          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Winchilla,                        :
                    Petitioner           :
                                         :
             v.                          :
                                         :
Workers’ Compensation Appeal             :
Board (Nexstar Broadcasting),            : No. 213 C.D. 2014
                  Respondent             : Argued: April 15, 2015


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE BERNARD L. McGINLEY, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE MARY HANNAH LEAVITT, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ANNE E. COVEY, Judge



OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI1                             FILED: September 18, 2015


             Robert Winchilla (Claimant) petitions for review of the order of the
Workers’ Compensation Appeal Board (Board) affirming the decision of the
Workers’ Compensation Judge (WCJ) which granted Nexstar Broadcasting’s
(Employer) petition to modify Claimant’s benefits (modification petition) from



      1
        This case was argued seriately with Protz v. Workers’ Compensation Appeal Board
(Derry Area School District) (Pa. Cmwlth., No. 1024 C.D. 2014, filed September 18, 2015).
total to partial disability under Section 306(a.2) of the Workers’ Compensation Act
(Act).2 For the reasons that follow, we affirm.


              The following facts are not in dispute. In August 2002, Claimant
sustained a work injury to his lower back, which Employer acknowledged via
notice of compensation payable. Claimant returned to work until February 2005
when worsening pain rendered him unable to perform his job duties.
Subsequently, Claimant submitted to an impairment rating evaluation (IRE)
performed by John A. Kline, Jr., M.D., who provided a whole-body impairment
rating of five percent under the Sixth Edition of the American Medical
Association’s (AMA) Guides to the Evaluation of Permanent Impairment
(Guides).


              In September 2010, Employer filed a modification petition, seeking to
convert Claimant’s total disability benefits to partial disability benefits, thereby
reducing the amount of compensation that could be paid to 500 weeks. See Section
306(a.2)(7) of the Act, 77 P.S. §511.2(7) (“In no event shall the total number of
weeks of partial disability exceed five hundred weeks for any injury or recurrence
thereof, regardless of the changes in status in disability that may occur….”). In his
answer to the modification petition, Claimant contended that the Act’s “IRE
provisions are: as applied to Claimant and/or facially, unconstitutional, capricious,
arbitrary, not reasonably calculated, confiscatory, not to be used to assess disability



       2
        Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §511.2, added by the Act of June 24,
1996, P.L 350.



                                              2
in the workers’ compensation sense and extinguish rights.”                           (Answer to
Modification Petition, at 1.)


             A claimant is partially disabled if he or she has a total impairment
rating of less than fifty percent. See Section 306(a.2)(2) of the Act, 77 P.S.
§511.2(2). The impairment rating is determined pursuant to Section 306(a.2) of
the Act, providing that it shall be determined under “the most recent edition of the
American Medical Association ‘Guides to the Evaluation of Permanent
Impairment,’” which provides a percent of impairment for each particular injury.3

             3
                 Section 306(a.2) of the Act provides:

             (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 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
(Footnote continued on next page…)

                                                3
(continued…)

           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.

           (3) Unless otherwise adjudicated or agreed to based upon a
           determination of earning power under clause (b)(2), the amount of
           compensation shall not be affected as a result of the change in
           disability status and shall remain the same. An insurer or employe
           may, at any time prior to or during the five hundred-week period of
           partial disability, show that the employe’s earning power has
           changed.

           (4) An employe may appeal the change to partial disability at any
           time during the five hundred-week period of partial disability;
           Provided, That there is a determination that the employe meets the
           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.”

           (5) Total disability shall continue until it is adjudicated or agreed
           under clause (b) that total disability has ceased or the employe’s
           condition improves to an impairment rating that is less than fifty
           per centum of the degree of impairment defined under the most
           recent edition of the American Medical Association “Guides to
           the Evaluation of Permanent Impairment.”

           (6) Upon request of the insurer, the employe shall submit to an
           independent medical examination in accordance with the
           provisions of section 314 to determine the status of impairment:
           Provided, however, That for purposes of this clause, the employe
           shall not be required to submit to more than two independent
           medical examinations under this clause during a twelve-month
           period.

           (7) In no event shall the total number of weeks of partial disability
           exceed five hundred weeks for any injury or recurrence thereof,
           regardless of the changes in status in disability that may occur. In
           no event shall the total number of weeks of total disability exceed
           one hundred four weeks for any employe who does not meet a
           threshold impairment rating that is equal to or greater than fifty per
(Footnote continued on next page…)

                                             4
              At hearings before the WCJ, Employer submitted a copy of Dr.
Kline’s IRE in support of its modification petition. Claimant did not submit any
medical evidence but instead relied on a decision of the Social Security
Administration (SSA) finding Claimant totally disabled from substantial gainful
employment based upon his back injury and hearing-loss impairment.


              Following the hearings, the WCJ granted Employer’s modification
petition, adopting Dr. Kline’s medical opinion regarding Claimant’s IRE as the
only medical evidence presented in the case and rejecting the SSA’s decision as
non-binding. The WCJ also dismissed Claimant’s constitutional challenge, finding
that Claimant presented no evidence to support this contention.


              Claimant appealed to the Board, challenging the constitutionality of
Section 306(a.2) of the Act, 77 P.S. §511.2, for the exact same reasons. The Board

(continued…)

              centum impairment under the most recent edition of the
              American Medical Association “Guides to the Evaluation of
              Permanent Impairment” for any injury or recurrence thereof.

              (8)(i) For purposes of this clause, the term “impairment” shall
              mean an anatomic or functional abnormality or loss that results
              from the compensable injury and is reasonably presumed to be
              permanent.

              (ii) For purposes of this clause, the term “impairment rating” shall
              mean the percentage of permanent impairment of the whole body
              resulting from the compensable injury. The percentage rating for
              impairment under this clause shall represent only that impairment
              that is the result of the compensable injury and not for any
              preexisting work-related or nonwork-related impairment.

77 P.S. §511.2 (emphasis added).



                                               5
affirmed the WCJ’s decision, noting that its scope of review does not permit it to
consider constitutional issues and therefore “reject[ed] Claimant’s request that [it]
consider the constitutionality of Section 306(a.2).” (1/16/14 Board Opinion, at 3.)
Nonetheless, the Board held that Section 306(a.2)’s IRE provisions do not violate
Claimant’s due process rights because an employer is required to provide a
claimant notice of its intent to modify a claimant’s benefits from total to partial,
and a claimant is given ample opportunity to be heard on the matter. This appeal
followed.4


              In his petition for review filed on February 18, 2014, Claimant
parroting his answer to Modification Petition, again contended that “the IRE
provisions [of the Act] as applied to [Claimant] and/or facially, are
unconstitutional, as they are capricious, arbitrary, not reasonably calculated,
confiscatory, not used to assess disability in the workers’ compensation sense,
improperly disregard evidence that [Claimant] was totally disabled and improperly
extinguish rights.” (Petition for Review ¶ 8.) He further asserted that Section
306(a.2) of the Act, 77 P.S. §511.2, is improperly used “to alter an injured
worker’s disability status for purposes of extinguishing entitlement to continued
benefits” in that “the bar is set so arbitrarily high, i.e. 50% whole body impairment
via the American Medical Association Guide to Permanent Impairment (AMA
Guides) that permanently disabled workers can not [sic] or can not [sic] reasonably
be expected to reach the safe haven.” (Id. ¶ 9.) Claimant suggested that evidence

       4
           We review Board decisions to determine whether errors of law were made,
constitutional rights were violated, and whether necessary findings of fact are supported by
substantial evidence. Ward v. Workers’ Compensation Appeal Board (City of Philadelphia), 966
A.2d 1159, 1162 n.4 (Pa. Cmwlth.), appeal denied, 982 A.2d 1229 (Pa. 2009).



                                             6
of disability other than IRE ratings should be used to present a more accurate
picture of claimants’ true disabilities. (Id.)


                 In his amended brief, Claimant argues that: (1) Section 306(a.2) of the
Act is an unconstitutional delegation of legislative authority to the AMA in
violation of Article II, Section 1 of the Pennsylvania Constitution5; (2) the Guides
were not designed to be used to determine whether a claimant is “disabled” for
purposes of the Act; and (3) Section 306(a.2) of the Act impinges on the WCJ’s
sole role in determining facts, credibility, and evidentiary weight.


                 At the outset, Employer argues that Claimant waived his right to
challenge Section 306(a.2) of the Act as an unconstitutional delegation because he
did not raise this argument in his petition for review. Although “[q]uestions
involving the validity of a statute” may be raised for the first time before this
Court, see Section 703 of the Administrative Agency Law, 2 Pa. C.S. §703, under
the version of Rule 1513(d) of the Pennsylvania Rules of Appellate Procedure in
effect at the time Claimant filed his petition for review,6 such issues were required

       5
          Article II, Section 1 states, “The legislative power of this Commonwealth shall be
vested in a General Assembly, which shall consist of a Senate and a House of Representatives.”
Pa. Const. art. II, § 1.

       6
           That version of the Rule stated, in pertinent part:

                 Content of appellate jurisdiction petition for review. An
                 appellate jurisdiction petition for review shall contain: (1) a
                 statement of the basis for the jurisdiction of the court; (2) the name
                 of the party or person seeking review; (3) the name of the
                 government unit that made the order or other determination sought
                 to be reviewed; (4) reference to the order or other determination
(Footnote continued on next page…)

                                                   7
to be asserted in the petition for review or were deemed waived. See Edwards v.
Unemployment Compensation Board of Review, 3 A.3d 690, 693 (Pa. Cmwlth.
2010); Smithfield Cafe v. Unemployment Compensation Board of Review, 660
A.2d 248, 248 (Pa. Cmwlth. 1995).


(continued…)

               sought to be reviewed, including the date the order or other
               determination was entered; (5) a general statement of the
               objections to the order or other determination; and (6) a short
               statement of the relief sought. A copy of the order or other
               determination to be reviewed shall be attached to the petition for
               review as an exhibit. The statement of objections will be deemed to
               include every subsidiary question fairly comprised therein. No
               notice to plead or verification is necessary.

Pa. R.A.P. 1513(d) (2014). A December 2, 2014 amendment to Rule 1513(d) modified the
language of subpart (5) to state, “a general statement of the objections to the order or other
determination, but the omission of an issue from the statement shall not be the basis for a finding
of waiver if the court is able to address the issue based on the certified record…” with the
changes going into effect thirty (30) days later. Pa. R.A.P. 1513(d) (2015) (emphasis added).

       The Official Note to Rule 1513 clarifies the amendment, stating:

                        The 2014 amendments to Pa. R.A.P. 1513(d) relating to the
               general statement of objections in an appellate jurisdiction petition
               for review are intended to preclude a finding of waiver if the court
               is able, based on the certified record, to address an issue not within
               the issues stated in the petition for review but included in the
               statement of questions involved and argued in a brief. The
               amendment neither expands the scope of issues that may be
               addressed in an appellate jurisdiction petition for review beyond
               those permitted in Pa. R.A.P. 1551(a) nor affects Pa. R.A.P. 2116’s
               requirement that “[n]o question will be considered unless it is
               stated in the statement of questions involved [in appellant’s brief]
               or is fairly suggested thereby.”

Pa. R.A.P. 1513, Official Note (2014).



                                                 8
               Because Claimant’s petition for review did not cite Article II, Section
1 of the Pennsylvania Constitution and more importantly, did not in any manner
assert that the IRE provisions of the Act unconstitutionally delegated legislative
authority to the AMA, but only asserted an unspecified constitutional claim,
alleging that Section 306(a.2) of the Act is arbitrary and capricious,7 Petitioner has
waived his unconstitutional delegation argument by failing to assert it in his
petition for review. Likewise, because Claimant did not assert the remaining
arguments addressed in his brief in his petition for review, they are also waived. 8


               Accordingly, we affirm the Board’s order granting Employer’s
modification petition.




                                                DAN PELLEGRINI, President Judge




       7
         Such a claim is not sufficient to put Employer on notice that it would need to defend
against a claim arising under Article II, Section 1 of the Pennsylvania Constitution. Indeed, it
appears that the Board also failed to recognize the crux of Claimant’s undefined argument as its
opinion addressed the constitutionality of Section 306(a.2) of the Act pursuant to the due process
clause.

       8
         The fact that Claimant asserted these arguments in his brief is of no import. McGaffin
v. Workers’ Compensation Appeal Board (Manatron, Inc.), 903 A.2d 94, 102 (Pa. Cmwlth.
2006) (“[A]ny effort to address an issue in a brief that has not been properly raised in the appeal
documents is ‘unavailing.’” (internal citation omitted)).



                                                9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Robert Winchilla,                 :
                    Petitioner    :
                                  :
            v.                    :
                                  :
Workers’ Compensation Appeal      :
Board (Nexstar Broadcasting),     :
                  Respondent      : No. 213 C.D. 2014




                                 ORDER



            AND NOW, this 18th day of September, 2015, the order of the

Workers’ Compensation Appeal Board dated January 16, 2014, in the above-

captioned case is affirmed.




                                    DAN PELLEGRINI, President Judge
