             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dana Holding Corporation,                   :
                       Petitioner           :
                                            :
                     v.                     :   No. 1869 C.D. 2017
                                            :   Argued: September 13, 2018
Workers’ Compensation Appeal                :
Board (Smuck),                              :
                      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 BY
JUDGE COHN JUBELIRER                            FILED: October 11, 2018


         Dana Holding Corporation (Employer) petitions for review of an Order of the
Workers’ Compensation Appeal Board (Board), which reversed a decision by a
Workers’ Compensation Judge (WCJ) and reinstated David Smuck (Claimant) to
total disability status as of June 20, 2014, the date of his impairment rating evaluation
(IRE).     The WCJ had granted Employer’s Modification Petition, modifying
Claimant’s disability status from total to partial disability based upon an IRE
performed using the Fourth Edition of the American Medical Association’s (AMA)
Guides to the Evaluation of Permanent Impairment (Guides), which was, at the time
of the WCJ’s decision, still a valid means of modifying a claimant’s status under this
Court’s decision in Protz v. Workers’ Compensation Appeal Board (Derry Area
School District), 124 A.3d 406, 417 (Pa. Cmwlth. 2015) (Protz I). However, the
Pennsylvania Supreme Court subsequently declared the entirety of Section 306(a.2)
of the Workers’ Compensation Act1 (WC Act), which governed IREs,
unconstitutional. Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 161
A.3d 827, 840-41 (Pa. 2017) (Protz II). At issue in this appeal is whether Claimant
is entitled to the benefit of Protz II. Because Claimant’s appeal was pending before
the Board at the time of that decision, we conclude the Board properly applied the
law in effect at the time of its appellate review and, accordingly, affirm.
       The pertinent facts are not in dispute. Claimant suffered a work injury
described as an “upper back, disc protrusion @ T11-12” on April 6, 2000. (WCJ
Decision, Finding of Fact (FOF) ¶ 1.) Employer issued a Notice of Temporary
Compensation Payable, acknowledging the injury, which subsequently converted
into a Notice of Compensation Payable.
       On June 20, 2014, Claimant underwent an IRE that was performed by Lucian
P. Bednarz, M.D., who was appointed by the Bureau of Workers’ Compensation at
Employer’s request.         Dr. Bednarz opined that Claimant had a whole body
impairment rating2 of 11 percent under the Sixth Edition of the Guides.3 Based upon
this IRE, Employer filed its Modification Petition seeking to modify Claimant’s


       1
          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, invalidated by Protz v. Workers’ Comp. Appeal Bd. (Derry Area
Sch. Dist.), 161 A.3d 827, 840-41 (Pa. 2017) (Protz II).
        2
          “[I]mpairment rating” was defined as “the percentage of permanent impairment of the
whole body resulting from the compensable injury.” Section 306(a.2)(8)(ii) of the WC Act, 77
P.S. § 511.2(8)(ii), invalidated by Protz II. “[I]mpairment” was defined as “an anatomic or
functional abnormality or loss that results from the compensable injury and is reasonably presumed
to be permanent.” Section 306(a.2)(8)(i), 77 P.S. § 511.2(8)(i), invalidated by Protz II.
        3
          Under Section 306(a.2)(2), a claimant with an impairment rating equal to or greater than
50 percent was presumed to be totally disabled, whereas a claimant with an impairment rating less
than 50 percent was considered partially disabled. 77 P.S. § 511.2(2), invalidated by Protz II.


                                                2
disability status from total to partial as of the date of the IRE. Claimant challenged
the modification, alleging he had not reached maximum medical improvement, a
prerequisite to an IRE.
       Various hearings were held before the WCJ. After the record closed, but
before the WCJ issued his decision, this Court issued its decision in Protz I, wherein
we declared that certain IRE provisions found in Section 306(a.2) of the WC Act
were unconstitutional. Protz I, 124 A.3d at 417. Specifically, we declared the
portions of Section 306(a.2) that provided that a claimant’s impairment rating should
be determined “pursuant to the most recent edition of the [AMA Guides]” were an
unconstitutional delegation of legislative authority violative of Article II, Section 1
of the Pennsylvania Constitution.4 We reasoned that “the General Assembly . . .
failed to prescribe any intelligible standards to guide the AMA’s determination
regarding the methodology used in granting impairments.” Id. at 415. We further
explained that “Section 306(a.2) of the [WC] Act is wholly devoid of any
articulations of public policy governing the AMA in this regard and of adequate
standards to guide and restrain the AMA’s exercise of this delegated determination
by which physicians and WCJs are bound” and is devoid of any “mechanism
requiring governmental review of the Guides by the promulgation of regulations.”
Id. Having concluded that Section 306(a.2) was an unconstitutional delegation of
legislative power because “it proactively approved versions of the AMA Guides
beyond the Fourth Edition without review,” we vacated the Board’s decision and
remanded the matter to the Board with instruction to remand to the WCJ for an IRE



       4
         Article II, Section 1 of the Pennsylvania Constitution provides: “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.


                                               3
determination applying the Fourth Edition of the Guides, which was in effect at
the time Section 306(a.2) was enacted. Id. at 416.
       Because, in Protz I, we permitted IREs to be performed using the Fourth
Edition of the Guides, Employer here sought to reopen the record before the WCJ
and introduce a new IRE using that edition. Claimant objected to reopening the
record and instead requested the WCJ to dismiss Employer’s Modification Petition
based upon Protz I because the IRE used the Sixth Edition of the Guides. Instead,
the WCJ allowed the new IRE. Based upon his prior examination on June 20, 2014,
Dr. Bednarz found Claimant had a whole person impairment of 15 percent using the
Fourth Edition of the Guides.
       The WCJ found that the IRE performed using the Sixth Edition of the Guides
was invalid as a result of this Court’s decision in Protz I. (WCJ Decision at 8.)
However, based upon the results of the second IRE using the Fourth Edition of the
Guides, the WCJ granted Employer’s Modification Petition and modified
Claimant’s disability status from temporary total disability to partial disability,
effective June 20, 2014. (WCJ Order.)
       Claimant and Employer appealed to the Board. Claimant argued Dr. Bednarz
was not qualified to perform an IRE under the Fourth Edition of the Guides and that
the WCJ’s conclusion that Employer met its burden of proof was in error.
Meanwhile, Employer cross-appealed, arguing the WCJ erred in concluding Protz I
rendered the first IRE using the Sixth Edition of the Guides invalid.5 Employer
explained that it filed the cross-appeal because Protz I was appealed to the
Pennsylvania Supreme Court and it wanted:

       5
         Employer also argued the WCJ erred in awarding litigation costs to Claimant. The Board
ultimately affirmed that portion of the WCJ’s Decision. Employer has not further appealed from
that determination.


                                              4
         to preserve the issue concerning the validity of the finding that
         [C]laimant had a whole body impairment of less than 50% under the
         6th Edition of the AMA Guides in the event that the Supreme Court
         reverses Protz and concludes that the evaluation under the “most recent
         edition” of the Guides at the time of the evaluation is constitutional and
         the determination under the 4th Edition of the Guides is rendered moot.

(Employer’s Appeal, Record (R.) Item 9.) Employer requested the Board stay the
matter until the Supreme Court decided the appeal of Protz I, which the Board did.
         While the appeal was pending before the Board, the Pennsylvania Supreme
Court declared Section 306(a.2) of the WC Act unconstitutional in its entirety.
Protz II, 161 A.3d at 840-41. The Supreme Court agreed with this Court’s holding
in Protz I that Section 306(a.2) of the WC Act was an unconstitutional delegation of
legislative authority. Protz II, 161 A.3d at 838. However, the Supreme Court
disagreed that the offending language was severable from the rest of Section
306(a.2) and struck Section 306(a.2) in its entirety. Id. at 841. As a result, this
Court’s holding in Protz I that use of the Fourth Edition of the Guides was
permissible was overturned.
         After Protz II was decided, the Board considered this appeal, which had been
stayed. The Board concluded Protz II required reversal of the WCJ Decision
because the WCJ had relied upon the now-unconstitutional provisions of Section
306(a.2), including the use of the Fourth Edition of the Guides. It, therefore,
reversed the grant of the Modification Petition and reinstated Claimant to total
disability status as of June 20, 2014, the date of the disputed IRE. (Board Opinion
at 3.)




                                             5
       Employer now seeks review of the Board’s Order.6 Employer claims the
Board erred in retroactively applying Protz II to the instant action. Employer argues
that the Supreme Court gave no directive in Protz II as to its retroactive effect and
that the factors to be considered in applying a new rule of law retroactively weigh
against retroactivity. Employer particularly stresses the prejudice it claims it will
suffer if Protz II is held to invalidate past IREs, which have been relied upon by
Employer, as well as all other employers and insurers. As a result, Employer seeks
prospective application of Protz II or, in the alternative, application of Protz II only
as of the date of that decision and in cases where the issue has been properly raised
and preserved. In addition, Employer asserts retroactive application of Protz II
violates its constitutional right to the “due course of law” under the Remedies Clause
of Article I, Section 11 of the Pennsylvania Constitution. Finally, Employer argues
Claimant waived his ability to challenge the constitutionality of the IRE by not
raising it before either the WCJ or the Board.
       Claimant responds that he did, in fact, raise the applicability of the Protz
decisions throughout the litigation. Regardless, Claimant argues that a party can
challenge the validity of a statute for the first time on appeal, citing Section 703(a)
of the Administrative Agency Law, 2 Pa. C.S. § 703(a).7 Claimant asserts he is not
seeking full retroactive effect of Protz II; rather, he is merely asking this Court to
apply the general rule that the law in effect at the time of appellate review applies.
Claimant claims that Employer would not be prejudiced by such an application.

       6
          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
          Section 703(a) 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).


                                              6
Claimant further argues this case is analogous to Thompson v. Workers’
Compensation Appeal Board (Exelon Corporation), 168 A.3d 408 (Pa. Cmwlth.
2017), in which, based upon Protz II, we reversed the Board’s affirmance of a WCJ’s
decision modifying a claimant’s disability status from total to partial based on an
IRE, even though it had not been raised before the WCJ or Board.
      We begin with the threshold issue in this matter: whether the Supreme Court’s
decision in Protz II applies to appeals that were pending at the time it was decided.
There are four approaches in deciding what effect a decision announcing a new rule
of law should be given: (1) purely prospective, meaning the new rule does not even
apply to the parties in the case in which it was announced; (2) retroactive, but limited
to the case where the principle was announced; (3) retroactive to all cases pending
at the time it was announced; and (4) full retroactive effect, which applies even to
cases which are otherwise final. Blackwell v. State Ethics Comm’n, 589 A.2d 1094,
1098-99 (Pa. 1991). Employer argues for prospective application. Claimant, on the
other hand, argues not for fully retroactive effect, but instead for retroactive
application to all cases pending at the time Protz II was decided.
      As a general rule, the Pennsylvania Supreme Court has held that an appellate
court should “apply the law in effect at the time of appellate review.” Passarello v.
Grumbine, 87 A.3d 285, 307 (Pa. 2014); Blackwell, 589 A.2d at 1099. In other
words, “a party whose case is pending on direct appeal is entitled to the benefit of
changes in law which occur[] before the judgment becomes final.” Blackwell, 589
A.2d at 1099 (quotation omitted). However, the Supreme Court has cautioned
against applying this general rule “rotely.” Passarello, 87 A.3d at 307. Rather,
“[w]hether a judicial decision should apply retroactively is a matter of judicial
discretion to be decided on a case-by-case basis.” Id.



