Can Act 111 Be Applied Retroactively to Impairment Rating Evaluations Prior to Its Passage in 2018?

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In City of Pittsburgh vs. WCAB (Donovan), No. 1804 C.D. 2019 (4/22/2021) claimant sustained a work injury in July 2010 to both his shoulders. That injury was accepted by the employer, and claimant received wage loss benefits. In January 2013, claimant underwent an impairment rating evaluation which demonstrated a 15 percent whole body impairment. The parties entered into a stipulation adopted by a judge wherein claimant’s benefits were modified in character only to partial disability benefits. As a result, the 500-week clock for receipt of partial disability benefits began to run as of January 2013.

Following the Pennsylvania Supreme Court’s Decision in Protz II issued in 2017, claimant filed Modification and Review Petitions. Those petitions, which were filed in November 2017, sought reinstatement of claimant’s benefits from partial to total in character. In support of that petition, claimant only presented his testimony that he continued to have a loss in strength and a worsening of symptoms. Claimant also stated that he could not work due to his shoulder injuries. In opposition to claimant’s petitions, defendant sought an independent medical examination in addition to vocational evidence. The judge allowed defendant to obtain an independent medical examination but indicated that defendant was not entitled to develop vocational evidence in defense of the petitions. In a May 2019 decision, the judge granted claimant’s petitions and credited claimant’s testimony that he had ongoing disability resulting from his injury. The judge rejected defendant's argument that Act 111 passed in 2018 applied retroactively to the 2013 impairment rating evaluation. Defendant appealed to the Workers' Compensation Appeal Board. The decision was upheld by the board.

On Appeal to the Commonwealth Court Affirmed

The Commonwealth Court upheld the judge’s decision. The court first addressed the issue of whether vocational evidence was relevant to the impairment rating determination. The court cited to earlier precedent and stated that earning power was not a factor when determining a change in disability status under an impairment rating evaluation. The court further provided that to require proof of both a claimant’s level of impairment and a change in earning power would render the impairment rating provisions meaningless.

The court also addressed defendant’s argument that Act 111 passed on October 24, 2018, should be applied retroactively. The court cited to the presumption that a statute is read prospectively unless it provides clearly to the contrary. The court further noted the exception to this principle where the statute is merely procedural and does not alter any substantive rights, in which case it may be retroactively applied irrespective of whether the statutory amendment includes an express retroactivity clause. The court stated that the provision of Act 111 providing for a credit to employers and insurers for weeks of total and or partial compensation benefits paid prior to the passage of the Act expressly applied for retroactive application of that provision. However, the court held that nothing in Act 111 expressly provided that Act 111 could not be applied retroactively to salvage an invalidated impairment rating evaluation performed in 2013.

Summary

This case answers questions relative to the impact of Act 111 on prior impairment rating evaluations. Specifically, an employer and or carrier is entitled to use total disability benefits paid prior to the enactment of Act 111 against the 104-week threshold to request an impairment rating evaluation under Act 111. Additionally, if the pre Act 111 impairment rating evaluation met the requirements of Act 111, including having an impairment less than 35 percent, then the carrier could be entitled to a credit for the partial disability benefits paid between the initial impairment rating evaluation and a claimant’s reinstatement petition reinstating benefits to total disability benefits. However, an employer and or carrier cannot use Act 111 to retroactively save an impairment rating evaluation that was invalidated prior to October 24, 2018, when Act 111 was enacted. Rather, if the prior impairment rating was invalidated under Protz II, a new impairment rating would have to be performed under Act 111.

Vocational evidence is not relevant in the impairment rating inquiry. When determining if a claimant’s benefits should be modified from total to partial in character only, via the impairment rating process, vocational evidence is not relevant. However, vocational evidence continues to be relevant in seeking a reduction in claimant’s wage loss checks. Moreover, vocational evidence that is credited and results in a reduction or suspension of a claimant’s benefits will also trigger the 500-week clock for receipt of partial disability benefits.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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