Pierson v. Workers' Comp. Appeal Bd.
| Decision Date | 09 February 2021 |
| Docket Number | No. 423 C.D. 2020,423 C.D. 2020 |
| Citation | 250 A.3d 547 (Table) |
| Parties | Johnny PIERSON, Jr., Petitioner v. WORKERS’ COMPENSATION APPEAL BOARD (Consol Pennsylvania Coal Company LLC), Respondent |
| Court | Pennsylvania Commonwealth Court |
Johnny Pierson, Jr. (Claimant) petitions for review of the April 2, 2020 Opinion and Order (Order) of the Workers’ Compensation Appeal Board (Board), affirming the November 8, 2019 Decision and Order of the Workers’ Compensation Judge (WCJ), which granted the Petition to Modify Compensation Benefits (Modification Petition) filed by Consol Pennsylvania Coal Company LLC (Employer). In addition, Claimant requests that this Court grant his Application for Argument Before En Banc Panel (Application), filed on October 28, 2020, asserting that "this case presents issues of great public importance" and "will have a significant impact on the success or failure of many [w]orker[s’] [c]ompensation[ ] claimant[s’] cases," with a constitutional impact on the workers’ compensation impairment rating evaluation (IRE) process provided in the Pennsylvania Workers’ Compensation Act (Act). 1 Application, 10/28/2020, at 1-2. For the reasons that follow, we deny Claimant's Application and affirm the Board's Order.
On August 13, 2014, Claimant sustained a work-related injury in the nature of a "labral tear of the right shoulder," after he tripped while unloading pipe. The injury was recognized by Employer via a Notice of Compensation Payable (NCP). WCJ's Decision and Order, 11/8/2019, Finding of Fact (FOF) No. 1.
On December 21, 2018, Employer filed the Modification Petition, alleging that Claimant's benefits should be modified from temporary total disability (TTD) to partial disability, effective December 19, 2018, based on an IRE performed by Dr. Jeffrey Moldovan, D.O., on that date. FOF No. 2.
The WCJ found that Dr. Moldovan is trained and certified in the performance of IREs pursuant to the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment ( Guides ). FOF No. 4.a. Dr. Moldovan determined that Claimant had a whole body impairment rating of three percent based on the Sixth Edition of the Guides . FOF No. 4.e. The WCJ accepted Dr. Moldovan's testimony as credible and determined that Claimant had reached maximum medical improvement and had a whole body permanent impairment of three percent as of December 19, 2018. FOF No. 7.
The WCJ concluded that Employer met its burden and modified Claimant's benefits from total disability to partial disability based on the results of the IRE. WCJ's Decision and Order, 11/8/2019, Conclusion of Law (COL) No. 1. The WCJ further concluded that Claimant had preserved various constitutional arguments (relative to IREs and Section 306(a.3) of the Workers’ Compensation Act, Act 111), 2 which were beyond his jurisdiction to decide. COL No. 2. Thus, the WCJ did not address those arguments. Id .
Claimant appealed to the Board, arguing that the WCJ should not have credited Dr. Moldovan and should have given his medical opinion no weight because he is board certified in emergency medicine but is not an expert in orthopedics and is not a board-certified orthopedic surgeon. Claimant also raised the same constitutional issues he had raised before the WCJ.
On April 2, 2020, the Board issued its Order affirming the WCJ. In its Opinion, the Board determined that Dr. Moldovan testified that he is an expert in orthopedics and that the WCJ was within his prerogative as the sole arbiter of credibility and the weight to be assigned to the evidence. Thus, the WCJ's determination in this regard could not be disturbed on appeal. Reproduced Record (R.R.) at 166a.
The Board stated that "appellate review by the Board does not include constitutional issues." Id . (citing Ligonier Tavern v. Workers’ Comp. Appeal Bd. (Walker) , 714 A.2d 1008 (Pa. 1998) ). The Board added that "Claimant's arguments in this regard are preserved for any further appeal but are beyond this Board's appellate review and we will not address them further." R.R. at 167a. Accordingly, the Board affirmed the WCJ's Decision and Order granting Employer's Modification Petition. R.R. at 168a. Claimant now petitions this Court for review. 3
Before we address the arguments raised by the parties herein, it is valuable to provide a brief timeline and overview of some of the recent, prominent case law and statutory developments in workers’ compensation matters that are pertinent to the arguments made in the present case.
On September 18, 2015, this Court issued its decision in Protz v. Workers’ Compensation Appeal Board (Derry Area School District) , 124 A.3d 406 (Pa. Cmwlth. 2015) ( Protz I ), aff'd in part and rev'd in part , 161 A.3d 827 (Pa. 2017) ( Protz II ). In Protz I , we considered whether Section 306(a.2) of the Act 4 was an unconstitutional delegation of legislative authority pursuant to article II, section 1 of the Pennsylvania Constitution, 5 in that it gave the AMA the authority to establish the criteria under which a claimant would be adjudicated partially or totally disabled. In our decision, we held that Section 306(a.2) of the Act constituted an unconstitutional delegation of legislative authority insofar as it prospectively approved versions of the Guides beyond the Fourth Edition without review. As a remedy in Protz I , we remanded to the Board to remand to the assigned WCJ to apply the Fourth Edition of the Guides , which was the version of the Guides in effect at the time the IRE provisions were enacted.
For context, we note here, again, that Claimant in the present matter was injured on August 13, 2014, which was approximately one year prior to our decision in Protz I .
On June 20, 2017, nearly two years after our opinion in Protz I , our Supreme Court, in Protz II , addressed the issue of the constitutionality of former Section 306(a.2) of the Act. In Protz II , our Supreme Court held that the General Assembly unconstitutionally delegated its lawmaking authority in violation of the non-delegation doctrine of article II, section 1 of the Pennsylvania Constitution. Based on this determination, the Court struck former Section 306(a.2), in its entirety, from the Act. Former Section 306(a.2) of the Act read, in pertinent part:
When an employe has received total disability compensation pursuant to clause (a) for a period of one hundred four weeks...the employe shall be required to submit to a medical examination...to determine the degree of impairment due to the compensable injury, if any .... The degree of impairment shall be determined based upon an evaluation by a physician ... pursuant to the most recent edition of the [AMA Guides] .... (2) If such determination results in an impairment rating that meets a threshold impairment rating that is equal to or greater than fifty per centum ... the employe shall be presumed to be totally disabled and shall continue to receive total disability compensation benefits .... If such determination results in an impairment rating less than fifty per centum impairment ... the employe shall then receive partial disability benefits under clause (b) ....
Former 77 P.S. § 511.2 (emphasis added).
Subsequently, the General Assembly passed Act 111, which became effective on October 24, 2018. Act 111 replaced former Section 306(a.2) of the Act with new Section 306(a.3). Section 306(a.3) of the Act reads in pertinent part:
When an employe has received total disability compensation pursuant to clause (a) for a period of one hundred four weeks ... the employe shall be required to submit to a medical examination ... to determine the degree of impairment due to the compensable injury, if any .... The degree of impairment shall be determined based upon an evaluation by a physician ... pursuant to the most recent edition of the [AMA Guides], 6th edition (second printing April 2009) .... (2) If such determination results in an impairment rating that meets a threshold impairment rating that is equal to or greater than thirty-five per centum ... the employe shall be presumed to be totally disabled and shall continue to receive total disability compensation benefits .... If such determination results in an impairment rating less than thirty-five per centum impairment...the employe shall then receive partial disability benefits under clause (b) ....
77 P.S. § 511.3 (emphasis added).
We note here that Section 3(2) of Act 111 states: "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." 77 P.S. § 511.3, Historical and Statutory Notes.
In the matter before us, Claimant reiterates his argument that Dr. Moldovan's opinion should be accorded no weight because he is not accredited in orthopedic care and that while, as an emergency room doctor, he may "dabble in orthopedics from time to time," it does not mean he is an expert in orthopedics. Citing IA Construction Corporation v. Workers’ Compensation Appeal Board (Rhodes) , 139 A.3d 154, 164 (Pa. 2016), Claimant asserts that "[a] workers’ compensation judge may validly accord lesser weight to an out-of-specialty opinion regarding the degree of impairment associated with an injury." Claimant's Br. at 12. Thus, Claimant argues, Dr. Moldovan's IRE determination is not credible. Claimant's Br. at 12-13.
In addition, Claimant argues that Act 111 is unconstitutional "on its face," and that it cannot be "constitutionally applied in a retroactive manner, and thus it [can] only be applied to claims that have originated on or after the date of the passage of the present IRE...
To continue reading
Request your trial