                                           7
       In considering whether a decision announcing a new rule of law is to be
applied retroactively, the court should consider: “(1) the purpose to be served by the
new rule, (2) the extent of the reliance on the old rule, and (3) the effect on the
administration of justice by the retroactive application of the new rule.” Blackwell,
589 A.2d at 1099 (citation omitted). The parties agree that the purpose of Protz II
“is to mandate conformity with the Pennsylvania Constitution.” (Employer’s Brief
(Br.) at 27; Claimant’s Br. at 5.)
       With regard to the second factor, Employer makes a broad argument that both
“[e]mployers and insurers have litigated or managed hundreds of thousands of
claims in reliance on the now-stricken statutory language” and “[m]any of these
claims went unchallenged, were considered final and have been closed.”
(Employer’s Br. at 27.) According to Employer, it has now lost the opportunity to
pursue other routes of changing Claimant’s disability status, such as offering him
another position or having a labor market study conducted, because of changes in
economic conditions and the passage of time, which has naturally aged Claimant.
At oral argument, Employer analogized retroactive application of Protz II to
changing the rules of play in the middle of the game, which Employer asserted was
fundamentally unfair.
       We are cognizant of Employer’s concerns, but find its argument, under the
facts of this case, unpersuasive.8 Here, the determination of Claimant’s disability
status was far from final. It was still being actively litigated when the Protz decisions
were handed down. Claimant underwent his IRE in June 2014. While Employer’s
Modification Petition based on the Sixth Edition of the Guides was pending before

       8
          Employer appears to urge for a broad, sweeping declaration by this Court. We, however,
limit our holding to the facts presently before us – cases where the validity of the underlying IRE
were still being litigated at the time Protz II was decided.


                                                8
the WCJ, this Court issued its decision in Protz I. As a result, Employer sought
permission from the WCJ to reopen the record and introduce a new IRE using the
Fourth Edition of the Guides, which, at the time, complied with our holding in Protz
I. Claimant objected to this request and asked the WCJ to dismiss Employer’s
Modification Petition based upon Protz I because the IRE used the Sixth Edition of
the Guides, but the WCJ allowed the new IRE. Based upon the results of that second
IRE, the WCJ modified Claimant’s disability status. Claimant and Employer both
appealed that decision, albeit for different reasons. Importantly, while that appeal
was pending, the Pennsylvania Supreme Court affirmed our decision that Section
306(a.2) of the WC Act was an unconstitutional delegation of legislative authority,
but overruled that decision to the extent we held that IREs performed under the
Fourth Edition of the Guides, which was the most recent edition in effect at the time
Section 306(a.2) was enacted, were still valid. The Supreme Court, instead, struck
the entirety of Section 306(a.2) from the WC Act. Because Employer’s Modification
Petition was still being actively challenged at the time Protz II was decided, we are
hard pressed to find Employer had any reasonable expectation in the finality of the
modification of Claimant’s disability status.
      An en banc panel of this Court recently rejected a similar argument that the
employer had an expectation of finality in a case with much stronger facts favoring
finality than those present here. In Whitfield v. Workers’ Compensation Appeal
Board (Tenet Health System Hahnemann LLC), 188 A.3d 599, 616 (Pa. Cmwlth.
2018), we held that claimants could seek reinstatement of total disability status based
on Protz II within 3 years of the date of the most recent payment of compensation,
even if they had already exhausted their 500 weeks of partial disability benefits. This




