C. Bundschuh v. Gwynedd Veterinary Hospital, Inc. (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Colleen Bundschuh, :
Petitioner :
:
v. : No. 556 C.D. 2021
: Submitted: December 17, 2021
Gwynedd Veterinary Hospital, Inc. :
(Workers’ Compensation Appeal :
Board), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: April 11, 2022
Colleen Bundschuh (Claimant) petitions this Court for review of the May 6,
2021 order of the Workers’ Compensation Appeal Board (Board), which affirmed
the decision of a workers’ compensation judge (WCJ), granting Gwynedd
Veterinary Hospital, Inc.’s (Employer) petition to suspend Claimant’s total disability
benefits based on the results of a September 30, 2019 impairment rating evaluation
(IRE) conducted pursuant to Section 306(a.3) of the Workers’ Compensation Act
(Act).2 Claimant argues on appeal that the newly enacted IRE provisions in Section
1
This matter was assigned to the panel before January 3, 2022, when President Judge
Emerita Leavitt became a senior judge on the Court.
2
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. A claimant who has received total disability benefits for 104
weeks must submit to an IRE, which is used to calculate the claimant’s degree of impairment due
to the compensable injury. If a claimant’s whole body impairment (WBI) rating is less than 35%,
the claimant shall receive partial disability benefits pursuant to Section 306(b) of the Act. Section
(Footnote continued on next page…)
306(a.3) of the Act do not apply to injuries sustained prior to its effective date, and,
therefore, the WCJ erred in suspending Claimant’s disability benefits based on her
prior receipt of total and partial disability benefits. After review, we affirm.
I. Background
The factual and procedural history of this matter is undisputed. Claimant
suffered a lumbar strain on March 9, 2004, while in the course of her employment.
Certified Record (C.R.), Item No. 5, WCJ Decision, Finding of Fact (F.F.) No. 1.
Employer accepted liability for the work injury through issuance of a notice of
temporary compensation payable (NTCP),3 and commenced paying Claimant total
disability benefits on March 10, 2004. C.R., Item No. 12, NTCP.
On March 29, 2010, Employer filed a petition seeking to modify Claimant’s
disability benefits from total to partial, based on the results of an October 13, 2009
IRE conducted under former Section 306(a.2) of the Act,4 which assigned Claimant
306(b) of the Act limits a claimant’s receipt of partial disability benefits to 500 weeks. 77 P.S. §
512.
3
Claimant’s NTCP converted to a notice of compensation payable by operation of law.
WCJ Decision, F.F. No. 1.
4
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), this Court held
that former Section 306(a.2) of the Act, added by the Act of June 24, 1996, P.L. 350, formerly 77
P.S. § 511.2, repealed by Section 1 of Act 111, was an unconstitutional delegation of legislative
power, as it provided that an IRE should be performed under the “most recent” version of the
American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA
Guides). Protz I, 124 A.3d at 416. We directed that future IREs must utilize the Fourth Edition
of the AMA Guides, the version in effect at the time 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.
Act 111 largely reenacted the IRE provisions held unconstitutional in Protz II but specified
that an IRE must utilize the Sixth Edition (second printing April 2009) of the AMA Guides. Act
111 also reduced the threshold percentage of disability by which a claimant’s disability status may
be modified from less than 50%, under former Section 306(a.2) of the Act, to less than 35%.
2
a 7% whole body impairment (WBI) rating. C.R., Item No. 15. A WCJ granted
Employer’s modification petition, effective October 13, 2009. C.R., Item No. 15.
Claimant did not appeal this decision. Claimant’s 500-week period of partial
disability expired in May 2019. C.R., Item No. 10, WCJ Hearing, 5/13/20, at 5.
On June 4, 2019, Claimant filed a petition seeking reinstatement of her total
disability benefits based on a “worsening of condition.” C.R. Item No. 13, April 28,
2020 WCJ Decision, F.F. No. 2. WCJ Joseph Stokes (Judge Stokes) credited
Claimant’s testimony that she remained disabled from her March 9, 2004 work
injury, and concluded that she was entitled to reinstatement of her total disability
benefits, based on the Supreme Court’s decision in Protz II. Id. Accordingly, Judge
Stokes reinstated Claimant’s total disability benefits, effective June 4, 2019. Id. at
5.
Thereafter, Employer filed a petition to modify Claimant’s total disability
benefits based on the results of a September 30, 2019 IRE conducted pursuant to
Section 306(a.3) of the Act, which assigned Claimant a WBI rating of 2%. C.R.,
Item No. 2. Employer also sought a suspension of Claimant’s disability benefits
based on Employer’s right to a credit for previously paid weeks of partial disability
benefits under Sections 3(1) and 3(2) of Act 111.5 C.R., Item No. 3. In an August
26, 2020 decision, the WCJ granted Employer’s suspension petition, as the
September 30, 2019 IRE demonstrated Claimant’s WBI rating fell below the 35%
5
Section 3(1) of Act 111 provides that, for purposes of calculating whether a claimant has
received 104 weeks of total disability benefits and must submit to an IRE under Section 306(a.3)
of the Act, an employer “shall be given credit for weeks of total disability compensation paid
prior to” Act 111’s effective date, which is October 24, 2018. 77 P.S. § 511.3, Historical and
Statutory Notes (emphasis added). Section 3(2) of Act 111 provides that, for purposes of
determining the total number of weeks of partial disability to which a claimant is entitled, an
employer “shall be given credit for weeks of partial disability compensation paid prior to” Act
111’s effective date. Id.
3
threshold established in Section 306(a.3) of the Act, and Employer was entitled to a
credit for Claimant’s receipt of partial disability benefits over a period exceeding
500 weeks. C.R., Item No. 5, Conclusion of Law (COL) Nos. 2-3. The WCJ
dismissed Employer’s modification petition as moot. COL No. 3. Claimant
appealed to the Board, which affirmed. C.R., Item No. 8. This appeal followed.6
The issue before the Court is whether the WCJ erred in granting Employer’s
suspension petition based on disability benefits Claimant received prior to the
effective date of Act 111.
II. Discussion
Claimant argues that she has a “vested right” to receive disability benefits
under the Act, and the WCJ improperly gave retroactive effect to the IRE provisions
in Act 111 when she granted Employer a credit for its payment of disability benefits
prior to Act 111’s effective date. Claimant’s Br. at 21.
In support of these contentions, Claimant cites Section 1926 of the Statutory
Construction Act of 1972 (SCA), 1 Pa.C.S. § 1926, which provides that “[n]o statute
shall be construed to be retroactive unless clearly and manifestly so intended by the
General Assembly.” Claimant also cites Section 15.71 of the Legislative Drafting
Manual which provides as follows:
(a) Use. If a statute is to apply retroactively, it is necessary
to include a provision to achieve this effect. [Section
1926 of the SCA] provides that no statute shall be
construed to be retroactive unless clearly and
manifestly so intended by the General Assembly.
6
Our review is limited to determining whether constitutional rights were violated, whether
the adjudication is in accordance with the law, or whether necessary findings of fact are supported
by substantial evidence. City of Phila. v. Workers’ Comp. Appeal Bd. (Sherlock), 934 A.2d 156,
159 n.5 (Pa. Cmwlth. 2007).
4
(b) Form. A retroactive provision may be in substantially
the following form:
“This act shall take effect immediately and shall be
retroactive to January 1, 1973.”
101 Pa. Code § 15.71.
Claimant points out that Section 4 of Act 111 only provides that it “shall take
effect immediately[,]” and its provisions are not given retroactive effect to a specific
date. She contends, therefore, that the IRE provisions of Act 111 are only triggered
by total and partial disability benefits paid to a claimant after the effective date of
October 24, 2018. Because Claimant’s total disability benefits were only reinstated
as of June 4, 2019, Claimant argues that Employer could not seek a new IRE under
Section 306(a.3) until it paid Claimant 104 weeks of total disability benefits,
commencing on June 4, 2019. Accordingly, the September 30, 2019 IRE could not
serve as a basis for modifying Claimant’s disability status.
Claimant also relies on our decision in Rose Corporation v. Workers’
Compensation Appeal Board (Espada), 238 A.3d 551 (Pa. Cmwlth. 2020), in which
we declined to give effect to an IRE conducted under former Section 306(a.2) of the
Act, which was deemed constitutionally invalid by Protz II. Additionally, Claimant
asks that this Court reconsider Pierson v. Workers’ Compensation Appeal Board
(Consol Pennsylvania Coal Company LLC), 252 A.3d 1169, 1180 (Pa. Cmwlth.
2021), in which we upheld Act 111’s constitutionality and recognized that the credit
provisions in Section 3 of Act 111 were “explicitly given retroactive effect by the
clear language of the General Assembly.” Claimant asserts that the “practical
impact” of Pierson would authorize the retroactive application of “any statute[,]”
resulting in the loss of an individual’s vested rights. Claimant’s Br. at 24. She also
challenges Pierson as inconsistent with Bible v. Department of Labor & Industry,
5
696 A.2d 1149 (Pa. 1997), which addressed the retroactive application of
amendments to Section 306(c) of the Act, 77 P.S. § 513.7
Employer responds that this Court has already addressed Claimant’s
arguments in prior decisions, most notably Pierson and Pennsylvania AFL-CIO v.
Commonwealth, 219 A.3d 306 (Pa Cmwlth. 2019), aff’d, (Pa., No. 88 MAP 2019,
filed August 18, 2020), in which we held that the enactment of the new IRE
provisions in Act 111 did not constitute an unconstitutional delegation of legislative
authority.
We agree with Employer. While Claimant is correct that statutes are to be
given prospective effect only, except where the statute includes clear language to the
contrary,8 her argument wholly ignores the express language in Sections 3(1)-(2) of
Act 111, which provides that an employer “shall be given credit for weeks of total
disability compensation paid prior to” Act 111’s effective date, and “shall be given
credit for weeks of partial disability compensation paid prior to” that date. 77 P.S.
§ 511.3, Historical and Statutory Notes (emphasis added). This Court cannot ignore
the express legislative intent in Section 3 simply because Claimant believes it fails
to follow the format suggested in Section 15.71(b) of the Legislative Drafting
Manual.
7
Section 306(c) of the Act was amended by the Act of February 23, 1995, P.L. 1, No. 1
(Act 1), which expanded the types of hearing loss for which specific loss benefits could be
awarded.
8
See Keystone Coal Mining Corp. v. Workmen’s Comp. Appeal Bd. (Wolfe), 673 A.2d 418,
420 (Pa. Cmwlth. 1996) (amendment to Section 204 of the Act, which provided an employer credit
for a claimant’s receipt of unemployment compensation benefits, did not apply retroactively, as
the amendment affected the substantive rights of a claimant, and the relevant legislation did not
specify that its provisions should have retroactive effect).
6
We reject Claimant’s contention that Pierson does not comport with the
Supreme Court’s decision in Bible. The legislation at issue in Bible, much like Act
111, “contain[ed] a specific legislative direction that it is to be retroactive.” Bible,
696 A.2d at 1151. We must also reject Claimant’s suggestion that our holding in
Pierson will lead to a widespread, and constitutionally suspect, retroactive
application of legislative enactments. Pierson merely reiterated the opinion
previously expressed in Rose Corporation that “[t]he plain language of Section 3 [of
the Act] evidence[d] legislative intent to give effect, after the passage of Act 111,
to these weeks of [total and partial disability] compensation, although they were paid
before the passage of Act 111.” Rose Corp., 238 A.3d at 562 (emphasis in original).
We noted that, under Section 3 of Act 111, the employer “would receive credit for
the 104 weeks of total disability” paid prior to Act 111’s effective date. Id. at 563.
Because the claimant had already received 104 weeks of total disability benefits, the
employer was entitled to immediately seek a new IRE under Section 306(a.3) of the
Act. We declined to give effect to the IRE invalidated by Protz II, as Act 111 did
not provide “specifically or implicitly” for the validation of an IRE performed prior
to the enactment of Section 306(a.3). Id.
Regarding Claimant’s purported loss of her “vested rights,” Section 413(a) of
the Act provides that a WCJ “may, at any time, modify, reinstate, suspend, or
terminate” an award of benefits upon proof that a claimant’s disability has
“increased, decreased, recurred, or has temporarily or finally ceased[.]” 77 P.S. §
772. We acknowledged this reality in Pierson, recognizing that a claimant
“retain[ed] a certain right to benefits until such time as [the claimant] is found to be
ineligible for them[,]” but cautioned that a claimant also had “reasonable
expectations under the Act that benefits may change.” Pierson, 252 A.3d at 1179.
7
In addition to the precedent already discussed, this Court has consistently
rejected the exact arguments raised by Claimant, as Employer correctly notes. See
Hutchinson v. Annville Twp. (Workers’ Comp. Appeal Bd.), 260 A.3d 360 (Pa.
Cmwlth. 2021) (additional 104-week waiting period not required before employer
can request an IRE under Section 306(a.3) of the Act); Hender-Moody v. Am.
Heritage Fed. Credit Union (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 166
C.D. 2021, filed February 15, 2022) (upholding the retroactive application of Act
111 to injuries that predate its effective date);9 Stoshick v. Air Prods. & Chems., Inc.
(Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 27 C.D. 2021, filed February 3,
2022) (language of Section 3 of Act 111 evidences clear legislative intent to grant
employers a credit for previously paid weeks of total and partial disability
compensation).
The September 30, 2019 IRE, which assigned Claimant a WBI rating of 2%,
was conducted pursuant to Section 306(a.3) of the Act, approximately 11 months
after Act 111’s enactment. There is no dispute that Employer paid Claimant total
disability benefits from March 4, 2004, until October 13, 2009, a more than
sufficient period to trigger the IRE provisions of the Act. Thereafter, Employer paid
Claimant partial disability benefits until her 500-week period of partial disability
expired in May 2019. Section 3 of Act 111 explicitly grants Employer a credit for
its payment of total and partial disability benefits. As Claimant has exhausted her
9
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, we may cite an
unreported opinion of this Court for its persuasive value. 210 Pa. Code § 69.414(a).
8
entitlement to partial disability benefits under the Act, the WCJ did not err in
granting Employer’s suspension petition. Accordingly, we affirm the Board.
__________________________________
ELLEN CEISLER, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Colleen Bundschuh, :
Petitioner :
:
v. : No. 556 C.D. 2021
:
Gwynedd Veterinary Hospital, Inc. :
(Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
AND NOW, this 11th day of April, 2022, the May 6, 2021 order of the
Workers’ Compensation Appeal Board is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge