IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paul Dick, :

Petitioner :

:

v. : No. 1408 C.D. 2021

:

Royal Flush Inc. (Workers’ :

Compensation Appeal Board), :

Respondent : Submitted: August 26, 2022

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE CEISLER FILED: November 18, 2022

Paul Dick (Claimant) petitions this Court for review of the November 19, 

2021 order of the Workers’ Compensation Appeal Board (Board), which affirmed 

the decision of a workers’ compensation judge (WCJ) granting Royal Flush, Inc.’s 

(Employer) petition to modify Claimant’s temporary total disability (TTD) benefits 

based on the results of an impairment rating evaluation (IRE) conducted pursuant to 

Section 306(a.3) of the Workers’ Compensation Act (Act).1 Claimant argues that 

the newly enacted IRE provisions in Section 306(a.3) of the Act do not apply to 

1 Act of June 2, 1915, P.L. 736, as amended, added by Act of October 24, 2018, P.L. 714,

No. 111 (Act 111), 77 P.S. § 511.3. Section 306(a.3)(1) of the Act requires that an employee who 

has received total disability compensation for 104 weeks submit to an IRE pursuant to the 

American Medical Association’s “Guides to the Evaluation of Permanent Impairment,” Sixth 

Edition (second printing April 2009) (AMA Guides), for the purpose of determining his degree of 

whole body impairment (WBI) due to the compensable injury. 77 P.S. § 511.3(1). If the IRE 

results in a WBI that is less than 35%, the employee shall receive partial disability benefits under 

Section 306(b) of the Act. 77 P.S. § 511.3(2). Section 306(b)(1) of the Act limits a claimant’s 

receipt of partial disability benefits to 500 weeks. 77 P.S. § 512(1). 
2

injuries sustained prior to its effective date, and that the IRE itself was invalid 

because he had not yet received 104 weeks of TTD benefits following Act 111’s 

passage. After review, we affirm.

I. Background

The factual and procedural history of this matter is not in dispute. Claimant 

sustained injuries to his left femur, tibia, fibula, and kneecap as a result of a June 4, 

2015 motor vehicle collision that occurred in the course of his employment. 

Certified Record (C.R.), Item No. 6, WCJ Decision, Finding of Fact No. 2. 

Employer recognized the injuries via a Notice of Temporary Compensation Payable 

(NTCP), which it issued on June 24, 2015. Id. 

On November 26, 2019, Employer submitted a modification petition based on 

the results of a September 30, 2019 IRE. C.R., Item No. 2. The examination, which 

was performed in accordance with the Sixth Edition of the AMA Guides, assigned 

Claimant a WBI rating of 26%. C.R., Item No. 15, Deposition of Thomas Freenock, 

M.D., Notes of Testimony at 11. In a May 19, 2021 decision, a WCJ granted the 

modification petition and changed Claimant’s benefit status from total to partial, 

effective September 30, 2019. C.R., Item No. 6, Order. The WCJ declined to 

address the issue of Act 111’s constitutionality, but noted that it was preserved for 

appeal. Id. 

Claimant appealed. C.R., Item No. 7. The Board amended the decision to 

address a small error in its text, but otherwise affirmed the WCJ.

2 C.R., Item No. 9, 

2 The WCJ’s decision noted that Employer had “met its burden of proof to establish 

entitlement to a modification of benefits from total to partial disability as of January 23, 2020 

based on the IRE performed by Dr. Thomas Freenock.” C.R., Item No. 6, Conclusion of Law No. 

2. The Board deemed the reference to that date a “typographical error,” and clarified that 

September 30, 2019, was the correct effective date for the modification of benefits. C.R., Item 

No. 9, Board Opinion at 5.
3

Board Opinion at 5-6. Regarding Claimant’s constitutional arguments, the Board 

noted that Act 111’s constitutionality has been upheld by this Court in Pierson v. 

Workers’ Compensation Appeal Board (Consol Pennsylvania Coal Company LLC), 

252 A.3d 1169 (Pa. Cmwlth. 2021), Rose Corporation v. Workers’ Compensation 

Appeal Board (Espada), 238 A.3d 551 (Pa. Cmwlth. 2020), and Pennsylvania AFLCIO v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth. 2019), aff’d, (Pa., No. 88 MAP 

2019, filed August 18, 2020). Id. at 3-4. This appeal followed.3

II. Issues 

Claimant argues that the decision granting Employer’s modification petition 

was in error because Act 111 is unconstitutional on its face and cannot be applied 

retroactively. Claimant further argues that the IRE itself was invalid, because he had 

not yet received 104 weeks of TTD benefits following the passage of Act 111. 