                                          9
was because the modifications of disability status were “not yet truly ‘final’ until
three years ha[d] passed since the date of last payment.” Id. at 617.
        Furthermore, Employer had other avenues available to it to modify Claimant’s
status but chose to utilize the IRE route because it was less expensive and more
efficient. Accordingly, it took a risk to pursue an IRE instead of some other
mechanism. To the extent it is now foreclosed from pursuing other options, the fault
does not lay with Claimant. It bears emphasis that the WC Act “is remedial in nature
and intended to benefit the [injured] worker.” Reifsnyder v. Workers’ Comp. Appeal
Bd. (Dana Corp.), 883 A.2d 537, 541 (Pa. 2005).
        For these reasons, the second factor weighs in favor of applying Protz II to
cases that were pending at the time Protz II was decided, such as the one presented
here.
        Concerning the third factor, the effect on the administration of justice by the
retroactive application of the new rule, Employer again argues against full
retroactive effect. It claims “if the Court was to impose full retroactivity of the Protz
II holding, the outcome would culminate in an overwhelming burden on the judicial
system,” including WCJs, the Board, and this Court. (Employer’s Br. at 28.)
Employer argues that resurrecting IREs reaching back to enactment of Section
306(a.2) in 1996 would “severely impact[]” the administration of justice, and the
best way to avert this result is through prospective application of Protz II. (Id.) We
appreciate that there have been many IREs since the procedure was codified in 1996.
We note that Claimant’s IRE in this case, however, did not occur two decades ago
but took place in June 2014 and was in active litigation at the time Protz I and
Protz II were decided. Thus, there had been no final adjudication here as to




                                           10
whether Claimant’s disability status should be modified from total to partial.9 We
examine each case before us, and in this case, the issue of the IRE process was
pending before the Board when Protz II was decided.
       For similar reasons, we reject Employer’s argument that we should apply
Protz II only from its decision date and not the date of the IRE. Employer argues
that it had a vested right and should, at a minimum, receive a credit for three years
of temporary disability from the date of the IRE on June 20, 2014, to the decision in
Protz II on June 20, 2017. These weeks, according to Employer, should be counted
towards Claimant’s limit of 500 weeks of partial disability compensation. Section
306(b)(1) of the WC Act, 77 P.S. § 512(1). Should Employer seek to use some other
statutory mechanism to change Claimant’s status to partial, Employer argues it
should be entitled to a credit for those weeks between the IRE and Protz II.
However, this approach does not take into consideration that the IRE determination
was never final. In fact, at oral argument, Employer recognized that if the IRE had
been overturned on the merits, it would not have been entitled to any credit for the
period of partial disability. Accordingly, the time period between the date of the
IRE and the decision in Protz II should not be counted against Claimant’s 500-week
period of partial disability.
       Having concluded that Protz II applies to cases where the underlying IRE was
actively being litigated when that decision was issued, we turn to Employer’s second
argument: it is entitled to the due course of law,10 which would be violated if Protz II


       9
          We reiterate that our holding is limited to cases, such as this, where the underlying IRE
was still being actively litigated when Protz II was issued. The extent to which Protz II may be
retroactively applied to another factual scenario is not currently before us.
        10
           “Due course of law” differs from due process. As the Supreme Court explained:




                                               11
is applied retroactively. This constitutional right is grounded in the Remedies Clause
in Article I, Section 11 of the Pennsylvania Constitution, which 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).
       Generally, the due course of law provision is invoked when a change in the
legislation attempts to alter or eliminate a vested or accrued cause of action.
Konidaris v. Portnoff Law Assocs., Ltd., 953 A.2d 1231, 1240 (Pa. 2008). However,
the principle also applies to protect a party’s vested or accrued absolute defense from
being extinguished. Ieropoli v. AC&S Corp., 842 A.2d 919, 927 (Pa. 2004); City of
Warren v. Workers’ Comp. Appeal Bd. (Haines), 156 A.3d 371, 379 (Pa. Cmwlth.),
petition for allowance of appeal denied, 170 A.3d 1039 (Pa. 2017). We explained:

       A legal exemption from liability on a particular demand, constituting a
       complete defense to an action brought, stands on quite as high ground
       as a right of action. If the law of the case at the time when it became
       complete is such an inherent element in it that a plaintiff may claim it
       as a vested right, on what possible ground can it be held that a defendant
       has no vested right with respect to an exemption or defense? The
       authorities make no distinction between them.




       The right to due process protects people against official deprivations of liberty or
       property by the state, except by “law of the land.” By contrast, the right to “due
       course of law” provides an independent guarantee of legal remedies for private
       wrongs by one person against another, through the state’s judicial system.

Konidaris v. Portnoff Law Assocs., Ltd., 953 A.2d 1231, 1240 (Pa. 2008) (quotation omitted).


                                               12
City of Warren, 156 A.3d at 379 (quoting Lewis v. Pa. R. Co., 69 A. 821, 823 (Pa.
1908)).
      Employer argues its right to utilize the IRE process to modify Claimant’s
benefits, which has been relied upon by employers and insurers for over 20 years as
a means of capping liability, cannot be limited by Protz II because to do so would
violate its right to the due course of law. There are two flaws with Employer’s
argument. First, the due course of law is limited in scope to protecting only vested
rights. Konidaris, 953 A.2d at 1242; Ieropoli, 842 A.2d at 927. A vested right is
“something more than a mere expectation, based upon an anticipated continuance of
existing law. It must have become a title, legal or equitable, to the present or future
enforcement of a demand, or a legal exemption from a demand made by another.”
Konidaris, 953 A.2d at 1242 (quotation omitted).             Contrary to Employer’s
assertions, Employer did not have a vested right.            As discussed above, its
Modification Petition was still being litigated. Therefore, it did not have “title, legal
or equitable,” to continued reliance on the IRE provisions. Id. At best, it had “a
mere expectation[] based upon an anticipated continuance of existing law.” Id. In
short, Employer had no reasonable expectation that the IRE would be upheld as
Claimant’s disability status was still being litigated.
      Second, it is not clear to what extent, if any, the Remedies Clause, in which
the due course of law protection is found, applies when a statute is declared
unconstitutional. Employer cites to no cases applying the Remedies Clause to a
statute that was declared unconstitutional, nor have we found one. Rather, the case
law appears limited to cases in which the General Assembly has acted either to
amend or repeal a statute, such as in Konidaris and Lewis, or to enact new legislation,
such as in Ieropoli and City of Warren, affecting one’s existing rights. The Supreme



                                           13
Court stated that the purpose of the Remedies Clause is protection from legislative
action and to ensure a vested right is not eliminated by subsequent legislation.
Konidaris, 953 A.2d at 1242; Ieropoli, 842 A.2d at 932. The dearth of case law
applying the Remedies Clause when a statute is declared unconstitutional makes
sense in that a party should not be able to claim that its constitutional right to the due
course of law is being violated and that it should be able to continue to benefit from
an unconstitutional law to the detriment of another party whose rights were affected
by that unconstitutional law. Accordingly, we are not persuaded by Employer’s
Remedies Clause argument.
      Finally, Employer argues that Claimant waived his right to challenge the
constitutionality of the IRE because he did not raise it before the WCJ or Board.
However, it clearly became an issue once Protz I was decided. Employer made it
an issue by seeking to reopen the record to introduce a new IRE that complied with
Protz I. Claimant objected to the request and instead requested the WCJ to dismiss
Employer’s Modification Petition based upon Protz I because the IRE used the Sixth
Edition of the Guides. The WCJ allowed the new IRE over Claimant’s objection
and expressly stated in his decision that Claimant’s objection, based on Protz I, was
preserved for purposes of appeal. In addition, in its cross-appeal to the Board,
Employer again raised Protz I as an issue and actually sought a stay pending the
Supreme Court’s decision in Protz II, which the Board apparently obliged in
granting. Surely Employer could not expect the Board to apply the Supreme Court’s
decision only if it was favorable to Employer and disregard it if it was not.
Furthermore, although the parties’ briefs to the Board are not part of the certified
record in this matter, in its brief to this Court, Employer quotes a portion of
Claimant’s brief to the Board wherein Claimant clearly argues that the Modification



                                           14
Petition “must be reversed in light of Protz . . . [II].” (Employer’s Br. at 40.) In
short, Protz I and II were directly at issue before the WCJ and Board.
      Even if they were not, the constitutionality of a statute need not be raised
before an administrative agency. 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). Rule 1551(a)(1) of the
Pennsylvania Rules of Appellate Procedure contains a similar provision, providing:
“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).
      This is consistent with our decision in Thompson. There, although the
claimant had not challenged the constitutionality of the IRE before the WCJ or the
Board, she did raise it in her petition for review. We rejected the employer’s
argument that the claimant waived the issue by not timely raising it, noting that “this
matter began before Protz I and Protz II were decided,” it implicated the validity of
Section 306(a.2) of the WC Act, and the “[c]laimant raised this issue at the first
opportunity to do so.” Thompson, 168 A.3d at 412 n.4. Accordingly, we applied
Protz II and reversed the Board’s decision modifying the claimant’s benefits from
total to partial. Id. at 412-13. Here, although he was not required to raise a
constitutional issue at all before the Board, 2 Pa. C.S. § 703(a); Pa.R.A.P. 1551(a)(1),
Claimant did raise it in his brief to the Board.
      Employer cites this Court’s decision in Winchilla v. Workers’ Compensation
Appeal Board (Nexstar Broadcasting), 126 A.3d 364 (Pa. Cmwlth.), petition for
allowance of appeal denied, 130 A.3d 1293 (Pa. 2015), for the proposition that



                                          15
Claimant waived the constitutionality argument by not raising it previously. This
statement of Winchilla is overly broad. In that case, the claimant was appealing
modification of his disability status from total to partial based upon an IRE using the
Sixth Edition of the Guides. The Board affirmed, finding it could not decide the
claimant’s constitutional challenge. In his petition for review to this Court, the
claimant merely stated that “the IRE provisions . . . as applied to [the claimant]
and/or facially, are unconstitutional, as they are capricious, arbitrary, not reasonably
calculated, confiscatory, not used to assess disability in the [WC] sense, improperly
disregard evidence that [the claimant] was totally disabled and improperly
extinguish rights.” Id. at 367 (quoting the claimant’s petition for review ¶ 8).
However, in his brief, the claimant expounded on that argument and argued
specifically that Section 306(a.2) was an unconstitutional delegation of legislative
authority. We agreed with the employer’s argument that the claimant waived that
argument by failing to raise it in his petition for review, finding the claimant did
not cite Article II, Section 1 of the Pennsylvania Constitution or in any manner assert
the IRE provisions were unconstitutional because they delegated legislative
authority. Id. at 367-68. We held this “unspecified constitutional claim” was
insufficient to preserve this issue for appellate review under Rule 1513(d) of the
Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1513(d).11 Id. at 368. Thus,
Winchilla is inapplicable because the issue here is not whether Claimant properly
raised this issue in a petition for review to this Court.



       11
           As discussed in Winchilla, Rule 1513(d) was amended in December 2014, after the
petitioner in that case filed his petition for review, to allow an appellate court to consider an issue,
even if it was not raised in the petition, “if the court is able to address the issue based on the
certified record.” Winchilla, 126 A.3d at 368 n.6 (emphasis omitted) (quoting Pa.R.A.P. 1513(d)).
The effect of the amendment was to soften the waiver provisions.


                                                  16
      In conclusion, because Claimant’s change in disability status based upon an
IRE was still being litigated at the time Protz II was decided, Protz II applies.
Employer has not demonstrated how applying Protz II to a pending case violates its
right to the due course of law under the Remedies Clause of the Pennsylvania
Constitution.   Furthermore, Claimant raised Protz II at the first available
opportunity, even though he was not required to raise a constitutional issue before
either the WCJ or Board.
      Accordingly, we find no error in the Board’s reasoning and affirm its Order.



                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                        17
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dana Holding Corporation,              :
                       Petitioner      :
                                       :
                 v.                    :   No. 1869 C.D. 2017
                                       :
Workers’ Compensation Appeal           :
Board (Smuck),                         :
                      Respondent       :


                                    ORDER


     NOW, October 11, 2018, the Order of the Workers’ Compensation Appeal
Board dated November 28, 2017, is AFFIRMED.




                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge
