IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joanne Hardik , : Petitioner :

: v. : No. 385 C .D. 202 2
: Submitted: March 24 , 2023 Community Health Systems (Workers’ : Compensation Appeal Board) , : Respondent :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE DUMAS FILED: May 17, 2023

Joanne Hardik (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 Community Heal th Systems ( E mployer). 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). U pon review, this case is controlled by Pierson v. Workers’ Compensation Appeal Board (Consol
P ennsylvania Coal Co.) , 252 A.3d 1169 (Pa. Cmwlth.), appeal denied , 261 A.3d 378 (Pa. 2021), in which this Court previously rejected similar claims. Thus, we affi rm.

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 Act 111 repealed Section 306(a.2) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended , added by the Act of June 24, 1996, P.L. 350, formerly 77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 Sec tion 306(a.3), 77 P.S. § 511.3.2 I. BACKGROUND On July 11, 2013, Claimant suffered a work

- related injury , which aggravated preexisting injuries to her back and resulted in total disability benefits. On March 12, 2021, Employer filed a modification petition alleging that Claimant’s
benefit status must be modified from total to partial based upon a February 2 5, 2021 IRE by Dr. Michael Wolk.

The WCJ held a hearing, following which Employer introduced th e deposition testimony of Dr. Wolk and the IRE. Notes of Testimony (N.T.) Hr’g, 7/13/21, at 8. Dr. Wolk stated that Claimant had a whole

- body impairment rating of
27% and that she had reached maximum medical improvement (MMI) . N.T. Wolk Dep., 7/6/21, at 1 1

- 12. Dr. Wolk performed the IRE under the Sixth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides). Id. at 12. Claimant did not present any testimony and stated tha t she would only be challenging the constitutionality of Act 111. N.T. Hr’g, 7/13/21, at
6

- 7 ; N.T. Hr’g, 4/13/21, at 7.

The WCJ held that Employer established that Claimant had reached
MMI and had a whole

- body impairment of 27 %. WCJ’s Op., 3 / 23 / 2 2 , at 6. Thus, the WCJ granted Employer’s petition, modifying Claimant’s benefit to partial disability status effective February 25, 2021. Claima nt appealed to the Board, which
affirmed. See Bd. Op. & Order, 3 / 23 /22. Claimant timely petitioned this Court for
review.3 II. ISSUE S 2
Claimant contends that retroactive application of Act 111 to her pre

- Act 111 injury is unconstitutional. Claimant’s Br. at 11. In support , Claimant reasons she has a vested right to WC benefits , which cannot be retroactively altered by law. Id.
at 11

- 12. In Claimant’s view, Act 111’s retroactive application d eprived her of the right
to vested benefits and limited her total payments

. Id. at 12 , 15. Claimant assails
Pierson as flawed becaus e it held that Act 111 did not alter any substantive rights. Id.
at 15

- 16. In support, Claimant alleges that Dana Holding Corporation v. Workers’ Compensation Appeal Board (Smuck) , 232 A.3d 629, 647 (Pa. 2020) ( Dana ) , undermined Pierson’s holding because the Dana Court “specifically held that Act 111 altered a substantive right to benefits.” Id. at 16. Claimant also argues that Act 111 lacks “sufficiently specific language to make the law retroactive.” Id. at 20. 3
III. DISCUSSION In 2018, the General Assembly passed Act 111, which authorizes the use of an IRE to determine a claimant’s disability status. 4 Among its provisions, Section 306(a.3) , the employer may require a claimant to submit to an IRE after receiving 104 weeks of total disability compensation. Section 306(a.3) expressly adopted the Sixth Edition of the AMA Guides (second printing April 2009) as the basis for a

2 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 substant ial evidence. Bryn Mawr Landscaping Co. v. Workers’ Comp. Appeal Bd. (Cruz

- Tenorio) , 219 A.3d 1244, 1252 n.5 (Pa. Cmwlth. 2019) (citation omitted).

