal exemption from a 

demand made by another.” Bible, 696 A.2d at 1156 (quoting Lewis v. Pa. R.R. Co., 

69 A. 821, 823 (Pa. 1908)).

Since our Supreme Court’s decision in Protz and the legislature’s 

enactment of Act 111, this Court has repeatedly rejected claimants’ arguments that 

they had vested rights in their total disability status that precluded retroactive 

application of Act 111’s IRE provisions to them. See DiPaolo, 278 A.3d at 435

(observing that “this Court has consistently held that Act 111 does not abrogate or 

substantially impair a claimant’s vested rights in [WC] benefits because there is no 

right to ongoing [total disability] status”) (first citing Hutchinson v. Annville Twp. 

(Workers’ Comp. Appeal Bd.), 260 A.3d 360, 367 (Pa. Cmwlth. 2021); and then 

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

Cmwlth., No. 490 C.D. 2021, filed Mar. 16, 2022)8). 

We recently confirmed this holding again in DiPaolo, explaining:

8 This unreported opinion is cited as persuasive authority pursuant to Section 414(a) of this 

Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
6

[E]ven during the time when the previous IRE provisions 

had been invalidated by the Protz cases but before Act 111 

became effective, employers were not devoid of a means 

to modify a claimant’s benefit status. Section 413(a) of 

the [WC] Act, which has been part of our [WC] legislation 

since its beginning over 100 years ago, has always 

provided employers (as well as claimants) with the general 

ability to seek 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. Section 306(b) of the [WC] 

Act, which also has roots in the early decades of [WC] law, 

specifically enables employers to modify a claimant’s 

disability status from total to partial by showing that the 

claimant has regained some earning power. 77 P.S. § 

512(2). Since the 1996 onset of more cost-efficient IREs, 

employers were less likely to challenge a claimant’s status 

via litigation, but the option was always available. Thus, 

while 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 total 

disability status at any given time because that status has 

always been subject to potential litigation by employers.

278 A.3d at 435-36 (quoting Sochko, slip op. at 13) (internal quotation marks and 

citations omitted). Further, we explained that “Act 111 only enables an employer to 

seek an IRE, which, depending on the results, may or may not allow the employer 

to seek modification of the claimant’s status from [total disability] to [partial 

disability].” Id. Although Claimant asserts that this Court’s well-developed line of 

binding authority on this specific issue is “deeply flawed,” Claimant’s Br. at 9, we 

rejected a similar assertion in DiPaolo that this line of cases was “wrongly decided.” 

278 A.3d at 436. We likewise reject Claimant’s assertion here.

Further, we have previously rejected claimants’ assertions that they

acquired vested rights to total disability benefits because Protz made the prior IRE 
7

provision void ab initio. See, e.g., DiPaolo, 278 A.3d at 438 (citing and discussing 

other decisions). We reject Claimant’s similar argument here.

Finally, Claimant asserts that the language of Act 111 is not sufficiently 

specific to make its application retroactive. We reject Claimant’s contention that 

Act 111 does not specifically indicate a legislative intent to apply Section 306(a.3)

retroactively to claimants with injuries predating its enactment. Act 111’s credit 

provision allows employers who paid partial disability benefits under prior law to

credit the amount of those payments toward the total 500 weeks of allowable partial 

disability WC benefits; it also allows employers who made total disability payments 

to credit the amount of pre-Act 111 total disability payments toward the 104-week 

waiting period before requesting an IRE. In DiPaolo, we concluded the plain 

language of the credit provisions expressed a clear intent to apply to claimants

injured before Act 111’s enactment. 278 A.3d at 436. 

Claimant suggests that Act 111’s language is not specific because it

does not clearly state whether the retroactive credit for partial disability payments 

applies to payments “achieved as a result of unconstitutional IREs or partial 

disability which the claimant received because of modified work or litigation . . . .” 

Claimant’s Br. at 14-15. However, Claimant does not explain why such a distinction 

has any relevance. This Court has previously held that “[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.” Pierson v. Workers’ Comp. Appeal Bd. (Consol. Pa. Coal Co. 

LLC), 252 A.3d 1169, 1180 (Pa. Cmwlth. 2021) (emphasis added) (quoting Rose 

Corp., 238 A.3d at 562 (additional quotation marks omitted)). As the General 

Assembly did not distinguish between total and partial payments in allowing 
8

retroactive credit to employers, we discern no reason to distinguish among different 

reasons for partial payments in concluding that credits for all such payments are 

retroactive.

For all of these reasons, we reject Claimant’s arguments and conclude 

that Act 111’s IRE provisions apply to her.

III. Conclusion

Based on the foregoing discussion, the Board’s order is affirmed.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dawn Rowles, :

Petitioner :

:

v. :

:

Pennsylvania Department of Military :

and Veterans Affairs (Workers’ :

Compensation Appeal Board), : No. 1074 C.D. 2022

Respondent :

O R D E R

AND NOW, this 11th day of September, 2023, the order of the 

Workers’ Compensation Appeal Board dated September 9, 2022, is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge