         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Teresa Naughton,                     :
                   Petitioner        :
                                     :
            v.                       :   No. 130 C.D. 2016
                                     :
Workers’ Compensation Appeal         :
Board (Lansdale Catholic High        :
School),                             :
                 Respondent          :

Lansdale Catholic High School,       :
                  Petitioner         :
                                     :
            v.                       :   No. 193 C.D. 2016
                                     :   Submitted: September 23, 2016
Workers’ Compensation Appeal         :
Board (Naughton),                    :
                  Respondent         :

BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                              FILED: January 18, 2017

            Teresa Naughton (Claimant) and Lansdale Catholic High School
(Employer) have filed cross petitions for review of an order of the Workers’
Compensation Appeal Board (Board) that affirmed and modified the decision of
the Workers’ Compensation Judge (WCJ). The Board affirmed the denial of
Claimant’s challenge to the modification of her disability status from total to
partial following an impairment rating evaluation (IRE), and modified the date of
the change from July 12, 2011, to April 19, 2013. Claimant argues that the Board
erred in affirming the WCJ’s denial of her review petition because her IRE was
unconstitutional under Protz v. Workers’ Compensation Appeal Board (Derry Area
School District), 124 A.3d 406 (Pa. Cmwlth. 2015), appeal granted, 133 A.3d 733
(Pa. 2016). Employer argues that the Board erred in altering the disability status
change date from July 12, 2011, to April 19, 2013. For the reasons that follow, we
vacate the Board’s order and remand for further proceedings.
            On January 26, 2005, Claimant sustained a work injury diagnosed as
post-concussive syndrome. Claimant received full disability benefits from January
28, 2005, to March 15, 2005, when she returned to work without wage loss. Eight
years later, by order dated March 25, 2013, a WCJ reinstated Claimant’s full
disability benefits retroactive to September 1, 2009. Reproduced Record at 19a
(R.R. ___). On April 19, 2013, Employer paid Claimant the amount awarded.
            That same day, Employer filed a Request for Designation of a
Physician to Perform an Impairment Rating Evaluation. On June 3, 2013, Dr.
Barry Schnall did an IRE, using the Sixth Edition of the American Medical
Association’s “Guides to the Evaluation of Permanent Impairment” (Sixth Edition
AMA Guides). Dr. Schnall determined that Claimant had a 39% impairment
rating. Based on this impairment rating, Employer issued a Notice of Change of
Workers’ Compensation Disability Status, which indicated that the effective date
of the change in the status of Claimant’s disability benefits was July 12, 2011,
when Claimant reached a total of 104 weeks of total disability.
            On July 16, 2013, Claimant filed a review petition to set aside the
modification of her disability status because the IRE was done more than 60 days
after her receipt of benefits for 104 weeks. The matter was assigned to a WCJ,
who found that Claimant had collected 104 weeks of total disability benefits as of
April 19, 2013, and that the IRE on June 3, 2013, took place within 60 days of that


                                         2
date. WCJ Decision and Order, 5/2/2014, at 3-4; R.R. 67a-68a. Accordingly, the
WCJ agreed with Employer that Claimant’s disability benefit status automatically
changed on July 12, 2011. WCJ Decision and Order, 5/2/2014 at 4; R.R. 68a.
              Claimant appealed to the Board and filed a supplemental brief
challenging the legitimacy of her IRE based upon this Court’s decision in Protz,
124 A.3d 406, which held that Section 306(a.2) of the Workers’ Compensation
Act1 (Act), 77 P.S. §511.2, was unconstitutional because it delegated legislative
authority to a private entity, i.e., the American Medical Association.2 The Board
affirmed the WCJ’s decision insofar as it rejected Claimant’s review petition, but
modified the effective date of the change in Claimant’s disability status to April
19, 2013, the date on which Claimant had received 104 weeks of total disability
compensation. Board Adjudication, 1/8/2016, at 9-10; R.R. 63a-64a. The Board
acknowledged this Court’s decision in Protz, but made no mention of Claimant’s
supplemental briefing of the issue and held the issue waived:

              In [Protz], the Commonwealth Court declared Section
              306(a.2) of the Act unconstitutional insofar as it
              proactively approved versions of the AMA Guides
              beyond the Fourth Edition without review. As Claimant
              has lodged no specific challenge to the edition utilized or
              the constitutionality of the enabling provision, we will
              address the issues specifically raised in the Appeal….




