Act 111, which enacted the Impairment Evaluation Provisions of Section 306(a.3) of the Pennsylvania Workers’ Compensation Act, is applicable to injuries sustained prior to its effective date and is not an unlawful delegation of legislative authority.

In this case, the claimant sustained a work injury on February 12, 2006. Subsequently, an IRE was performed on September 5, 2008, and an impairment rating of 0% was given. The employer filed a Notice of Change of Workers’ Compensation Disability Status (Change Notice). The claimant did not appeal the modification from total to partial disability.

After the Supreme Court’s decision in Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017)(Protz), the claimant filed a modification petition on January 12, 2018. This petition was granted, and the claimant was reinstated to total disability status. At the time he filed the petition, the claimant’s 500 weeks of partial disability had not yet been exhausted.

Thereafter, the employer filed a petition to modify the claimant’s benefits based on the results of a December 17, 2019, IRE, which gave the claimant a 29% impairment rating. This petition was granted by the Workers’ Compensation Judge, who overruled constitutional objections raised by the claimant. The claimant appealed the decision to the Workers’ Compensation Appeal Board, maintaining that Act 111 could not be retroactively apply to injuries that pre-existed Act 111’s effective date and that Act 111 is an unlawful delegation of legislative authority. The employer also appealed to the Board, arguing that it was entitled to a credit for previous partial disability benefits paid and that the judge should have suspended the claimant’s benefits. The Board affirmed the judge’s decision.

The parties filed appeals with the Commonwealth Court, which held that Act 111 could be applied retroactively for dates of injury that preceded the effective date of the legislation. Relative to the claimant’s argument, that Act 111 suffers from the same constitutional defect as former Section 306(a.2) of the Act, which was stricken from the Act by the Protz decision, the court rejected this argument, too, pointing out that the Supreme Court said in Protz that the Pennsylvania Constitution does not prevent the General Assembly from adopting its own particular set of standards, which were already in existence at the time of adoption. 

As for the employer’s argument that the Workers’ Compensation Judge should have ordered a suspension of benefits based on the credit provisions under Section 3 of Act 111, the Commonwealth Court held that Section 3(a.2) of the Act expressly grants an employer a credit for previous payments of partial disability benefits, that the prior payments were not “erased” as the Board concluded, or converted into total disability benefits because of the judge’s January 14, 2019, decision reinstating benefits. Therefore, the court remanded the matter to the judge so findings of fact could be made with respect to the employer’s entitlement to a credit under Section 3(a.2) of Act 111. 

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