DiPaolo v. UPMC Magee Women's Hosp.

• Decision Date: 13 June 2022
• Docket Number: 878 C.D. 2021,No. 878 C.D. 2021
• Citation: 278 A.3d 430
• Parties: Angela DIPAOLO, Petitioner v. UPMC MAGEE WOMEN'S HOSPITAL (Workers’ Compensation Appeal Board), Respondent
• Court: Pennsylvania Commonwealth Court

278 A.3d 430

Angela DIPAOLO, Petitioner

v.UPMC MAGEE WOMEN'S HOSPITAL (Workers’ Compensation Appeal Board), Respondent

No. 878 C.D. 2021

Commonwealth Court of Pennsylvania.

Argued May 16, 2022

Decided June 13, 2022

Lawrence R. Chaban, Pittsburgh, for Petitioner.

Andrew M. Riley, Pittsburgh, for Respondent.

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE STACY WALLACE, Judge

OPINION BY JUDGE FIZZANO CANNON

Petitioner Angela DiPaolo (Claimant) petitions for review from the July 1, 2021, decision and order of the Workers’ Compensation Appeal Board (Board), which affirmed the August 18, 2020, decision and order of the Workers’ Compensation Judge (WCJ). The WCJ granted the modification petition filed by Respondent UPMC Magee Women's Hospital (Employer) and changed Claimant's benefit status from total to partial based on a December 3, 2019, Impairment Rating Evaluation (IRE). Upon review, we affirm.

I. Factual & Procedural Background

The facts underlying this appeal are not in dispute. Claimant sustained a work-related injury on August 30, 2008. WCJ Op. at 3; Certified Record (C.R.) #5. Employer issued a Notice of Compensation Payable and began paying Claimant temporary total disability (TTD) benefits of $403.50 per week. Id . On May 26, 2011, Claimant underwent an IRE (2011 IRE), which returned a 6% impairment rating based on the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). Id . Employer filed a Notice of Change in Benefit Status based on the 2011 IRE, and Claimant's benefit status was changed to temporary partial disability (TPD) as of the date of the 2011 IRE. Id .

At the time Claimant underwent the 2011 IRE, the governing statutory provision was former Section 306(a.2) of the Workers’ Compensation Act (Act),¹ which provided for impairment ratings based on the current edition of the AMA Guides. Former 77 P.S. § 511.2. Subsequently, however, in Protz v. Workers’ Compensation Appeal Board (Derry Area School District) , 124 A.3d 406, 416-17 (Pa. Cmwlth. 2015) ( Protz I ), this Court found the previous IRE statute unconstitutional and determined that IREs should be subject to the Fourth Edition of the AMA Guides, the edition in effect when Section 306(a.2) was enacted. Our Supreme Court struck Section 306(a.2) in its entirety in Protz v. Workers’ Compensation Appeal Board (Derry Area School District) , 639 Pa. 645, 161 A.3d 827, 835-36 (2017) ( Protz II ).² Based on the Protz cases, Claimant sought reinstatement of her TTD status, which was granted as of February 19, 2016. WCJ Op. at 3.

Thereafter, the General Assembly enacted Act 111 of 2018 (Act 111), which replaced former Section 306(a.2) with Section 306(a.3). 77 P.S. § 511.3.³ Like the previous provisions, Act 111 enabled an employer to require a claimant to undergo an IRE once the claimant had received at least 104 weeks of total disability benefits after sustaining a work-related injury. See Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada) , 238 A.3d 551, 561 (Pa. Cmwlth. 2020). Act 111 also reduced the previous threshold impairment rating for modification from TTD to TPD status from 50% compared to that of a whole and unimpaired person to 35%, making it more difficult for employers to change total disability status to partial disability status. Id . at 562. Also, under Section 306(a.3), as under the previous provision, TTD status has no time limit, but TPD status after modification via an IRE is limited to 500 weks of benefits.⁴ Id . at 558. Relevant to this appeal, Act 111 specifically granted employers credit for any weeks of TTD or TPD benefits paid prior to its effective date of October 24, 2018. 77 P.S. § 511.3, Historical and Statutory Notes. This allowed employers to seek IREs and pursue modification for workers like Claimant whose injuries occurred prior to Act 111.

Based on Act 111, Employer requested that Claimant undergo another IRE, which she ultimately did on December 3, 2019 (2019 IRE). WCJ. Op. at 3. After the 2019 IRE returned an impairment rating of 23%, below the 35% threshold for maintaining TTD status, Employer filed a modification petition seeking to change Claimant's status to TPD. Id . Claimant raised and preserved constitutional challenges to Act 111, which the WCJ noted, but having no jurisdiction to rule on such issues, the WCJ granted Employer's petition and modified Claimant's status to TPD as of December 3, 2019, the date of the 2019 IRE. Id . at 6 & Order. The Board confirmed that it also had no jurisdiction to rule on the constitutionality of its own enabling legislation, but noted that the constitutional issues raised by Claimant had already been addressed and rejected by this Court in Pierson v. Workers’ Compensation Appeal Board (Consol Pennsylvania Coal Company LLC) , 252 A.3d 1169 (Pa. Cmwlth.), appeal denied , 261 A.3d 378 (Pa. 2021). Board Op., 7/1/21, at 3-4; C.R. #8. The Board therefore affirmed the WCJ's decision. Id . & Order. Claimant now appeals to this Court.⁵

II. Discussion

Claimant challenges the credit provisions of Act 111, which state:

(1) For the purposes of determining whether an employee shall submit to a medical examination to determine the degree of impairment and whether an employee has received total disability compensation for the period of 104 weeks under section 306(a.3)(1) of the act, an insurer shall be given credit for weeks of total disability compensation paid prior to the effective date of this paragraph . This section shall not be construed to alter the requirements of section 306(a.3) of the act.

(2) For the purposes of determining the total number of weeks of partial disability compensation payable under section 306(a.3)(7) of the act, an insurer shall be given credit for weeks of partial disability compensation paid prior to the effective date of this paragraph .

Act 111, § 3(1), (2) (emphasis added). Here, because Employer had paid Claimant 104 weeks of TTD benefits between her injury in 2008 and 2010, Employer claimed credit for those weeks under Subsection 1 and sought an IRE under Act 111 in December 2019. WCJ Op. at 3. Claimant maintains that by permitting employers to use weeks of TTD accrued under the previous, unconstitutional IRE statute, Act 111's credit provisions violate the Pennsylvania Constitution's due process and due course of law principles and the "reasonable compensation" requirement of Article III, Section 18 of the Pennsylvania Constitution.

A party challenging the constitutionality of a statute must meet a heavy burden. We presume legislation to be constitutional absent a demonstration that the statute "clearly, palpably, and plainly" violates the Constitution. Konidaris v. Portnoff L. Assocs., Ltd. , 598 Pa. 55, 953 A.2d 1231, 1239 (2008). Applying this standard, we reject Claimant's constitutional challenges to Act 111.

A. Due Process & Due Course of Law Claims

Article I, Section 1 of the Pennsylvania Constitution is the basis of constitutional due process protections.⁶ Pa. Const. art. I, § 1. The due process requirement with respect to both prospective and retroactive aspects of legislation is "a legitimate legislative purpose furthered by rational means." Bible v. Dep't of Lab. & Indus. , 548 Pa. 247, 696 A.2d 1149, 1155 (1997) (stating that Pennsylvania has adopted the federal constitutional standard for due process analysis of economic legislation). With regard to retroactive application of statutes, "retrospective laws which have been deemed reasonable are those which impair no contract and disturb no vested right, but only vary remedies, cure defects in proceedings otherwise fair, and do not vary existing obligations contrary to their situation when entered into and when prosecuted." Id . at 1156 (quoting Krenzelak v. Krenzelak , 503 Pa. 373, 469 A.2d 987, 991 (1983) ). A vested right in this context is "something more than a mere expectation based upon an anticipated continuance of existing law. It must have become a title legal or equitable to the present or future enforcement of a demand, or a legal exemption from a demand made by another." Id . (quoting Lewis v. Pa. R. Co. , 220 Pa. 317, 69 A. 821, 823 (1908) ).

Due course of law protections arise from Article I, Section 11 of the Pennsylvania Constitution.⁷ Pa. Const. art. I, § 11. Our Supreme Court has explained that

[a]lthough similar to the oft-used term "due process," the term "due course of law" has a distinct meaning in the Remedies Clause: "The right to due process protects people against official deprivations of liberty or property by the state, except by ‘law of the land.’ By contrast, the right to ‘due course of law’ provides an independent guarantee of legal remedies for private wrongs by one person against another, through the state's judicial system."

Konidaris , 953 A.2d at 1240 (quoting Ken Gormley, et al., The Pennsylvania Constitution: A Treatise on Rights and Liberties, 14.1-14.5 (2004)). Like due process, due course of law requires a party to establish a vested right impacted by a retroactive statutory action, and the definition of a vested right is the same. Id . at 1241-42 (quoting Lewis , 69 A. at 823 ). Therefore, at issue here is whether Claimant has a vested right in the TTD status restored to her as of February 2016 after the Protz cases struck the prior IRE statute but before the enactment of Act 111 in October 2018.

This Court squarely addressed this question in Pierson . There, the claimant sustained a work-related injury in 2014. 252 A.3d at 1172. In light of the Protz cases, the claimant was not subject to an IRE and therefore was on TTD status until December 2018, when the employer sought an IRE after Act 111 became effective. Id. The IRE returned an impairment rating of 3% and the claimant's status was modified to TPD as of the IRE date. Id . The claimant preserved due process and due course of law challenges to Act 111, which the WCJ and Board did not rule on,...