           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Craig A. Bradosky,                       :
                         Petitioner      :
                                         :
                   v.                    :   No. 1567 C.D. 2015
                                         :   Submitted: December 8, 2017
Workers’ Compensation Appeal             :
Board (Omnova Solutions, Inc.),          :
                      Respondent         :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                         FILED: February 2, 2018


      Craig A. Bradosky (Claimant) petitions for review of an Order of the
Workers’ Compensation Appeal Board (Board), dated July 28, 2015, which affirmed
a Decision and Order by a Workers’ Compensation Judge (WCJ) modifying his
benefits. Because the modification was based upon an impairment rating evaluation
(IRE) using the Sixth Edition of the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (AMA Guides), the IRE is invalid under Protz
v. Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d
827 (Pa. 2017). Accordingly, we reverse.
      The relevant facts of this case are not in dispute. Claimant strained his left
calf while in the course of his employment with Omnova Solutions, Inc. (Employer)
on July 18, 2006. Employer issued a Notice of Compensation Payable accepting the
injury and began paying benefits.            Benefits were modified in 2006 but were
ultimately reinstated in 2010 pursuant to a stipulation by the parties that was
memorialized in a decision by a WCJ.
       On March 15, 2012, Employer filed a Modification Petition alleging that
Claimant’s status should be changed from total disability to partial disability as of
February 1, 2012.1 The basis for the Modification Petition was an IRE performed
by Dr. Milton Klein, who calculated Claimant’s whole body impairment rating to be
five percent. The IRE was performed using the Sixth Edition of the AMA Guides.
In his answer to the Modification Petition, Claimant denied the allegations and also
challenged the constitutionality of the IRE process.
       Based upon the IRE, the WCJ granted Employer’s Modification Petition
changing Claimant’s status from total disability to partial disability effective
February 1, 2012. In her Decision, the WCJ noted Claimant’s continued objection
to the constitutionality of IREs but found she did not have authority to rule on
constitutional issues. The WCJ appended to her February 15, 2013 Decision a prior
decision and order she issued on December 15, 2011, ordering Claimant to appear
for the IRE. Claimant had refused to attend the IRE on a number of bases, including,
inter alia, that the IRE provisions “are unconstitutional as a private entity, [the
AMA,] not the Pennsylvania Legislature, set the disability eligibility standards under
the Act.” (WCJ Decision, Dec. 15, 2011, Finding of Fact (FOF) ¶ 4(a).) There, the



       1
          On July 8, 2011, Employer also filed petitions to terminate or suspend benefits, alleging
Claimant fully recovered or sufficiently recovered from his work injury such that he was able to
return to work without restrictions as of June 20, 2011. The WCJ denied and dismissed those
petitions. Employer initially appealed from the WCJ decision but withdrew the appeal to the
Board. Therefore, the petitions to terminate or suspend benefits are not before us.


                                                2
WCJ similarly found she could not address the constitutional challenges to IREs and
overruled Claimant’s objections but expressly noted them for purposes of appeal.
       Claimant appealed to the Board, which affirmed. The Board likewise noted
Claimant’s argument “that the IRE process is constitutionally defective because it
impermissibly delegates power to the AMA where the [Workers’ Compensation]
Act[2] is effectively amended with each new edition of the AMA Guides.” (Bd. Op.
at 6 n.4.) However, it, too, found that its “scope of review does not include review
of constitutional questions.” (Id. (citing Ligonier Tavern, Inc. v. Workmen’s Comp.
Appeal Bd. (Walker), 714 A.2d 1008, 1009 n.7 (Pa. 1998)).) Therefore, it refused to
address Claimant’s constitutional claims.
       On August 26, 2015, Claimant filed his Petition for Review (Petition). In his
Petition, Claimant stated:

       The Workers’ Compensation Appeal Board was not able to address the
       fact that the Pennsylvania Legislature, pursuant to Section 306(a.2)(1)
       of the Workers’ Compensation Act, has created a constitutionally
       flawed methodology to measure the percentage of impairment of a
       permanently disabled worker.

       Therefore, [Claimant] raise[s] the following arguments before this
       Honorable Court:

       A.  THE IRE METHODOLOGY OF SECTION 306(a.2)(1)[3] OF
       THE WORKERS’ COMPENSATION ACT IS AN IMPERMISSIBLE

       2
         Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
       3
         Added by Section 4 of the Act of June 24, 1996, P.L. 350, 77 P.S. § 511.2(1). Section
306(a.2)(1) provides:

       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



                                               3
       DELEGATION OF THE GENERAL ASSEMBLY’S LAW MAKING
       POWER TO THE AMA: EACH TIME THAT THE AMA ISSUES A
       NEW EDITION OF THE GUIDES, THE WORKERS’
       COMPENSATION ACT IS AMENDED[;]

       B.   DELEGATING   LEGISLATIVE  AUTHORITY   AND
       RULEMAKING TO A PRIVATE BODY, SUCH AS THE AMA,
       ABROGATES THE GENERAL ASSEMBLY’S LEGISLATIVE
       AUTHORITY AND VIOLATES THE FUNDAMENTAL PRECEPTS
       OF A DEMOCRACY[; AND]

       C.   THE PREVAILING CASE LAW OF PENNSYLVANIA’S
       SISTER STATES PROVIDES ADDITIONAL INSIGHT INTO THE
       TREATMENT OF “THE MOST RECENT EDITION” OF THE
       [AMA] GUIDES[.]

(Petition ¶ 5.) Claimant noted that the issues raised in his appeal were currently
pending in other cases before this Court, including Protz v. Worker’s Compensation
Appeal Board (Derry Area School District) (Pa. Cmwlth., No. 1024 C.D. 2014),
which had been argued before the Court en banc on April 15, 2015. This Court
issued its opinion reversing the Board in Protz on September 18, 2015, finding that
Section 306(a.2) violated the Constitution by delegating the authority to make law
to the AMA. Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 124 A.3d
406, 412 (Pa. Cmwlth. 2015). A petition for allowance of appeal to the Pennsylvania
Supreme Court was filed in Protz on October 16, 2015. While that petition was
pending, Employer filed its Unopposed Motion to Stay, seeking an order staying this

       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.”

77 P.S. § 511.2(1).


                                               4
action “until the Pennsylvania Supreme Court issues a ruling on the identical issue
in” Protz. (Employer’s Unopposed Motion to Stay at 1.) Employer averred that “[a]
final determination [in Protz] will establish the applicable law regarding whether the
IRE methodology of Section 306(a.2)(1) of the Workers’ Compensation Act is
constitutional.” (Id. ¶ 5.) By Order dated December 9, 2015, the Court granted the
motion, and the stay was renewed a number of times thereafter.
      On June 20, 2017, the Pennsylvania Supreme Court issued its opinion in
Protz. The Supreme Court found that Section 306(a.2) of the Act violates Article II,
Section 1 of the Constitution, which provides that all legislative power “shall be
vested in a General Assembly, which shall consist of a Senate and a House of
Representatives,” Pa. Const. art. II, § 1, because it delegates this authority to the
AMA by allowing it to use the most recent version of the AMA Guides. Protz, 161
A.3d at 838. The Supreme Court explained the problems with AMA’s “unbridled”
authority:

      The General Assembly did not favor any particular policies relative to
      the Guides’ methodology for grading impairments, nor did it prescribe
      any standards to guide and restrain the AMA’s discretion to create such
      a methodology. Without any parameters cabining its authority, the
      AMA would be free to: (1) concoct a formula that yields impairment
      ratings which are so inflated that virtually every claimant would be
      deemed to be at least 50% impaired; or (2) draft a version of the Guides
      guaranteed to yield impairment ratings so miniscule that almost no one
      who undergoes an IRE clears the 50% threshold; or (3) do anything in
      between those two extremes. The AMA could add new chapters to the
      Guides, or it could remove existing ones. It could even create distinct
      criteria to be applied only to claimants of a particular race, gender, or
      nationality.

      Consider also that the AMA could revise the Guides once every ten
      years or once every ten weeks. If the AMA chooses to publish new
      editions infrequently, Pennsylvania law may fail to account for recent


                                          5
      medical advances. By contrast, excessive revisions would likely pose
      severe administrative headaches, inasmuch as the Guides automatically
      have the force and effect of law once published. As these hypotheticals
      illustrate, the General Assembly gave the AMA de facto, unfettered
      control over a formula that ultimately will determine whether a
      claimant’s partial-disability benefits will cease after 500 weeks.

      Equally problematic, the General Assembly did not include in Section
      306(a.2) any of the procedural mechanisms that this Court has
      considered essential to protect against “administrative arbitrariness and
      caprice.” The General Assembly did not, for example, require that the
      AMA hold hearings, accept public comments, or explain the grounds
      for its methodology in a reasoned opinion, which then could be subject
      to judicial review. Further, the AMA physicians who author the Guides
      are, of course, not public employees who may be subject to discipline
      or removal.

Id. at 835-36 (footnotes and citations omitted).
      The Supreme Court struck down Section 306(a.2) in its entirety, finding it
could not be severed from the Act. Id. at 841 (citing 1 Pa. C.S. § 1925 (“[P]rovisions
of every statute shall be severable . . . unless the court finds that the valid provisions
of the statute are so essentially and inseparably connected with, and so depend upon,
the void provision or application, that it cannot be presumed the General Assembly
would have enacted the remaining valid provisions without the void one.”)).
      Shortly after the Supreme Court’s decision in Protz, this Court lifted the stay
in the instant matter, and Claimant filed an Application for Summary Relief,
asserting Protz controls and asking the Court to reverse the decision of the Board
and WCJ and reinstate Claimant to total disability benefits. Employer filed an
answer, asserting for the first time that Claimant did not preserve his constitutional
challenge and, therefore, waived the issue on appeal. By Order dated August 21,
2017, this Court directed the Application for Summary Relief be addressed with the
merits of the Petition.


                                            6
       On appeal,4 Claimant raised one issue: whether the holding in Protz applies
to the instant case, which was pending when Protz was decided. Employer contends
the issue is waived because it was not raised in the Petition, citing Winchilla v.
Workers’ Compensation Appeal Board (Nexstar Broadcasting), 126 A.3d 364 (Pa.
Cmwlth. 2015), or, alternatively, seeks a remand to determine whether modification
of Claimant’s benefits is proper under some other mechanism, citing Kachinski v.
Workmen’s Compensation Appeal Board (Vepco Construction Company), 532 A.2d
374 (Pa. 1987). Claimant responds that the Protz issue has been raised at each and
every level of review and that Employer’s assertions to the contrary make its contest
unreasonable.
       A review of the record clearly shows that Claimant has challenged the
constitutionality of IREs throughout this litigation. Claimant first asserted that the
IRE provision was unconstitutional when he refused to attend the IRE and had to be
ordered by the WCJ to attend. The WCJ in that order, as well as in her more recent
Decision, noted Claimant’s challenge to the constitutionality of Section 306(a.2), but
explained that she had no authority to adjudicate constitutional issues. The Board
likewise found itself handcuffed when Claimant raised the constitutional issue
before it. In his Petition, Claimant again asserted the issue that Section 306(a.2)
failed to pass constitutional muster.
       Employer maintains that Claimant’s Petition is defective because it does not
comply with Rule 1513(d) of the Pennsylvania Rules of Appellate Procedure. The




       4
          Our “standard of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence.” Thompson v. Workers’ Comp. Appeal Bd. (Exelon Corp.),
168 A.3d 408, 412 n.3 (Pa. Cmwlth. 2017).


                                              7
version of Rule 1513(d) that was in effect at the time Claimant’s Petition was filed
provided, 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 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.

Former Pa.R.A.P. 1513(d).5
       Employer contends that the Petition does not reference the orders sought to be
reviewed, including the date the orders were entered, pursuant to Pa.R.A.P.
1513(d)(4), but Paragraph 2 of the Petition states that “Petitioner is appealing from
the decision of the [Board] dated July 28, 2015.” (Petition ¶ 2.) Employer also
argues that the Petition does not set forth a short statement of the relief sought,
pursuant to Pa.R.A.P. 1513(d)(6); however, the Wherefore Clause states that the
“Petitioner prays [that this Court] grant the Petition for Review, reverse the decision
of the [Board], and grant such other relief as may be justified under the
circumstances.”       (Petition, Wherefore Clause.)            Finally, Employer asserts the
       5
          In December 2014, the rule was amended to modify, inter alia, subpart (5), which now
reads: “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.” Pa.R.A.P. 1513(d)(5). In its official note, the
amendment was explained as an attempt “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.” Pa.R.A.P. 1513, Official
Note 2014.


                                                 8
Petition does not include a general statement of objections, pursuant to Pa.R.A.P.
1513(d)(5) and cites this Court’s decision in Winchilla for support.            Unlike
Winchilla, wherein the claimant only generally asserted that the “IRE provisions . . .
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,” 126 A.3d at 367 (quoting
claimant’s petition for review ¶ 8), Claimant here expressly asserts in his Petition
that Section 306(a.2)(1) “is an impermissible delegation of the General Assembly’s
law making power to the AMA.” (Petition ¶ 5.) Although Claimant does not identify
Article II, Section 1 of the Pennsylvania Constitution by name, this does not mean
that Claimant did not properly preserve the issue. What is perhaps most puzzling
about Employer’s current position is its about-face from the very position it asserted
in its Unopposed Motion for Stay, wherein it recognized that disposition of Protz
would control this case. In short, we reject Employer’s arguments that the Petition
does not comply with the rules and that the issue concerning the constitutionality of
the IRE provision is waived.
      That brings us to the merits of Claimant’s arguments. Because this issue is
controlled by Protz, we need not devote a great deal of discussion to it now. Suffice
it to say that the Pennsylvania Supreme Court has declared Section 306(a.2) to be an
unconstitutional delegation of legislative power and struck the provision in its
entirety. As a result, we are compelled to reverse the Opinion and Order of the
Board, as we did under a similar factual scenario in Thompson v. Workers’
Compensation Appeal Board (Exelon Corporation), 168 A.3d 408, 412-13 (Pa.
Cmwlth. 2017).



                                           9
       In an effort to avoid reversal, Employer argues in the alternative that
modification of Claimant’s benefits is still appropriate under Kachinski. Under
Kachinski, the Supreme Court set forth the following procedure for modification
petitions:

       1. The employer who seeks to modify a claimant’s benefits on the basis
          that he has recovered some or all of his ability must first produce
          medical evidence of a change in condition.

       2. The employer must then produce evidence of a referral (or referrals)
          to a then open job (or jobs), which fits in the occupational category
          for which the claimant has been given medical clearance, e.g., light
          work, sedentary work, etc.

       3. The claimant must then demonstrate that he has in good faith
          followed through on the job referral(s).

       4. If the referral fails to result in a job then claimant’s benefits should
          continue.

532 A.2d at 380.
       Claimant argues, in response, that Employer failed to preserve this issue by
not filing a cross-petition for review and, even if the issue was properly before the
Court, the record is devoid of any evidence to support its application here. We agree
with both arguments. First, the only basis asserted by Employer in its Modification
Petition was the IRE. Employer never asserted an alternative basis to modify
Claimant’s benefits until now, after Protz was decided, dashing any hope it had of
success on the merits. Second, as Claimant points out, the record was not developed
with Kachinski in mind, and therefore, there is no evidence of record upon which to
evaluate it.
       Finally, Petitioner asserts that although Employer’s contest was once
reasonable, it has since turned unreasonable.         Specifically, he contends that


                                           10
Employer’s opposition to his Application for Summary Relief is unreasonable,
particularly in light of the Supreme Court’s holding in Protz. Claimant further cites
Employer’s conduct in denying Protz controlled, especially after Employer itself
sought a stay of this action pending resolution of Protz, which Employer then viewed
as dispositive. The unreasonableness of Employer’s contest was compounded, in
Claimant’s view, by its inaccurate representations that Claimant failed to comply
with the rules. It seeks a remand to the WCJ to consider the imposition of counsel
fees. Given the state of the record, we agree that there is a question about the
reasonableness of Employer’s contest. Therefore, we will remand the matter for
consideration of reasonable counsel fees.
      For the foregoing reasons, the Board’s Opinion and Order modifying
Claimant’s benefits from full disability to partial disability is reversed and the matter
is remanded for a determination related to the reasonableness of Employer’s contest.



                                         _____________________________________
                                         RENÉE COHN JUBELIRER, Judge




                                           11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Craig A. Bradosky,                       :
                         Petitioner      :
                                         :
                   v.                    :   No. 1567 C.D. 2015
                                         :
Workers’ Compensation Appeal             :
Board (Omnova Solutions, Inc.),          :
                      Respondent         :


                                      ORDER


      NOW, February 2, 2018, Petitioner Craig A. Bradosky’s Application for
Summary Relief is GRANTED. The Order of Workers’ Compensation Appeal
Board, dated July 28, 2015, is REVERSED, and the above-captioned matter is
remanded for a determination regarding the reasonableness of Respondent Omnova
Solutions, Inc.’s contest, following the Supreme Court’s decision in Protz v.
Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827
(Pa. 2017).
      Jurisdiction relinquished.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