III. Discussion 

In Protz v. Workers’ Compensation Appeal Board (Derry Area School 

District), 161 A.3d 827, 830 (Pa. 2017), our Supreme Court struck down former 

Section 306(a.2)4 of the Act as an unconstitutional delegation of legislative authority, 

as it simply provided that an IRE would be conducted pursuant to “the most recent 

edition” of the AMA Guides. The General Assembly subsequently enacted Act 111, 

which, in relevant part, repealed the unconstitutional provision and replaced it with 

Section 306(a.3), 77 P.S. § 511.3. Rather than referring vaguely to a “most recent 

3 Our standard of review is limited to determining whether the WCJ’s findings of fact were 

supported by substantial evidence, whether an error of law was committed, or whether 

constitutional rights were violated. Lehigh Specialty Melting, Inc. v. Workers’ Comp. Appeal Bd.

(Bosco), 260 A.3d 1053, 1058 n.3 (Pa. Cmwlth. 2021). 

4 Added by the Act of June 24, 1996, P.L. 350, formerly 77 P.S. § 511.2, repealed by Act 

111. 
4

edition,” Section 306(a.3) specifies that an IRE shall be conducted in accordance 

with the Sixth Edition (second printing) of the AMA Guides. 77 P.S. §511.3(2). 

Claimant argues that Section 306(a.3) is unconstitutional on its face because 

Act 111 contains no retroactivity provision. In his view, it is therefore only 

applicable to claims originating on or after Act 111’s effective date of October 24, 

2018. Since Claimant was injured more than three years before Act 111’s passage, 

he maintains that his IRE is invalid. 

As the Board noted, this Court has already considered and rejected Claimant’s 

argument in Pierson, 252 A.3d at 1180. In Pierson, the claimant sustained a 

workplace injury on August 13, 2014. Id. at 1171. On December 21, 2018, his 

employer filed a petition to modify the claimant’s TTD benefits based on an IRE 

that had been performed two days prior. Id. at 1172. The claimant argued that Act 

111 could not “be constitutionally applied in a retroactive manner,” but only to

“claims that . . . originated on or after the date of the passage of the present IRE 

mechanism, October 24, 2018.” Id. at 1174. We disagreed, explaining that “the 

104-week and credit provisions of Act 111 were explicitly given retroactive effect 

by the clear language used by the General Assembly.”5 Id. at 1180. 

Claimant fails to distinguish the facts in this case from those in Pierson. 

Instead, he merely repeats almost verbatim the assertions made by the claimant in 

that case. In the absence of any basis for distinguishing the instant matter from 

Pierson, we reject Claimant’s argument as lacking in merit.

5 Section 3(2) of Act 111 states that, for the purposes of determining the total number of 

weeks of partial disability compensation payable under Section 306(a.3)(7) of the Act, an insurer 

shall be given credit for weeks of partial disability compensation paid prior to the Act’s effective 

date. Pierson, 252 A.3d at 1174 (citing 77 P.S. § 511.3, Historical and Statutory Notes). 
5

We turn now to Claimant’s argument that the September 30, 2019 IRE was 

invalid because it was performed prior to his receipt of 104 weeks of TTD benefits 

following Act 111’s effective date of October 24, 2018. This argument, too, has 

already been considered and rejected by this Court. In Rose Corporation, 238 A.3d 

at 561, we explained that Act 111 clearly permits employers to seek credit for weeks 

of TTD or partial compensation benefits received prior to Act 111’s enactment. 

Because the claimant in that case had already received 104 weeks of TTD benefits, 

the employer could seek a new IRE without waiting until 104 weeks of post-Act 111 

benefits had been paid. Id. at 563. Claimant, once again, has failed to distinguish 

his case from our holding in Rose Corporation.

For the foregoing reasons, we affirm the Board. 

____________________________

ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paul Dick, :

Petitioner :

:

v. : No. 1408 C.D. 2021

:

Royal Flush Inc. (Workers’ :

Compensation Appeal Board), :

Respondent :

O R D E R

AND NOW, this 18th day of November, 2022, the order of the Workers’ 

Compensation Appeal Board in the above matter, dated November 19, 2021, is 

hereby AFFIRMED. 

____________________________

ELLEN CEISLER, Judge