Francis X. Wickersham

The claimant had sustained a work injury in 2008. In 2011, the claimant underwent an Impairment Rating Evaluation (IRE) and received a 6% impairment rating. The employer filed a notice of change in benefits status, and the claimant’s status was changed to temporary partial disability as of the date of the 2011 IRE. Following the Supreme Court’s Decision in Protz v. WCAB (Derry Area School District), 161 A.3d 827, 835-36 (Pa. 2017) (Protz II), the claimant’s temporary total disability status was reinstated as of February 19, 2016.

Following the passage of Act 111, the claimant underwent another IRE on December 3, 2019. An impairment rating of 23% was given. The employer filed a modification petition, and the claimant raised and preserved constitutional challenges. The judge granted the employer’s petition. The Appeal Board affirmed, both noted that they did not have jurisdiction to rule on the constitutional issues. The claimant challenged the credit provisions of Act 111, which allows for the insurer to be given credit for the number of weeks of total disability benefits paid prior to the effective date of the Act for purposes of determining whether an employee can submit to an IRE. The credit provision also allows for a credit for partial disability benefits paid prior to the date of the Act for purposes of determining the number of weeks partial disability is payable.

The Commonwealth Court dismissed the claimant’s appeal, noting that they previously addressed this issue in the case of Pierson v. WCAB (Consol Pennsylvania Coal Company, LLC), 252 A.3d 1169 (Pa. Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021). According to the court, Act 111 simply gives employers the means to change a claimant’s disability status from total to partial, provided there is a whole body impairment of less than 35%, after receiving 104 weeks of temporary total disability benefits. Further, the court noted that they have consistently held that Act 111 does not abrogate or substantially impair a claimants’ vested rights in workers’ compensation benefits because there is no ongoing right to temporary total disability status.

The Commonwealth Court also rejected an argument the claimant raised, which was that Act 111 would unconstitutionally permit employers to avoid the longstanding requirement to show that a claimant has regained some degree of earning power in order to be deemed partially disabled and replace it with an impairment rating not tied to earning power. The court noted that pre-Protz II, a change to partial disability status based on an IRE was treated by the court as distinct from and additional to, but not a replacement of, the traditional method of modification based on a showing of earning power. According to the court, the IRE process itself was not unreasonable and held that the restoration of the IRE process through Act 111 did not violate the “reasonable compensation” provision of Article III, Section 18 of the Pennsylvania Constitution.

 

_{What’s Hot in Workers’ Comp is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}