3 Employer rejects these claims, asserting that Act 111 is constitutional and applies retroactively. See Employer’s Br. at 11

- 15 (citing in support, inter alia , Pierson ). Further, Employer reasons that the holding of Dana was limited to cases pending on a ppeal when our Supreme Court issued Protz v. Workers’ Comp ensation Appeal B oard (Derry Area Sch ool Dist rict ) , 161 A.3d 827 (Pa. 2017). Id. at 16. Employer argues that Pierson re jected Claimant’s argument that Act 111 could not apply retroactively. Id. at 17

- 18.

4 Prior law governing the IRE process was deemed an unconstitutional delegation of legislative authority. Protz , 161 A.3d at 841

.4

qualified physician’s IRE, and it set the threshold required for a total disability status
at 35% whole

- body impairment. Id. 5 If a cla imant’s impairment rating is less than 35%, the n the claimant shall be considered partially disabled. 6

I n Pierson , this Court determined that Act 111 did not deprive claimants of a vested right but “simply provided employers with the means to change a
cla imant’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 granted employers/insurers credit for the weeks of disability compensation paid to an injured employer prior to the passage of Act
111. Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada) , 238 A.3d 551, 561

- 62 (Pa. Cmwlth. 2020) ; see also Section 3(1) of Act 111 (“[A]n insurer shall be given credit for weeks of total disability compensation paid prior to the effective date of this paragraph.”), Section 3(2) of Act 111 (“[A]n insurer shall be given credit for weeks of partial disa

bility 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.

Our analysis in Pierson is dispositive here. Claimant, like the claimant
in Pierson , sustained her work

- related injury before the passage of Act 111. See
Pierson , 252 A.3d at 1171. Employer, like the employer in Pierson , sought to modify
Claimant’s benefits based on an IRE obtained after the Act’s effective date. See id.

5 In Pennsylvania AFL

- CIO v. Commonwea lth , 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 A change in disability status d oes 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

at 1172. Claimant, like the claimant in Pierson , challenges the retroactivity of the employer credit provision of Act 111 and asserts a vested right i n her disability
benefits. See id. at 1175. To the extent Claimant contends that Dana undermined
Pierson , Claimant is mistaken. As Employer correctly observed, t he issue before
the Dana Court was whether Protz should apply only to cases then

- pending on direct appeal. See Dana , 232 A.3d at 636 ; see also Scampone v. Highland Park Care Ctr.,
LLC , 57 A.3d 582, 604 (Pa. 2012) (cautioning against cherry

- picking phrases out of

context ). Because Pierson post

- dated Dana , the validity of Pierson’s analysis wa s simply not before the Dana Court. Therefore, based on our reasoning in Pierson , we reject Claimant’s arguments. Accord DiPaolo v. UPMC Magee Women’s Hosp. (Workers’ Comp. Appeal Bd.) , 278 A.3d 430, 438 (Pa. Cmwlth. 2022), appeal denied , 290 A.3d 237 (Pa. 2023) ; Force v. Cmwlth. of Pa. (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 63 C.D. 2022, filed Nov. 10, 2022); Wescoe v. Fedchem, LLC (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 1 010 C.D. 2021, filed Aug. 16, 2022); Sochko v. Nat’l Express Transit Serv. (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 490 C.D. 2021, filed Mar. 16, 2022); Hender

- Moody v. Am. Heritage Fed. Credit Union (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 166 C .D. 2021, filed Feb. 15, 2022); Dohn v. Beck n’ Call (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 103 C.D. 2021, filed Sept. 20, 2021). 7

Thus, we affirm.

LORI A. DUMAS, Judge

7 We cite unreported opinions for their persuasive value

. See Pa.R.A.P 126(b)(1) ; 210 Pa. Co de § 69.414(a).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joanne Hardik, : Petitioner :

: v. : No. 385 C.D. 2022
: Community Health Systems (Workers’ : Compensation Appeal Board), : Respondent :

O R D E R AND NOW, this 17 th day of May , 202 3, the order of the Workers’ Compensation Appeal Board, entered March 23, 2022 , is AFFIRMED.

LORI A. DUMAS, Judge