1
  Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
2
  Protz held that the legislature could adopt the Fourth Edition of the AMA Guides as the
statutory standard for IREs. However, the legislature could not adopt any future, unknown,
editions as its own, as it purported to do. Therefore, IREs have to be conducted in accordance
with the Fourth Edition, unless or until the legislature amends the Act.


                                              3
Board Adjudication, 1/8/2016, at 3 n.1; R.R. 57a (citations omitted). Claimant and
Employer both petitioned for this Court’s review.
              On appeal,3 Claimant argues that the Board erred in affirming the
WCJ’s decision to change her disability status because the IRE physician relied
upon the Sixth Edition of the AMA Guides, which rendered the IRE invalid under
Protz. Alternatively, Claimant contends that the Board erred in changing her
effective disability status change date to April 19, 2013, and contends that it should
be no earlier than June 3, 2013, the date on which the IRE was performed.
              Employer argues that Claimant did not raise any issue regarding the
IRE physician’s use of the Sixth Edition AMA Guides before the Board and, thus,
the issue is waived. Employer also argues the Board erred in modifying theWCJ’s
ordered inception of Claimant’s partial disability status from July 12, 2011, to
April 19, 2013.
              We begin with a review of the relevant law. Under Section 306(a.2)
of the Act, an employer may require a claimant to submit to an IRE upon receipt of
104 weeks of disability benefits. Section 306(a.2) provides criteria for determining
who can perform an IRE and the degree of a claimant’s impairment. It states:

              (1) When an employe has received total disability compensation
              pursuant to clause (a) for a period of one hundred four weeks,
              unless otherwise agreed to, the employe shall be required to
              submit to a medical examination which shall be requested by
              the insurer within sixty days upon the expiration of the one
              hundred four weeks to determine the degree of impairment due
              to the compensable injury, if any. The degree of impairment

3
  Our scope of review is to determine whether the necessary findings of fact are supported by
substantial evidence, whether constitutional rights were violated, or whether an error of law was
committed. City of Philadelphia v. Workers’ Compensation Appeal Board (Brown), 830 A.2d
649, 653 n.2 (Pa. Cmwlth. 2003).


                                               4
             shall be determined based upon an evaluation by a physician
             who is licensed in this Commonwealth, who is certified by an
             American Board of Medical Specialties approved board or its
             osteopathic equivalent and who is active in clinical practice for
             at least twenty hours per week, chosen by agreement of the
             parties, or as designated by the department, pursuant to the
             most recent edition of the American Medical Association
             “Guides to the Evaluation of Permanent Impairment.”

             (2) If such determination results in an impairment rating that
             meets a threshold impairment rating that is equal to or greater
             than fifty per centum impairment under the most recent edition
             of the American Medical Association “Guides to the Evaluation
             of Permanent Impairment,” the employe shall be presumed to
             be totally disabled and shall continue to receive total disability
             compensation benefits under clause (a). If such determination
             results in an impairment rating less than fifty per centum
             impairment under the most recent edition of the American
             Medical Association “Guides to the Evaluation of Permanent
             Impairment,” the employe shall then receive partial disability
             benefits under clause (b): Provided, however, that no reduction
             shall be made until sixty days’ notice of modification is given.

77 P.S. §511.2. (emphasis added). Specifically, Section 306(a.2) requires that the
degree of impairment be determined “pursuant to the most recent edition of the
American Medical Association ‘Guides to the Evaluation of Permanent
Impairment.’” Id.
             In Protz, this Court held that Section 306(a.2) of the Act violated the
constitutional proscription against the delegation of legislative authority because it
required the use of versions of the AMA Guides adopted after the Fourth Edition
without legislative review. Protz, 124 A.3d at 416. At the time Section 306(a.2)
was enacted, the General Assembly reviewed and adopted the Fourth Edition of the
AMA Guides as its own methodology. Id. at 416. We recognized that the General
Assembly, as part of its legislative authority, can adopt standards established by
                                          5
private institutions with expertise in a particular subject matter.                     Id. at 415.
Nevertheless, the General Assembly must make basic policy choices, or provide
standards to government agencies charged with adopting regulations to implement
the standards established by specialized outside groups. Id. We concluded that
Section 306(a.2) was devoid of any such standards, and the General Assembly
failed to review or re-adopt the methodology contained in any subsequent AMA
Guide editions. In effect, Section 306(a.2) was “provid[ing] a private party – the
AMA – with carte blanche authority to implement its own policies and standards,
proactively adopting those standards, sight unseen.” Id. at 416. Accordingly, we
held that Section 306(a.2) of the Act was unconstitutional by reason of its improper
delegation of legislative authority. Id. As a result, the Fourth Edition is the most
recent edition of the AMA Guides as a matter of law.
                 Claimant urges that her IRE, performed under the Sixth Edition AMA
Guides, is a nullity based on this Court’s holding in Protz. Employer responds that
this issue is waived because Claimant failed to raise it before the Board.
                 The doctrine of waiver is applicable in workers’ compensation
proceedings. Riley v. Workers’ Compensation Appeal Board (DPW/Norristown
State Hopsital), 997 A.2d 382, 387 (Pa. Cmwlth. 2010). Employer argues that
because Claimant failed to raise an issue regarding the use of the Sixth Edition
AMA Guides in her appeal forms, as required by Section 111.11(a)(2) of the
procedural rules promulgated by the Board (Board Rules), 34 Pa. Code
§111.11(a)(2),4 the issue was not properly preserved and is now waived. Employer


4
    Section 111.11(a)(2) provides that an appeal to the Board must contain:
          A statement of the particular grounds upon which the appeal is based, including
          reference to the specific findings of fact which are challenged and the errors of the
(Footnote continued on the next page . . .)
                                                   6
acknowledges that Claimant raised the issue, albeit in a supplemental brief to the
Board filed December 7, 2015, after this Court rendered its decision in Protz.
Employer maintains that supplemental briefing of the issue did not cure Claimant’s
waiver. We disagree.
              Although Claimant failed to comply with Section 111.11(a)(2) of the
Board Rules in raising the AMA Guides issue, it is not fatal to her claim. 5 The
Rules of Appellate Procedure and the Administrative Agency Law, 2 Pa. C.S.
§§501-502, 701-704, provide exceptions to waiver that allow an appellate court to
consider a question not considered by a lower court or government unit.
Pennsylvania Rule of Appellate Procedure 1551 provides, in pertinent part:

              (a) Appellate jurisdiction petitions for review. Review of
              quasijudicial orders shall be conducted by the court on the
              record made before the government unit. No question shall be
              heard or considered by the court which was not raised before
              the government unit except:

                      1.   Questions involving the validity of a statute.
                      2. Questions involving the jurisdiction of the
                      government unit over the subject matter of the
                      adjudication.


(continued . . .)
       law which are alleged. General allegations which do not specifically bring to the
       attention of the Board the issues decided are insufficient.
34 Pa. Code §111.11(a)(2).
5
 Although the Board’s opinion acknowledged Claimant’s failure to raise any issue regarding the
use of the Sixth Edition AMA Guides in her appeal, it also stated:
        However, we note that questions involving the validity of a statute may be raised
        for the first time on appeal to the Commonwealth Court as per Section 703 of the
        Administrative Agency Law, 2 Pa. C.S. §703, and Pa. R.A.P. 1551(a)(1).
Board Adjudication, 1/8/2016, at 3 n.1; R.R. 57a.


                                               7
                       3. Questions which the court is satisfied that the
                       petitioner could not by the exercise of due
                       diligence have raised before the government unit.
                       If, upon hearing before the court, the court is
                       satisfied that any such additional question within
                       the scope of this paragraph should be so raised, it
                       shall remand the record to the government unit for
                       further consideration of the additional question.

Pa. R.A.P. 1551. In addition, Section 703 of the Administrative Agency Law
provides:

               (a) General rule.—A party who proceeded before a
               Commonwealth agency under the terms of a particular statute
               shall not be precluded from questioning the validity of the
               statute in the appeal, but such party may not raise upon appeal
               any other question not raised before the agency
               (notwithstanding the fact that the agency may not be competent
               to resolve such question) unless allowed by the court upon due
               cause shown.

2 Pa. C.S. §703(a).
               Because this matter began before Protz was decided, this appeal
presents an issue concerning the validity of a statute that Claimant raised at the
first opportunity.6 Under Section 703 of the Administrative Agency Law and Pa.
R.A.P. 1551(a), Claimant was permitted to raise the issue of the improper use of
the Sixth Edition AMA Guides for the first time on appeal. See Mazuruk v.

6
  The WCJ’s decision was issued on May 2, 2014. On May 16, 2014, Claimant appealed to the
Board. Protz was decided on September 18, 2015. Claimant raised the constitutionality of her
IRE in a supplemental brief to the Board on December 7, 2015, less than three months after this
Court’s decision in Protz. Although the Board did not consider this issue properly raised and
therefore did not address it in its opinion issued January 8, 2016, we hold Claimant raised the
Protz issue at the first opportunity, in her supplemental brief. As the issue was raised at the first
opportunity and in Claimant’s petition for review filed with this Court, it is not waived. Petition
for Review, 1/29/2016, at 3-4.


                                                 8
Workers’ Compensation Appeal Board (Gillin & Sons Contracting, Inc.), (Pa.
Cmwlth., No. 1216 C.D. 2015, filed October 14, 2016) (applying Protz even
though it was decided after the Board’s decision and the claimant’s petition for
review); Ruse v. Workers’ Compensation Appeal Board (Valley Medical Facilities
Swickley), (Pa. Cmwlth., No. 952 C.D. 2014, filed January 13, 2016); Beasley v.
Workers’ Compensation Appeal Board (PECO Energy Company), __ A.3d __ (Pa.
Cmwlth., No. 634 C.D. 2016, filed December 22, 2016).
              Accordingly, the Board’s order is vacated, and this matter is remanded
to the WCJ to allow Dr. Schnall to determine whether the difference between the
Fourth and Sixth Editions of the AMA Guides would have materially impacted his
impairment rating of Claimant. If Dr. Schnall determines the changes in the Fourth
and Sixth Editions were irrelevant to his opinion that Claimant had a full body
impairment of 39%, he must explain that determination in an amended report. If
the edition revision materially affected Dr. Schnall’s impairment rating of
Claimant, then Employer may request a new IRE in accordance with the
methodology contained in the Fourth Edition of the AMA Guides.7

                                       ______________________________________
                                       MARY HANNAH LEAVITT, President Judge




7
 Given our disposition of this action, Claimant’s and Employer’s remaining issues are rendered
moot.


                                              9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Teresa Naughton,                         :
                   Petitioner            :
                                         :
            v.                           :   No. 130 C.D. 2016
                                         :
Workers’ Compensation Appeal             :
Board (Lansdale Catholic High            :
School),                                 :
                 Respondent              :

Lansdale Catholic High School,           :
                  Petitioner             :
                                         :
            v.                           :   No. 193 C.D. 2016
                                         :
Workers’ Compensation Appeal             :
Board (Naughton),                        :
                  Respondent             :


                                   ORDER

            AND NOW, this 18th day of January, 2017, the order of the Workers’
Compensation Appeal Board dated January 8, 2016, in the above-captioned matter
is VACATED and the case is REMANDED for further proceedings in accordance
with the attached opinion.
            Jurisdiction relinquished.

                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
