Commonwealth Court of Pennsylvania Upholds Constitutionality of Act 111

In Terry Brown vs. WCAB (City of Philadelphia), No 154 CD 2022, Justice Patricia A. McCullough, in a Memorandum Opinion for the Commonwealth Court of Pennsylvania on July 26, 2023, wrote that Act 111 is constitutional. In this case, an IRE per Act 111 of 2018 was conducted on June 4, 2020. The detailed particulars of the case are as follows:

Background

In this case, the IRE physician found a whole body impairment of 13%, which is under the 35% threshold. As such, the Workers’ Compensation Judge granted Employer’s Petition to Modify, modifying benefits to partial status as of June 4, 2020.

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Appeal Against WCJ’s Decision

Claimant appealed, asserting that the WCJ erred in granting the Petition to Modify, asserting that Act 111 is not constitutional. (pointing to the Due Process Clause in the 5th and 14th Amendments and various provisions of the Pennsylvania Constitution, including the Ex Post Facto Clause in Article 1).

The Common Wealth’s Decision

The Court held that Act 111 is indeed constitutional, as it held in previous cases on this issue. They noted that as long as the IRE doesn’t pre-date Act 111 (of 2018), then it’s constitutional. While attempts have been made to challenge Act 111, at this point, it seems settled that it’s here to stay.

Conclusion

The Impairment Rating Process in this writer’s opinion is perhaps the most unfair aspect of the Pennsylvania Workers’ Compensation Act. There are many people who fall under the threshold requirement, but who cannot work due to their work injuries. We realize it’s a way to keep insurance companies alive- giving them a light at the end of the proverbial tunnel with respect to indemnity benefits. By way of reminder, remember if you fall under the 35% whole body impairment, your status changes from total to partial disability and that gives the insurer a 500 week cap on wage loss/indemnity benefits. The good news is many insurers forget to scheduled the Impairment Rating Exams, yielding more weeks of TTD payments for injured workers.