IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Lynch, :
:
Petitioner :
:
v. : No. 1202 C.D. 2021
: Submitted: March 18, 2022
Commonwealth of Pennsylvania :
(Workers’ Compensation Appeal :
Board), :
:
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION BY JUDGE WOJCIK FILED: April 29, 2022
John Lynch (Claimant) petitions for review of an order of the Workers’
Compensation Appeal Board (Board) that affirmed a decision of a Workers’
Compensation Judge (WCJ) granting the Commonwealth of Pennsylvania’s
(Employer or Commonwealth) Modification Petition based on an Impairment Rating
Evaluation (IRE), and modifying Claimant’s disability benefits from total to partial
disability pursuant to Act 111 of 2018 (Act 111), which added Section 306(a.3) of
the Workers’ Compensation Act (WC Act).1 Claimant argues that his full salary
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. Act 111 repealed Section 306(a.2) of the Act, added by the
Act of June 24, 1996, P.L. 350, formerly 77 P.S. §511.2, and added Section 306(a.3) of the WC
Act. Section 306(a.3)(1) of the WC Act provides that a claimant who has received total disability
(Footnote continued on next page…)
benefits under Act 5342 do not constitute workers’ compensation benefits necessary
to trigger the IRE process under Section 306(a.3) of the WC Act. Upon review, we
affirm.
benefits for 104 weeks must submit to an IRE conducted pursuant to the American Medical
Association (AMA) “Guides to the Evaluation of Permanent Impairment,” Sixth Edition (second
printing April 2009) (Sixth Edition of the AMA Guides), which calculates the claimant’s degree
of impairment due to the compensable injury. 77 P.S. §511.3(1). If a claimant’s whole-body
impairment rating is less than 35%, the claimant shall receive partial disability benefits pursuant
to Section 306(a.3)(2) of the WC Act, 77 P.S. §511.3(2).
2
Act 534, sometimes referred to as Act 632, refers to Section 1 of the Act of December 8,
1959, P.L. 1718, as amended, 61 P.S. §951. The history of Act 534 reveals:
The Act, as originally enacted, covered only employees of state
penal and correctional institutions and was commonly referred to as
Act 632. In 1961, the Legislature amended Section 1 of Act 632 and
extended benefits to employees of state mental hospitals, youth
development centers and county boards of assistance, and
employees of the Department [of Public Welfare] who have been
assigned to or have volunteered to join the firefighting force of the
Department’s institutions. The Act, as amended in 1961, is
commonly known as Act 534. Act 534 was repealed by Section
11(d) of the Act of August 11, 2009, P.L. 147, effective October 13,
2009, to the extent that it covered employees of state correctional
institutions. Benefits of those employees are now provided in
Section 1101 of the Prisons and Parole Code, 61 Pa. C.S. §1101.
McWreath v. Department of Public Welfare, 26 A.3d 1251, 1254 n.2 (Pa. Cmwlth. 2011). Section
1 of Act 534 provides, in relevant part:
[A]ny employe of a State mental hospital or Youth Development
Center under the Department of Public Welfare, who is injured
during the course of his employment by an act of . . . any person
confined in such institution or by any person who has been
committed to such institution by any court of the Commonwealth of
Pennsylvania or by any provision of the [Mental Health Procedures
Act, Act of July 9, 1976, P.L. 814, as amended, 50 P.S. §§7101-7503
(“Mental Health Act”)] . . . shall be paid, by the Commonwealth of
Pennsylvania, his full salary, until the disability arising therefrom
(Footnote continued on next page…)
2
I. Background
The facts are not in dispute. Claimant sustained two injuries while
working for Employer in a state mental hospital run by the Department of Public
Welfare.3 On December 29, 2012, Claimant sustained the first work-related injury
(2012 Injury). Employer accepted liability for the 2012 Injury by issuing a Notice
of Compensation Payable (NCP), which initially described the injury as a left knee
and right shoulder strain and was later amended to include an exacerbation of
preexisting degenerative arthritis, which eventually required left knee replacement
surgery.
On September 9, 2014, Claimant sustained a second work-related
injury (2014 Injury). The parties entered into a March 1, 2016 Supplemental
no longer prevents his return as an employe of such department ...
or institution at a salary equal to that earned by him at the time of
his injury.
All medical and hospital expenses incurred in connection with any
such injury shall be paid by the Commonwealth of Pennsylvania
until the disability arising from such injury no longer prevents his
return as an employe of such department ... or institution at a salary
equal to that earned by him at the time of his injury.
During the time salary for such disability shall be paid by the
Commonwealth of Pennsylvania any workmen’s compensation
received or collected for such period shall be turned over to the
Commonwealth and paid into the General Fund, and if such
payment shall not be so made, the amount so due the
Commonwealth shall be deducted from any salary then or thereafter
becoming due and owing. . . . .
61 P.S. §951.
3
The “Department of Public Welfare” was redesignated as the “Department of Human
Services” in 2014. See Section 103 of Human Services Code, Act of June 13, 1967, P.L. 31, as
amended, added by the Act of September 24, 2014, P.L. 2458, 62 P.S. §103.
3
Agreement (2016 Supplemental Agreement), in which Employer agreed to reinstate
temporary total disability (TTD) benefits effective January 27, 2016, for the 2014
Injury, which was described as a right shoulder rotator cuff tear. The 2016
Supplemental Agreement noted that Act 534 benefits were being paid in lieu of TTD
benefits. WCJ Op., 4/16/21, Finding of Fact (F.F.) No. 4; Certified Record (C.R.)
at 19-20.4
On August 12, 2020, Employer filed two Modification Petitions under
Act 111 -- one regarding the 2012 Injury and the other regarding the 2014 Injury --
seeking to change Claimant’s disability status from total to partial based on the
results of an IRE performed on June 2, 2020, which yielded a whole-body
impairment rating of less than 35%. Claimant did not file an answer.
By decision and order circulated on April 16, 2021, the WCJ denied the
Modification Petition arising out of the 2012 Injury and granted the Modification
Petition arising out of the 2014 Injury, which is the subject of this appeal. With
regard to the 2014 Injury, the WCJ found that Claimant had received 104 weeks of
TTD for the 2014 Injury prior to the June 2, 2020 IRE. F.F. No. 12. The WCJ
explained:
While the Claimant does receive an amount equal to his
full salary under Act 534, the Insurer[5] pays workers’
4
Because the Certified Record was filed electronically and was not paginated, the page
numbers referenced in this opinion reflect electronic pagination.
5
This Court takes judicial notice that Employer is designated as a self-insured employer
for workers’ compensation purposes on the official website of the Pennsylvania Department of
Labor and Industry. See Workers’ Compensation Insurance, Self-Insured Employers,
https://www.dli.pa.gov/Businesses/Compensation/WC/insurance/Pages/Self-Insured-Employers-
A-C.aspx (last visited April 28, 2022). See Hill v. Department of Corrections, 64 A.3d 1159, 1165
(Footnote continued on next page…)
4
compensation [TTD] benefits to [] Employer, which then
adds sufficient amounts to the workers’ compensation
benefits to bring the sum up to the level of the Act 534
benefits, and the total is then paid to [] Claimant.
Accordingly, Claimant receives workers’ compensation
[TTD] benefits plus additional amounts added to equal his
Act 534 rate.
F.F. No. 13; C.R. at 21. The WCJ found that Act 111 permits a credit for TTD
benefits paid prior to the effective date of Act 111 for purposes of calculating the
104 weeks. F.F. No. 14; C.R. at 21. Based on the results of the IRE, the WCJ
determined that Employer established entitlement to a modification of benefits as set
forth in the 2016 Supplemental Agreement from total to partial disability status as
of June 2, 2020, the date of the IRE.6
Claimant appealed to the Board. Claimant argued, in relevant part, that
the WCJ erred in modifying his benefit status because he had not received 104 weeks
n.3 (Pa. Cmwlth. 2013) (this Court may take judicial notice of policies and handbooks that appear
on the Department of Corrections’ official website).
The “Insurer” referred to by the WCJ is Inservco Insurance Services, Inc. (Insurer), which
provides third-party administration (also known as “TPA”) services to self-insured employers, like
Employer. The Insurer utilizes funds that belong to Employer to pay benefits. See Commonwealth
of Pennsylvania v. Workers’ Compensation Appeal Board (Piree), 182 A.3d 1082, 1084 (Pa.
Cmwlth. 2018).
6
Section 413(a) of the WC Act provides:
A [WCJ] . . . may, at any time, review and modify or set aside a
[NCP] and an original or supplemental agreement or upon petition
filed by either party with the department, or in the course of the
proceedings under any petition pending before such [WCJ], if it be
proved that such [NCP] or agreement was in any material respect
incorrect.
