IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William McDonald, : Petitioner :

:

v. : No. 39 C.D. 202 2

: Submitted: July 1, 2022 Pennsylvania Turnpike Commission : and UPMC Benefit Management : Services (Workers ’ Compensation : Appeal Board), : Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE DUMAS FILED: Novembe r 4, 2022

William McDonald (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 compe nsation benefits filed by the Pennsylvania Turnpike

Commission and its third

- party administrator, UPMC Benefit Management Services
(collectively, Employer)

. 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).
Upon review, this case is controlled by Pierson v. Workers’ Comp ensation Appeal

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 Act 111 repealed Section 306(a.2)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), A ct 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 Section 306(a.3), 77 P.S. § 511.3.2

B oard (Consol Pa. 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 affirm.

I. BACKGROUND

On December 15, 2011, Claimant sustained a work

- related injury
described as post

- traumatic stress disorder. 2 Claimant received temporary total
disability payments at the rate of $435.96 per week, as well as all reasonable and
necessary medical expenses.

On October 11, 2019, Employer filed a modification petition alleging

that Claimant had a whole

- body impairment rating of 20 % and that he had reached
maximum medical improvement (MMI) . The WCJ held hearings, at which
Employer presented testimony from Lucian B ednarz, M.D., a board

- certified
physiatrist. Dr. Bednarz performed an IRE of Claimant under the Sixth Edition of

the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (AMA Guides)

.

In response, Claimant presented the testimon y of Paul K. Gross, M.D.,

a boar d

- certified psychiatrist . Dr. Gross opined that Claimant had not reached MMI

and that Claimant was in capable of gainful employment, but Dr. Gross also
conceded that he was not certified to perform an IRE . Claimant also tes tified about
his injury, the symptoms he continues to experience, and the various treatments he

has received.

Upon considering this evidence, the WCJ credited the testimony of Dr.

Bednarz over that of Dr. Gross . The WCJ concluded that Employer established that

2 Unless stated otherwise, we adopt the factual background for this case from the Decision of the WCJ, entered June 17, 2021

, which is supported by substantial evidence of record. See WCJ Decision, 6/17/21 , at 3

- 16

.3

Claimant had reached MMI and had a whole

- body impairment of 20 % and,
therefore, granted Employer’s petition, modifying Claimant’s benefits to partial
disability status effective October 11, 2019

. 3

Claimant appealed to the Board, which affirmed. See Bd. Op. & Order,

12/23 /21. Claimant then timely petitioned this Court for review.

II. ISSUE 4

Claimant contends that the retroactive application of Act 111 violates
the Remedies Clause of the Pennsylvania Constitution. 5 See Claimant’s Br. at 5.

Acco rding to Claimant, Act 111 brought substantive changes to the law governing

IREs , and its negative impact on Claimant’s vested right to unimpaired, total
disability benefits is unconstitutional

. See id. at 8. Claimant further suggests that

the WCJ should have rejected the IRE because Claimant has not received 104 weeks

of total disability benefits since Act 111 came into effect. 6

3 We note that Employer also filed a modification petition based on a labor market survey. The WCJ denied that petition, and it is not at issue in this appeal.

4 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 substantial evidence. Bryn Mawr L andscaping Co. v. Workers’ Comp. Appeal Bd. (Cruz

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

5 The Remedies Clause provides that “ every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law . . . [.]” P A

. C ONST . art. I, §11 . The Remedies Clause prohibits the enactment of retroactive legislation if its application would extinguish a “vested right.” Konidaris v. Portnoff Law Assocs

. , Ltd ., 953 A.2d 1231, 1242 (Pa. 2008)

. 6 F or its part, Employer rejects these claims, asserting that Act 111 is constitutional and applies retroactively. See Employer’s Br. at 10 (citing in support

, inter alia

, Pierson ).4 III. ANALYSIS
In 2018, the General Assembly passed Act 111 , which authorizes the

use of an IRE to determine a claimant’s disability status

. 7 Among its provisions,

Section 306(a.3) requires 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 Gui des (second printing April 2009) as the basis for a qualified
physician’s IRE, and it set the threshold required for a total disability status at 35 %

whole

- body impairment. Id. 8 If a claimant’s impairment rating is less than 35%,
the claimant shall be considered partially disabled. 9

Recently, in 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 claimant ’ s disability status from total t o 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

7 Prior law governing the IRE process was deemed an unconstitutional delegation of legislative authority. Protz v. Workers’ Comp

. Appeal Bd. (Derry Area Sch

. Dist

. )

, 161 A.3d 827

, 841 (Pa. 2017 ).

8 In Pennsylvania AFL

- CIO v. Commonwealth , 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.
9 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

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 disability 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 analys i s in Pierson is disposi tive here. Claimant, like the claimant

in Pierson , sustained his work

- related injury before the passage of Act 111. See

Pierson , 252 A.3d at 117 1

. Employer, like the employer in Pierson , sought to
modify Claimant’s benefits based on an IRE obtained after th e Act’s effective date.

See i d. at 1172. Claimant , like the claimant in Pierson , challenges the retroactivity
of the employer credit provision of Act 111 and asserts a vested right in his disability

benefits. See i d. at 1175. Therefore, based on our re asoning in Pierson , we reject
Claimant’s arguments. Accord Wescoe v. Fedchem, LLC (Workers’ Comp

. Appeal
Bd.) (Pa. Cmwlth.

, No. 1010 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 Ma r. 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). 10

Thus, we affirm.

LORI A. DUMAS, Judge

Judge Fizzano Cannon did not participate in the decision in this case.

10 We cite Wescoe

, Sochko

, Hender

- Moody , and Dohn for their persuasive value pursuant
to Rule 126(b)(1) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 126(b)(1), and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William McDonald, : Petitioner :

:

v. : No. 39 C.D. 202 2

: Pennsylvania Turnpike Commission : and UPMC Benefit Management : Services (Workers ’ Compensation : Appeal Board), : Respondents :

O R D E R

AND NOW, this 4 th day of November , 2022, the order of the Workers’
Compensation Appeal Board, entered December 23, 2021, is AFFIRMED.

LORI A. DUMAS, Judge