IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jennifer Leissner, :
Petitioner :
:
v. : No. 1451 C.D. 2021
: Submitted: February 10, 2023
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: May 17, 2023
Jennifer Leissner (Claimant) has petitioned this Court to review the
adjudication of the Workers’ Compensation Appeal Board (Board), affirming the
decision of the Workers’ Compensation Judge (WCJ). The WCJ granted a petition
to modify disability benefits filed by the City of Philadelphia (Employer). Claimant
challenges as unconstitutional the retroactive application of Act 111,1 which altered
the criteria of the impairment rating evaluation (IRE) process. Upon review, this
case is controlled by Pierson v. Workers’ Compensation Appeal Board (Consol
Pennsylvania 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.
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 Act 111 repealed Section 306(a.2)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.
I. BACKGROUND2
In January 2013, Claimant sustained a work-related injury and was
awarded disability benefits. In September 2020, she underwent an IRE performed
by Arnold T. Berman, M.D. In addition to performing a physical examination, Dr.
Berman reviewed Claimant’s medical history and considered her subjective
complaints. Ultimately, Dr. Berman assigned Claimant a 6% impairment rating
pursuant to the Sixth Edition AMA Guides to the Evaluation of Permanent
Impairment (Guides) (second printing April 2009). In July 2020, more than five
years after Claimant had received 104 weeks of total disability benefits, Employer
filed a modification petition based on the IRE results.
Upon reviewing the evidence, the WCJ granted Employer’s
modification petition, which modified Claimant’s disability benefits from total to
partial as of the IRE date. The WCJ concluded that this Court had already deemed
Act 111 to be constitutional and that the use of the Sixth Edition AMA Guides did
not violate the non-delegation clause. Claimant appealed to the Board, which
affirmed based on our holding in Pierson. Claimant then timely petitioned this Court
for review.3
II. ISSUE
Claimant asserts that Act 111 is unconstitutional because it
retroactively applies to prior injuries and credits employers for benefits paid before
its enactment. See generally Claimant’s Br. at 11-28. She maintains that because
2
Unless stated otherwise, we adopt the factual background for this case from the WCJ’s
Decision, which is supported by substantial evidence of record. See WCJ’s Dec., 4/27/2021.
3
Our scope of review on appeal is limited to determining whether constitutional rights
were violated, whether an error of law was committed, and whether necessary findings of fact were
supported by substantial evidence. City of Phila. v. Workers’ Comp. Appeal Bd (Thompson), 264
A.3d 408, 411 n.5 (Pa. Cmwlth. 2021).
2
Employer accepted her injury prior to Act 111’s enactment, she retains vested rights
in her disability benefits. See id. at 19, 25-26, 28.4
III. DISCUSSION
In 2018, the Pennsylvania General Assembly enacted Act 111, which
modified the process to assess a claimant’s ongoing disability status in the context
of workers’ compensation claims. Pursuant to Section 306(a.3) of the Act, a
claimant’s disability status may be modified based on the results of a physician’s
IRE, which an employer can request a claimant undergo upon receipt of 104 weeks
of total disability compensation.5 See 77 P.S. § 511.3. Claimants with impairment
ratings of 35% or higher maintain total disability status, whereas ratings below the
statutory threshold result in a change of disability status from total to partial.6 Id.
In Pierson, we assessed the rights that claimants are afforded
concerning disability benefits. We emphasized that while claimants are entitled to
some rights until they are found ineligible for disability benefits, “there are
reasonable expectations under the Act that benefits may change.” Pierson, 252 A.3d
at 1179. In concluding that Act 111 is constitutional, the Pierson Court also held
4
In response, Employer rejects Claimant’s arguments and directs this Court to settled
precedent. See Employer’s Br. at 9-12. Employer also argues that the WCJ’s findings are
supported by substantial evidence. See id. at 12-14. However, because Claimant does not raise
this challenge, we need not resolve it here.
5
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. 77 P.S. § 511.3. 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.
6
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).
3
that a claimant does not “automatically lose anything by the enactment of Act 111.”
Id. See DiPaolo v. UPMC Magee Women’s Hosp. (Workers’ Comp. Appeal Bd.),
278 A.3d 430, 435 (Pa. Cmwlth. 2022) (“there is no right to ongoing [temporary
total disability] status”), appeal denied, 290 A.3d 237 (Pa. 2023). Further, the
Pierson Court concluded that the legislature clearly expressed its intent to apply the
credit provisions retroactively through the plain language of the statute. See Pierson,
252 A.3d at 1180; see also Act 111, § 3(1) (“[A]n insurer shall be given credit for
weeks of total disability compensation paid prior to the effective date of this
paragraph.”), § 3(2) (“[A]n insurer shall be given credit for weeks of partial disability
compensation paid prior to the effective date of this paragraph.”).
Pierson is dispositive in the instant matter. Like the claimant in
Pierson, Claimant sustained a work-related injury prior to the enactment of Act 111.
See Pierson, 252 A.3d at 1171. Similar to the claimant’s arguments raised in Pierson,
Claimant avers that Act 111 is a substantive amendment, challenges the retroactivity
of the credit provisions, and asserts a vested right to disability benefits. See id. at
1175. Identical to the Pierson employer, Employer sought modification of
Claimant’s benefits based on an IRE that was obtained after Act 111’s enactment.
See id. at 1172. Therefore, based on our reasoning in Pierson, we reject Claimant’s
arguments. Accord DiPaolo, Hender-Moody v. Am. Heritage Fed. Credit Union
(Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 166 C.D. 2021, filed February 15,
2022) (unreported) appeal denied, 284 A.3d 119 (Pa. 2022); Dohn v. Beck N’Call
(Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 103 C.D. 2021, filed September
20, 2021) (unreported), appeal denied, 275 A.3d 79 (Pa. 2022); McDonald v. Pa.
4
Turnpike Comm’n (Workers’ Comp. Appeal Bd.), Pa. Cmwlth., No. 39 C.D. 2022,
filed November 4, 2022).7, 8
Thus, we affirm.
LORI A. DUMAS, Judge
7
We cite unreported opinions for their persuasive value. See Pa.R.A.P 126(b)(1); 210 Pa.
Code § 69.414(a).
8
Claimant baldly asserts that this Court should reconsider Pierson. See Claimant’s Br. at
34. However, “we are bound to follow the decisions of our Court unless overruled by the Supreme
Court or where other compelling reasons can be demonstrated.” Crocker v. Workers’ Comp.
Appeal Bd. (Georgia Pacific LLC), 225 A.3d 1201, 1210 (Pa. Cmwlth. 2020) (en banc) (citation
omitted). Claimant does not raise new arguments that would prompt us to deviate from Pierson,
and we discern no compelling reason to disturb our prior holding. Thus, we decline to reconsider
Pierson. See id.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jennifer Leissner, :
Petitioner :
:
v. : No. 1451 C.D. 2021
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 17th day of May, 2023, the order of the Workers’
Compensation Appeal Board, entered December 2, 2021, is AFFIRMED.
LORI A. DUMAS, Judge