77 P.S. §§771-772 (emphasis added).
5
of TTD as of the time of the IRE because he was receiving wage continuation
benefits under Act 534, not TTD benefits under the WC Act.
The Board rejected Claimant’s argument. The Board opined that Act
534 benefits are intended to supplement, not replace, workers’ compensation and
occupational disease benefits. Act 534 does not prevent an employer from initiating
proceedings under Act 111. The Board ultimately concluded that Act 534 benefits
count towards the 104 weeks of total disability benefits under Act 111. Because
Claimant had received over 104 weeks of benefits as of June 2, 2020, Claimant met
the prerequisites for an IRE. Based on the IRE results, which yielded a whole-body
impairment rating of less than 35%, Employer was entitled to a modification of
benefits from total to partial. Thus, the Board affirmed. Claimant’s appeal to this
Court now follows.7
II. Issue
Claimant argues that the WCJ and Board committed clear errors of law
by determining that he was subject to an IRE under Act 111 and modifying his
benefits based on the results. Claimant maintains that he was not subject to an IRE
on June 2, 2020, because he had not yet received 104 weeks of total disability
benefits under Section 306(a.3) of the WC Act, 77 P.S. §511.3. Section 306(a.3) of
the WC Act clearly provides that an employee must receive 104 weeks of total
disability benefits under Section 306(a) of the Act, 77 P.S. §511, before those
benefits may be modified based upon an IRE. Section 306(a) specifically and
7
Our 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. Department of Transportation v. Workers’ Compensation Appeal Board
(Clippinger), 38 A.3d 1037, 1042 n.3 (Pa. Cmwlth. 2011). As to questions of law, our standard of
review is de novo and our scope of review is plenary. Pitt-Ohio Express v. Workers’ Compensation
Appeal Board (Wolff), 912 A.2d 206, 207 (Pa. 2006).
6
exclusively relates to workers’ compensation benefits, not Act 534 benefits. Under
Act 534, an employee receives his full salary, not workers’ compensation benefits.
Nothing in Act 534 allows for the modification of an employee’s benefits based on
an IRE. Because Claimant received only Act 534 benefits and had not received any
workers’ compensation benefits for his 2014 Injury, let alone the 104 weeks
necessary, Claimant was not subject to an IRE under Act 111. On this basis,
Claimant maintains that the modification of his benefits must be reversed.
III. Discussion
Section 306(a.3) of the WC Act provides for IREs to evaluate the
degree of permanent impairment caused by a work injury and for the change of a
claimant’s disability status from total disability to partial disability based on the
degree of impairment determined by the IRE. 77 P.S. §511.3. Section 306(a.3)(1)
of the WC Act provides, in relevant part:
When an employe has received total disability
compensation pursuant to [Section 306(a) of the WC Act,
77 P.S. §511,] for a period of one hundred and four weeks,
unless otherwise agreed to, the employe shall be required
to submit to a medical examination which shall be
requested by the insurer within sixty days upon the
expiration of the one hundred and four weeks to determine
the degree of impairment due to the compensable injury,
if any. . . .
77 P.S. §511.3(1) (emphasis added). If a valid IRE results in an impairment rating
of less than 35%, the claimant is entitled only to partial workers’ compensation
disability benefits. Section 306(a.3)(2) of the WC Act, 77 P.S. §511.3(2). Under
Section 306(b)(1) of the WC Act, a claimant’s receipt of partial disability benefits is
limited to 500 weeks. 77 P.S. §512(b)(1).
Section 306(a) of the WC Act provides:
7
The following schedule of compensation is hereby
established:
(1) For total disability, sixty-six and two-thirds per centum
of the wages of the injured employe as defined in section
309 beginning after the seventh day of total disability, and
payable for the duration of total disability, but the
compensation shall not be more than the maximum
compensation payable as defined in section 105.2.
Nothing in this clause shall require payment of
compensation after disability shall cease. If the benefit so
calculated is less than fifty per centum of the Statewide
average weekly wage, then the benefit payable shall be the
lower of fifty per centum of the Statewide average weekly
wage or ninety per centum of the worker’s average weekly
wage.
(2) Nothing in this act shall require payment of total
disability compensation benefits under this clause for any
period during which the employe is employed or receiving
wages.
77 P.S. §511.
The question before us is whether Claimant’s receipt of full salary
benefits under Act 534 constitutes receipt of “total disability compensation” under
Section 306(a) of the WC Act for purposes of triggering Act 111’s IRE mechanism.
We turn to Act 534.
Act 534 was passed by the General Assembly to assure that state
workers in positions at institutions considered more dangerous than normal would
receive full salary during periods of work-related disability. Section 1 of Act 534,
61 P.S. §951. The applicable positions are employees of “a State penal or
correctional institution under the Bureau of Correction of the Department of
8
Justice[8] and . . . a State mental hospital or Youth Development Center under the
Department of Public Welfare.” Id. Pursuant to Act 534, the Commonwealth
employer pays a “full salary” to any employee “injured during the course of his
employment” by a person confined in one of the above-mentioned facilities “until
the disability arising therefrom no longer prevents his return as an employee of such
department, board or institution at a salary equal to that earned by him at the time of
his injury.” Id.
Significantly, Act 534 benefits are “intended to supplement, not
replace, workers’ compensation and occupational disease benefits.” McWreath v.
Department of Public Welfare, 26 A.3d 1251, 1256 (Pa. Cmwlth. 2011). “‘[A]n
injured worker may receive workers’ compensation benefits simultaneously with
Act 534 benefits.’” YDC New Castle-PA DPW v. Workers’ Compensation Appeal
Board (Hedland), 950 A.2d 1107, 1110 n.3 (Pa. Cmwlth. 2008) (quoting Polk
Center/Department of Public Welfare v. Workmen’s Compensation Appeal Board
(Pochran), 682 A.2d 889, 892 (Pa. Cmwlth. 1996)). “If that occurs, however, the
Commonwealth is subrogated to the claimant’s right for any workers’ compensation
payments made and is entitled to deduct any payments made directly to the claimant
under the [WC Act] from his future salary or benefits paid under Act 534.” Id.
(citing Polk Center, 682 A.2d at 892); accord 61 P.S. §951. As clearly expressed in
Section 1 of Act 534:
During the time salary for such disability shall be paid by
the Commonwealth of Pennsylvania any workmen’s
compensation received or collected for such period shall
8
The powers and duties of the Department of Justice contained in this section have been
transferred to the Office of General Counsel, pursuant to Section 502 of the Commonwealth
Attorneys Act, Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §732-502.
9
be turned over to the Commonwealth and paid into the
General Fund, and if such payment shall not be so made,
the amount so due the Commonwealth shall be deducted
from any salary then or thereafter becoming due and
owing.
61 P.S. §951 (emphasis added).
Act 534 is similar in “purpose and construction” to the act commonly
known as the Heart and Lung Act (HLA).9 Polk Center, 682 A.2d at 894. Under
both acts, the purpose of providing for full salary is to assure those undertaking
dangerous employment in certain institutions will continue to receive full income if
they are injured while performing their duties. McWreath, 26 A.3d at 1255. Neither
act relieves the employer from its continuing obligations to pay workers’
compensation benefits for the work injury. City of Erie v. Workers’ Compensation
Appeal Board (Annunziata), 838 A.2d 598, 604 (Pa. 2003); McWreath, 26 A.3d at
1256. Indeed, an employer’s obligation to pay HLA benefits, or Act 534 benefits,
“is concurrent with, not in lieu of, its obligation pursuant to the workers’
compensation scheme.” Annunziata, 838 A.2d at 604 (internal quotation and citation
omitted) (pertaining to HLA benefits); accord YDC New Castle, 950 A.2d at 1110
n.3 (pertaining to Act 534 benefits). Likewise, nothing in the WC Act eliminates
the responsibility of an employer to pay workers’ compensation to an injured
employee who is receiving HLA benefits, or Act 534 benefits. See Annunziata, 838
A.2d at 604. Both acts require employees to turn over to their employers any
workers’ compensation benefits received. Section 1(a) of the HLA, 53 P.S. §637(a);
Section 1 of Act 534, 61 P.S. §951; Polk Center, 682 A.2d at 894. Therefore,
9
Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§637-638. The HLA provides police
officers and other public safety employees, who are temporarily unable to perform their duties
because of a work injury, their full salary. Section 1 of the HLA, 53 P.S. §637; Stermel v. Workers’
Compensation Appeal Board, 103 A.3d 876, 877 (Pa. Cmwlth. 2014).
10
caselaw concerning HLA benefits is applicable to the interpretation of Act 534. Polk
Center, 682 A.2d at 894; Mihok v. Department of Public Welfare, 580 A.2d 905, 907
(Pa. Cmwlth. 1990). For our purposes here, cases in which the public employer was
self-insured for workers’ compensation purposes are particularly instructive.10
Under the HLA, a self-insured employer paying HLA benefits for a
work injury may fulfill its obligation to pay workers’ compensation benefits by
issuing an NCP for the injury without making additional benefit payments to the
employee. Annunziata, 838 A.2d at 604-06 & n.7; City of Philadelphia v. Workers’
Compensation Appeal Board (Ford–Tilghman), 996 A.2d 569, 574 (Pa. Cmwlth.
2010). As our Supreme Court explained:
[I]n circumstances where the employer is self-insured, it
would be an exercise in futility to mandate that the
employer pay [workers’ compensation] benefits to the
claimant and then require the claimant to turn around and
remit them back to the employer. To avoid this absurdity,
in such a situation, it would be proper for the employer to
issue a revised NCP and refuse to pay [workers’
compensation] benefits.
Annunziata, 838 A.2d at 605 n.7. Consequently, when a self-insured employer is
required to pay HLA benefits in addition to workers’ compensation benefits, “two-
thirds of the amount paid” in HLA benefits “automatically represents workers’
compensation benefits.” Bureau of Workers’ Compensation v. Workers’
Compensation Appeal Board (Excalibur Insurance Management Service), 32 A.3d
291, 294-95 (Pa. Cmwlth. 2011); accord Wisniewski v. Workmen’s Compensation
Appeal Board (City of Pittsburgh), 621 A.2d 1111, 1113 (Pa. Cmwlth. 1993). The
employer may assert rights under the WC Act on the ground that the HLA payments
10
With Act 534 benefits, the Commonwealth employer is self-insured, whereas under the
HLA, many municipal employers are insured with private insurance carriers.
11
encompass payments of workers’ compensation disability benefits. See Excalibur
Insurance Management Service, 32 A.3d at 294 (self-insured employer entitled to
seek reimbursement from the Supersedeas Fund under the WC Act11); Wisniewski,
621 A.2d at 1113 (self-insured employer that issued NCP but only paid HLA benefits
could seek termination of benefits under WC Act).
Excalibur Insurance Management Service and Wisniewski are
controlling here. See Nelson v. Workers’ Compensation Appeal Board
(Commonwealth of Pennsylvania) (Pa. Cmwlth., No. 692 C.D. 2015, filed December
10, 2015)12 (comparing Act 534 benefits to HLA benefits and concluding that a
claimant’s receipt of Act 534 benefits constituted the receipt of TTD under a prior
version of the WC Act for modification purposes). Similar to those cases, Employer
here is self-insured, and, by issuing the 2016 Supplemental Agreement, Employer
accepted Claimant’s 2014 Injury and agreed to reinstate Claimant’s TTD benefits
effective January 27, 2016, for which it paid Claimant Act 534 benefits. F.F. No. 4.
The WCJ found, and Claimant does not dispute, that he received Act 534 benefits
for more than 104 weeks prior to the June 2, 2020 IRE. F.F. No. 12. As with HLA
benefits, two-thirds of the Act 534 payments that Claimant received represents total
disability benefits under the WC Act as a matter of law. See Excalibur Insurance
Management Service; Wisniewski. Thus, Claimant “received total disability
compensation pursuant to [the WC Act] for a period of one hundred four weeks,”
thereby triggering the IRE process under Act 111. 77 P.S. §511.3(1). Because
Employer made payments as mandated by the WC Act, Employer is afforded all
11
See Section 443(a) of the WC Act, added by the Act of February 8, 1972, P.L. 25,
77 P.S. §999(a).
12
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, we may cite an
unreported opinion of this Court for its persuasive value. 210 Pa. Code §69.414(a).
12
rights thereunder, including the right to seek modification of Claimant’s workers’
compensation benefits under Section 306(a.3) of the Act. To conclude otherwise
and deny the Employer the ability to seek a modification of benefits under Act 111
simply because Claimant was entitled to additional benefits under a separate
statutory provision would be contrary to the law.
IV. Conclusion
Accordingly, we affirm the Board’s order.
MICHAEL H. WOJCIK, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Lynch, :
:
Petitioner :
:
v. : No. 1202 C.D. 2021
:
Commonwealth of Pennsylvania :
(Workers’ Compensation Appeal :
Board), :
:
Respondent :
ORDER
AND NOW, this 29th day of April, 2022, the order of the Workers’
Compensation Appeal Board, dated October 29, 2021, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge