IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William McDonald, :
Petitioner :
:
v. : No. 39 C.D. 2022
: 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: November 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 compensation 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’ Compensation 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 Act 111 repealed Section 306(a.2)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), 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 Section 306(a.3), 77 P.S.
§ 511.3.
Board (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 Bednarz, 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 testimony of Paul K. Gross, M.D.,
a board-certified psychiatrist. Dr. Gross opined that Claimant had not reached MMI
and that Claimant was incapable of gainful employment, but Dr. Gross also
conceded that he was not certified to perform an IRE. Claimant also testified 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.
2
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. ISSUE4
Claimant contends that the retroactive application of Act 111 violates
the Remedies Clause of the Pennsylvania Constitution.5 See Claimant’s Br. at 5.
According 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 Landscaping 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 . . . [.]” PA. CONST. 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
For 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).
3
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 Guides (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 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
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 does 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).
4
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 analysis in Pierson is dispositive here. Claimant, like the claimant
in Pierson, sustained his 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. 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 id. at 1175. Therefore, based on our reasoning 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 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).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).
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William McDonald, :
Petitioner :
:
v. : No. 39 C.D. 2022
:
Pennsylvania Turnpike Commission :
and UPMC Benefit Management :
Services (Workers’ Compensation :
Appeal Board), :
Respondents :
ORDER
AND NOW, this 4th day of November, 2022, the order of the Workers’
Compensation Appeal Board, entered December 23, 2021, is AFFIRMED.
LORI A. DUMAS, Judge