           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania,             :
                     Petitioner           :
                                          :
                   v.                     :   No. 1395 C.D. 2017
                                          :   Submitted: September 13, 2018
Workers’ Compensation Appeal              :
Board (Moore),                            :
                      Respondent          :



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE ELLEN CEISLER, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                          FILED: October 11, 2018


      The Commonwealth of Pennsylvania (Employer) seeks review of an Order of
the Workers’ Compensation Appeal Board (Board), which based upon the Supreme
Court’s holding in Protz v. Workers’ Compensation Appeal Board (Derry Area
School District), 161 A.3d 827 (Pa. 2017) (Protz II), reversed a decision issued by a
Workers’ Compensation Judge (WCJ). The WCJ had granted a Modification
Petition filed by Employer seeking to modify Katherine Moore’s (Claimant) status
from total to partial disability based upon an impairment rating evaluation (IRE)
performed using the Fourth Edition of the American Medical Association’s (AMA)
Guides to the Evaluation of Permanent Impairment (Guides). While the appeal was
pending before the Board, the Supreme Court issued its decision in Protz II. Citing
Protz II, the Board reversed the WCJ Decision and reinstated Claimant’s total
disability status as of the date of the IRE. Because this matter is controlled by our
recent decision in Dana Holding Corporation v. Workers’ Compensation Appeal
Board (Smuck), __ A.3d __, (Pa. Cmwlth., No. 1869 C.D. 2017, filed Oct. 11, 2018)
(en banc),1 we affirm.
       The relevant facts of this case are not in dispute. Claimant suffered a work
injury on August 27, 2013, which Employer acknowledged through the issuance of
a Notice of Compensation Payable, describing the injury as a fracture to her left tibia
and fibula.     After receiving 104 weeks of temporary total disability benefits,
Employer requested Claimant submit to an IRE pursuant to Section 306(a.2)(1) of
the Workers’ Compensation Act2 (WC Act). Employer submitted a request for

       1
         This matter was scheduled to be argued on the same date as Dana Holding, but was
submitted on briefs after Claimant’s counsel requested a continuance.
       2
         Act of June 2, 1915, P.L. 736, as amended, added by Section 4 of the Act of June 24,
1996, P.L. 350, 77 P.S. § 511.2(1), invalidated by Protz II. Section 306(a.2)(1) provided:

       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 [AMA Guides].

77 P.S. § 511.2(1).


                                               2
designation of a physician to perform the IRE on August 31, 2015. On September
10, 2015, the Pennsylvania Department of Labor & Industry, Bureau of Workers’
Compensation, issued a Notice designating Janak Doshi, M.D., as the IRE physician.
      Eight days later, this Court issued its decision in Protz v. Workers’
Compensation Appeal Board (Derry Area School District), 124 A.3d 406, 417 (Pa.
Cmwlth. 2015) (Protz I), wherein we declared portions of Section 306(a.2) of the
WC Act, which governed IREs, unconstitutional. Specifically, we held that the
language in Section 306(a.2) – that IREs were to be performed using “the most recent
edition of the [AMA Guides]” – was an unconstitutional delegation of legislative
powers “insofar as it purport[ed] to adopt a new version of the . . . Guides” without
legislative review or oversight. Protz I, 124 A.3d at 417. Because the Fourth Edition
of the Guides was in effect at the time Section 306(a.2) was enacted, we vacated the
Board’s decision and remanded the matter for an IRE using that edition. Id.
      In accordance with Protz I, the IRE physician here completed the necessary
training to perform IREs using the Fourth Edition of the Guides on October 18, 2015,
and evaluated Claimant on November 13, 2015. Based upon his evaluation, Dr.
Doshi opined Claimant reached maximum medical improvement and had a whole
person impairment rating of 15 percent.         Employer, citing the IRE, filed its
Modification Petition on December 23, 2015, seeking to modify Claimant’s
disability status from total to partial disability. Claimant denied the allegations, and
the matter was assigned to a WCJ.
      In support of its Modification Petition, Employer submitted the deposition
testimony of Dr. Doshi. Claimant objected to Dr. Doshi’s testimony on the ground
that the doctor was not qualified to conduct IREs under the Fourth Edition of the
Guides. The WCJ overruled the objection after Employer submitted proof of the



                                           3
physician’s completion of training. Claimant did not testify and presented no
medical evidence on her own behalf.
       The WCJ accepted Dr. Doshi’s testimony as credible. Because Dr. Doshi
opined that Claimant’s whole body impairment was less than 50 percent, pursuant
to Section 306(a.2)(2) of the WC Act,3 the WCJ granted Employer’s Modification
Petition and modified Claimant’s disability status from temporary total to partial,
effective the date of the IRE.
       Claimant filed a timely appeal with the Board, wherein she continued to
challenge Dr. Doshi’s qualifications to perform the IRE. She also argued that
“assuming Dr. Doshi was qualified to perform an IRE under the 4th Edition of the
AMA Guides, given the obvious impact of [Protz I], which is presently pending
before the Supreme Court of Pennsylvania, no decision on this matter should have
been issued until the Supreme Court issues its decision.” (Reproduced Record
(R.R.) at 23a-24a.)
       While the appeal was pending before the Board, Protz II was decided. The
Supreme Court affirmed this Court’s determination that Section 306(a.2) was an
unconstitutional delegation of legislative authority; however, unlike this Court, it
found the offending language was not severable from the rest of the WC Act.
Protz II, 161 A.3d at 841. Accordingly, it struck Section 306(a.2) from the WC Act
in its entirety. Id.
       Citing the Supreme Court’s decision in Protz II, the Board issued its Opinion
and Order on September 6, 2017, reversing the WCJ’s Decision and Order.

       3
         Section 306(a.2)(2) provided that a claimant “shall be presumed to be totally disabled” if
an IRE showed an impairment rating equal to or greater than 50 percent. 77 P.S. § 511.2(2),
invalidated by Protz II. If an impairment rating was less than 50 percent, the claimant was
considered partially disabled. Id.



                                                4
       Employer filed a timely Petition for Review of the Board’s Order,4 raising
three issues: (1) whether Claimant waived arguing that Protz II should be applied
retroactively because she did not timely raise a constitutional challenge;
(2) whether, alternatively, the Board erred in applying Protz II retroactively; and
(3) whether retroactive application of Protz II violates Employer’s constitutional
right to the “due course of law” under the Remedies Clause of Article I, Section 11
of the Pennsylvania Constitution.5
       In our recent decision in Dana Holding, we addressed and rejected these same
arguments. In Dana Holding, the claimant underwent an IRE using the Sixth Edition
of the Guides, but following Protz I, a new IRE was performed using the Fourth
Edition of the Guides. The WCJ granted the employer’s modification petition based
upon this IRE. While on appeal to the Board, Protz II was decided. Citing Protz II,
the Board reversed the WCJ’s decision. The employer appealed, making the same
arguments as Employer here. There, we held that, pursuant to Section 703(a) of the
Administrative Agency Law, 2 Pa. C.S. § 703(a),6 and Rule 1551(a)(1) of 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).
        5
          Article I, Section 11 of the Pennsylvania Constitution provides:

       All courts shall be open; and every man for an injury done him in his lands,
       goods, person or reputation shall have remedy by due course of law, and right
       and justice administered without sale, denial or delay. Suits may be brought against
       the Commonwealth in such manner, in such courts and in such cases as the
       Legislature may by law direct.

Pa. Const. art. I, § 11 (emphasis added).
       6
         Section 703(a) of the Administrative Agency Law provides, in pertinent part, “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.” 2 Pa. C.S. § 703(a).



                                                5
Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1551(a)(1), 7 the
constitutionality of a statute does not need to be raised before the administrative
agency in order to preserve the issue on appeal. Dana Holding, __ A.3d at __, slip
op. at 14-15. We further held that Protz II should apply to cases, such as this, where
the IRE was not final because it was still being challenged on appeal. Id., __ A.3d
at __, slip op. at 8-11. Finally, we held the due course of law protected only vested
rights, and because the IRE was not final, the employer had no vested right. Id., __
A.3d at __, slip op. at 12-13.
       Because this matter is controlled by our holding in Dana Holding, we affirm
the Board’s Order.




                                            _____________________________________
                                            RENÉE COHN JUBELIRER, Judge




       7
          Rule 1551(a)(1) provides, “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.” Pa.R.A.P. 1551(a)(1).


                                               6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania,        :
                     Petitioner      :
                                     :
                 v.                  :   No. 1395 C.D. 2017
                                     :
Workers’ Compensation Appeal         :
Board (Moore),                       :
                      Respondent     :


                                  ORDER


     NOW, October 11, 2018, the Order of the Workers’ Compensation Appeal
Board, dated September 6, 2017, is AFFIRMED.




                                   _____________________________________
                                   RENÉE COHN JUBELIRER, Judge
