IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donald Stevenson, :
Petitioner :
:
v. : No. 202 C.D. 2022
: SUBMITTED: September 9, 2022
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: December 12, 2022
Claimant Donald Stevenson petitions for review from the order of the
Workers’ Compensation Appeal Board affirming the decision of the workers’
compensation judge (WCJ) granting Employer City of Philadelphia’s petition to
modify benefits from temporary total disability to temporary partial disability
effective July 13, 2020, based upon an uncontradicted impairment rating evaluation
(IRE). We affirm.
Claimant was injured in November 2011 in the course and scope of his
employment for Employer as a corrections officer. Claimant was paid benefits
pursuant to a notice of temporary compensation payable and various amended
notices of compensation payable, the last of which was issued on August 3, 2018.
In March 2020, pursuant to the applicable statute and regulations, Employer
requested the designation of a physician to perform an IRE. A physician was so
designated, who examined Claimant on July 13, 2020, and prepared an IRE report
finding that Claimant had a 20% impairment rating. Employer filed a petition to
modify compensation benefits based upon the 20% impairment rating assigned. In
July 2021, the WCJ issued a decision and order granting the petition to modify
benefits from temporary total disability to temporary partial disability effective July
13, 2020. Claimant did not dispute the IRE determination or submit evidence in
opposition to the petition. Rather, he took the position that Act 111 of 2018,1 which
replaced the former IRE provision in the Workers’ Compensation Act2 subsequent
to action by our Supreme Court striking the earlier provision in its entirety,3 was
unconstitutional and the IRE premature since he had not received 104 weeks of
benefits subsequent to the enactment of Act 111.
The WCJ acknowledged that Act 111 provides that its provisions apply
to injuries that occurred prior to its enactment and determined that Act 111 provides
that an employee who has received 104 weeks of compensation is required to submit
to an IRE. The WCJ further determined that all payments prior to October 24, 2018,
the effective date of Act 111, must be included in the 104-week calculation. As the
WCJ found that Claimant had received at least 104 weeks of temporary total
disability and that the uncontradicted opinions of the IRE physician were credible,
she concluded that Employer had met its burden of proving that the IRE evaluation
resulted in an impairment rating of 20% (below the statutory 35% required for
1
Act of October 24, 2018, P.L. 714, No. 111 (Act 111), 77 P.S. § 511.3.
2
Act of June 2, 1915, P.L. 736, as amended, added by Section 4 of the Act of June 24, 1996,
P.L. 350, formerly 77 P.S. § 511.2, repealed and replaced by Act 111.
3
See Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827 (Pa. 2017)
(Protz II).
2
continued receipt of temporary total disability) and ordered that the petition to
modify to temporary partial disability be granted.
Claimant’s appeal to the Board asserted that the retroactive effect and
application of Act 111 violated the federal and state constitutions. The Board
affirmed and Claimant filed his instant petition for review, in which he raises one
issue, whether Act 111 is unconstitutional.
Claimant argues that retrospective application of Act 111 violates
vested rights and due process rights guaranteed by the state and federal constitutions
and the remedies clause4 of the state constitution. Claimant further argues that by
declaring the prior version of the IRE provision unconstitutional, the Supreme Court
put injured workers back under the previous system that rated disability only by loss
of earning power and not the IRE process. Claimant contends that Act 111 is
unconstitutional because it changed how disability benefits are determined and
limited recovery for workers to no more than 500 weeks of future benefits. Thus,
he argues that it is a substantive, and not procedural, amendment to the Workers’
Compensation Act that may apply only prospectively, i.e., not counting weeks of
temporary total benefits prior to Act 111’s enactment.
As Claimant acknowledges, we have previously squarely addressed
whether there is a vested right in continued receipt of temporary total disability that
is violated by the IRE process and concluded that there is not. Pierson
v. Workers’ Comp. Appeal Bd. (Consol Pa. Coal Co. LLC), 252 A.3d 1169 (Pa.
Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021). Following Pierson, this Court
4
The remedies clause of the Pennsylvania Constitution is found at article I, section 11. It
provides in relevant part as follows: “[a]ll courts shall be open; and every man for an injury done
him in his . . . person . . . shall have remedy by due course of law, and right and justice administered
without sale, denial or delay.” Pa. Const. art. I, § 11.
3
has consistently held that Act 111 does not abrogate or substantially impair a
claimant’s vested rights in workers’ compensation benefits because there is no right
to ongoing temporary total disability status. DiPaolo v. UPMC Magee Women’s
Hosp. (Workers’ Comp. Appeal Bd.), 278 A.3d 430, 434-39 (Pa. Cmwlth. 2022)
(citing cases). We are offered no reason to revisit these binding precedents and
decline to do so.
Claimant cites Rose Corporation v. Workers’ Compensation
Appeal Board (Espada), 238 A.3d 551 (Pa. Cmwlth. 2020) (en banc), for its
holdings that Section 3 of Act 111 did not evince a clear intention to apply Act 111
retroactively in its entirety and that Act 111 constituted a substantive change in the
law, thus rendering its retroactive application unconstitutional. However, this case
is readily distinguishable. Both holdings pertained to the question then at hand, an
employer’s argument that an IRE performed prior to the effective date of Act 111—
under the unconstitutional former Section 306(a.2)—could be used to change a
claimant’s status to partial disability; it is this question we answered in the
negative. Id. Further, the Court stated explicitly that if the employer pursued a new
IRE under Act 111 following the procedures of Section 306(a.3), it “would be
entitled to credit for the weeks of partial disability benefits paid” prior to the
effective date. Id. at 563. In this case, the IRE of Claimant was performed after the
effective date of Act 111.
In light of the foregoing, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donald Stevenson, :
Petitioner :
:
v. : No. 202 C.D. 2022
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 12th day of December, 2022, the Order of the Workers’
Compensation Appeal Board is AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita