S.J. Clapper v. Com. of PA (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shane J. Clapper, :
Petitioner :
:
v. : No. 517 C.D. 2021
: Submitted: December 30, 2021
Commonwealth of Pennsylvania :
(Workers’ Compensation Appeal :
Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: April 13, 2022
Shane J. Clapper (Claimant) petitions this Court for review of the April 20,
2021 order of the Workers’ Compensation Appeal Board (Board), which affirmed
the decision of a workers’ compensation judge (WCJ) modifying Claimant’s total
disability benefits based on the results of an impairment rating evaluation (IRE)
conducted pursuant to Section 306(a.3) of the Workers’ Compensation Act (Act).1
On appeal, Claimant challenges the constitutionality of Act 111 and argues that an
1
Act of June 2, 1915, P.L. 736, as amended, added by Act of October 24, 2018, P.L. 714,
No. 111 (Act 111), 77 P.S. § 511.3. Section 306(a.3)(1) of the Act requires that an employee who
has received total disability compensation for 104 weeks submit to an IRE pursuant to the
American Medical Association’s “Guides to the Evaluation of Permanent Impairment,” Sixth
edition (second printing April 2009) (AMA Guides), for the purpose of determining his degree of
whole body impairment (WBI) due to the compensable injury. 77 P.S. § 511.3(1). If the IRE
results in a WBI that is less than 35%, the employee shall receive partial disability benefits under
Section 306(b) of the Act. 77 P.S. § 511.3(2). Section 306(b)(1) of the Act limits a claimant’s
receipt of partial disability benefits to 500 weeks. 77 P.S. § 512(1).
IRE under Section 306(a.3) of the Act cannot be performed until regulations have
been promulgated to effectuate the provisions of Act 111. After review, we affirm.
I. Background
The underlying facts are undisputed. Claimant suffered a work injury to his
lower back and right hip on April 24, 2012, while in the course of his employment
as a corrections officer for the Commonwealth of Pennsylvania (Employer).
Certified Record (C.R.), Item No. 14. Employer accepted liability for Claimant’s
work injury through issuance of a notice of compensation payable (NCP).2 Id.
Based on the results of a June 28, 2019 IRE, which assigned Claimant a WBI
rating of 18%, Employer filed a petition to modify Claimant’s total disability
benefits pursuant to Section 306(a.3) of the Act. C.R., Item No. 2. Claimant
disputed the results of the June 28, 2019 IRE and generally challenged the
constitutionality of the IRE provisions in the Act. C.R., Item No. 4. On June 29,
2020, the WCJ granted Employer’s petition and modified Claimant’s disability
benefits from total to partial, effective June 28, 2019. C.R., Item No. 5, at 7.
Claimant appealed to the Board, which affirmed the WCJ’s order on April 20, 2021.
C.R., Item No. 8. This appeal followed.3
2
The NCP indicates that Claimant would receive “salary continuation” under what is
commonly referred to as the Heart and Lung Act (HLA). Act of June 28, 1935, P.L. 477, as
amended, 53 P.S. §§ 637-638. Section 1(a) of the HLA relevantly provides that a corrections
officer who is injured in the performance of his duties shall receive his full rate of salary, to be
paid by the Commonwealth. 53 P.S. § 637(a). The Commonwealth has a right of subrogation to
any workers’ compensation benefits received or collected by the insured employee. Id.
3
Our standard of review is limited to determining whether the WCJ’s findings of fact were
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. Lehigh Specialty Melting, Inc. v. Workers’ Comp. Appeal Bd.
(Bosco), 260 A.3d 1053, 1058 n.3 (Pa. Cmwlth. 2021).
2
II. Issues
Claimant argues (1) that Act 111 unconstitutionally deprives him of property
rights and violates his due process and equal protection rights under the
Pennsylvania and United States Constitutions; (2) that an IRE under Section 306(a.3)
of the Act cannot be performed until regulations have been promulgated to effectuate
the provisions of Act 111; and (3) that the enactment of Act 111 represents an
unconstitutional delegation of legislative authority.
III. Discussion
Act 111 largely reenacted IRE provisions contained in former Section
306(a.2) of the Act,4 which this Court partially struck down in Protz v. Workers’
Compensation Appeal Board (Derry Area School District), 124 A.3d 406, 416 (Pa.
Cmwlth. 2015) (Protz I), aff’d, 161 A.3d 827 (Pa. 2017) (Protz II), as an
unconstitutional delegation of legislative power, because it provided that an IRE
should be conducted pursuant to the “most recent” version of the AMA Guides. We
directed that future IREs must utilize the Fourth Edition of the AMA Guides, the
version in effect at the time former Section 306(a.2) was enacted. Id. at 417. The
Supreme Court affirmed this Court in Protz II but struck down Section 306(a.2) in
its entirety. In the wake of Protz I and II, some claimants whose total disability
benefits had been modified based on an IRE performed under former Section
306(a.2) of the Act were entitled to reinstatement of their total disability benefits.5
4
Added by the Act of June 24, 1996, P.L. 350, formerly 77 P.S. § 511.2, repealed by
Section 1 of Act 111.
5
See Whitfield v. Workers’ Comp. Appeal Bd. (Tenet Health Sys. Hahnemann LLC), 188
A.3d 599 (Pa. Cmwlth. 2018) (claimant whose disability status was modified pursuant to an IRE
rendered invalid by Protz II, and who filed a petition seeking reinstatement of total disability
benefits within three years of her last payment of compensation, was entitled to reinstatement as
of the date she filed her reinstatement petition).
3
In reenacting the IRE provisions invalidated by Protz II, Section 3(1)-(2) of Act 111
provides that, when calculating the number of total and partial disability weeks a
claimant has received, an employer “shall” be granted a credit for any weeks paid
prior to October 24, 2018, the date on which Act 111 became effective.
Claimant’s first constitutional argument baldly asserts, without supporting
references to legal authority or fact, that the partial disability credit provision in
Section 3(2) of Act 1116 unconstitutionally deprives him of property rights, and
violates his constitutional rights to due process and equal protection.7
Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure requires, in
pertinent part, that an appellate brief include “such discussion and citation of
authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). This Court has repeatedly
held that we will not consider the merits of an issue that is not properly raised and
developed in a brief. Am. Rock Mech., Inc. v. Workers’ Comp. Appeal Bd. (Bik &
Lehigh Concrete Tech.), 881 A.2d 54, 56 (Pa. Cmwlth. 2005). See also
Commonwealth v. Rompilla, 983 A.2d 1207, 1210 (Pa. 2009) (appellant’s failure to
adequately develop its arguments or support its bald assertions with sufficient
citation to legal authority impedes meaningful judicial review of its claims).
6
In his brief, Claimant raises the constitutional infirmity of Section 314 of the Act, 77 P.S.
§ 651, which concerns a claimant’s responsibility for submitting to a physical examination at the
request of his employer. We presume the reference to Section 314 is a typographical error, as
Claimant otherwise challenges the credit provisions contained in Section 3 of Act 111.
7
Even had Claimant properly developed his constitutional argument, we cannot perceive
how Claimant is harmed by the credit provisions in Section 3 of the Act. Claimant’s disability
status was first modified on June 28, 2019, approximately eight months after Act 111 was enacted,
and there is no evidence to suggest that Employer ever paid Claimant partial disability benefits
under an IRE invalidated by Protz II. As a result, the credit provisions of Section 3 do not apply
to the instant matter.
4
Claimant’s purported constitutional argument consists of two paragraphs, the
first of which simply relates to various provisions of Act 111. The second paragraph
provides as follows:
The new language in Section [3] of [the] Act, which was
also included in Act 111, represents an unconstitutional
deprivation of property rights. Act 111 permits the
[e]mployer to take a credit for partial disability benefits
that were paid prior to the effective date of Act 111. By
providing for such a credit, Act 111 violates the due
process and equal protections [sic] provisions of the
Pennsylvania and United States Constitutions.
Claimant’s Br. at 8-9. This generic reference to property rights and constitutional
due process and equal protection provisions hardly constitutes the development of
an argument and utterly fails to comport with the requirements of Pa.R.A.P. 2119(a).
Claimant’s argument is therefore deemed waived as insufficiently developed, and
we will not address it further.
The deficiency of Claimant’s second argument exceeds that of his first, as
Claimant simply asserts that regulations have not yet been promulgated to effectuate
the provisions of Act 111. “Thus, Claimant respectfully suggests that it is a violation
of the Act to proceed with IRE’s [sic] before such regulations are adopted.”
Claimant’s Br. at 9. Claimant’s second argument is also waived, having been
insufficiently developed.
Claimant’s final argument, the only one brought properly before this Court,
contends that Act 111 unconstitutionally confers legislative powers to a body other
than the General Assembly, in violation of article II, Section 1 of the Pennsylvania
5
Constitution.8 Claimant asserts that Act 111 has not alleviated the deficiencies
identified in Protz II, in which our Supreme Court rejected the language in former
Section 306(a.2) of the Act that an IRE be performed in accordance with “the most
recent edition” of the AMA Guides.9 The Supreme Court held that such language
effectively adopted, “sight unseen,” any future edition of the AMA Guides, thus
granting the AMA “unfettered control” over the standards that would determine a
claimant’s disability status. Protz II, 161 A.3d at 836, 839.
We disagree with Claimant, as we have previously reviewed, and rejected,
this argument in Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306, 316 (Pa.
Cmwlth. 2019), affirmed per curiam (Pa., No. 88 MAP 2019, filed August 18, 2020),
holding that the General Assembly’s enactment of Act 111 did not violate article II,
Section 1 of the Pennsylvania Constitution, as it merely adopted the existing set of
standards set forth in the Sixth edition, second printing, of the AMA Guides.
IV. Conclusion
Claimant’s first two arguments are waived, having been insufficiently
developed. As this Court has previously held that the enactment of Section 306(a.3)
of the Act did not violate article II, Section 1 of the Pennsylvania Constitution, we
affirm the Board’s order.
__________________________________
ELLEN CEISLER, Judge
8
Article II, Section 1 provides that “[t]he legislative power of this Commonwealth shall be
vested in a General Assembly, which shall consist of a Senate and a House of Representatives.”
Pa. Const. art. II, § 1.
9
Formerly 77 P.S. § 511.2.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shane J. Clapper, :
Petitioner :
:
v. : No. 517 C.D. 2021
:
Commonwealth of Pennsylvania :
(Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
AND NOW, this 13th day of April, 2022, the April 20, 2021 order of the
Workers’ Compensation Appeal Board is AFFIRMED.
__________________________________
ELLEN CEISLER, Judge