                    [J -100A-2016 and J -100B-2016] [MO: Wecht, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 WESTERN DISTRICT


MARY ANN PROTZ,                              :   No. 6 WAP 2016

                     Appellant               :   Appeal from the Order of the
                                             :   Commonwealth Court entered
                                             :   September 18, 2015 at No. 1024 CD
              v.                             :   2014, vacating the Order of the
                                             :   Workers' Compensation Appeal Board
                                             :   entered May 22, 2014 at No. A13-0096
WORKERS' COMPENSATION APPEAL                 :   and remanding with instructions.
BOARD (DERRY AREA SCHOOL
DISTRICT),
                                             :   ARGUED: November     1,   2016
                     Appellees

MARY ANN PROTZ                               :   No. 7 WAP 2016

                                             :   Appeal from the Order of the
              v.                             :   Commonwealth Court entered
                                             :   September 18, 2015 at No. 1024 CD
                                             :   2014, vacating the Order of the
WORKERS' COMPENSATION APPEAL                 :   Workers' Compensation Appeal Board
BOARD (DERRY AREA SCHOOL                     :   entered May 22, 2014 at No. A13-0096,
DISTRICT)                                    :   and remanding with instructions.


APPEAL OF: DERRY AREA SCHOOL                 :   ARGUED: November     1,   2016
DISTRICT


                                 DISSENTING OPINION


JUSTICE BAER                                     DECIDED: JUNE 20, 2017
      I   respectfully dissent from the majority's holding that Section 306(a.2) of the

Workers' Compensation Act, 77 P.S. § 511.2, which directs a physician to evaluate a

claimant's degree of impairment pursuant to the most recent edition of the American

Medical Association ("AMA") "Guides to the Evaluation of Permanent Impairment,"
constitutes an unlawful delegation of legislative power in violation of Article   II,   Section   I




of the Pennsylvania Constitution.'      Unlike the majority,   I   do not interpret Section

306(a.2) as delegating legislative authority to the AMA. Rather, the challenged statutory

provision delegates preliminary determinations of claimant impairment ratings to board -

certified physicians licensed in the Commonwealth who are active in clinical practice.

The statute directs these physicians to utilize the most recent edition of the AMA Guides


1 As noted by the majority, Section 306(a.2), entitled "Medical examination; impairment
rating," provides in relevant part:


       (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 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.




                   [J -100A-2016 and J -100B-2016] [MO:    Wecht, J.]   -   2
in   connection with their initial impairment determination.               There is no constitutional

infirmity in this approach as           it   merely evinces the General Assembly's policy

determination to adopt the most up-to-date medical advances as the methodology to be

utilized by physicians when evaluating whether to classify a claimant as totally or

partially disabled. Stated differently, requiring the use of the most recent AMA Guides is

not delegating the authority to make law; it is simply declaring the applicable standard

by which physicians should conduct impairment rating evaluations. Accordingly,                     I   would

uphold the constitutionality of Section 306(a.2) and reverse the decision of the

Commonwealth Court, which held to the contrary.

        Constitutional challenges alleging that a statutory provision unlawfully delegates

legislative power emanate from Article          II,   Section   1   of the Pennsylvania Constitution.

PA. CONST. art. II, §    1   (stating that "[t]he legislative power of this Commonwealth shall

be vested in a General Assembly, which shall consist of a Senate and a House of

Representatives"). Section       1   has been interpreted as requiring the Legislature to make

the basic policy choices involved in legislative power, W. Mifflin Area Sch. Dist.                        v.

Zahorchak, 4 A.3d 1042, 1045           n. 5 (Pa.      2010), so as to preserve the separation of

powers.      Lehman   v. Pa.   State Police, 839 A.2d 265, 274 (Pa. 2003).                 In   addition to

making basic policy choices embodied in a law, the General Assembly must also supply

adequate standards to guide and restrain the exercise of delegated administrative

functions.    Pennsylvanians Against Gambling Expansion Fund                  v.   Commonwealth, 877

A.2d 383, 418 (2005).

        Section 306(a.2) does not violate these constitutional mandates. As observed by

the esteemed Judge Robert Simpson in his dissent below, the Legislature made the

policy decision that in the first instance, the degree of impairment determination must be

made by an independently selected (or agreed -upon), certified medical specialist,




                      [J -100A-2016 and J -100B-2016] [MO:            Wecht, J.]   -   3
engaged in current clinical practice, and based on a uniform, objective, current and

independent assessment standard.        See Protz       v.   Workers' Comp. Appeal Bd. (Derry

Area Sch. Dist.), 124 A.3d 406, 419 (Pa. Cmwlth. 2015) (Simpson, J., dissenting).2 The

statutory provision clarifies that key to the impairment determination is adherence to

prevailing best -practice medical standards, which is objectively demonstrated by

licensure and board certification, requisite clinical practice, and employment of current

AMA Guides. Id.      As Judge Simpson cogently noted, "[i]t is hard to see what other

basic policy choices remain to be made." Id.

        As did Judge Simpson below,       I   agree with the sentiments set forth by the

Supreme Court of New Mexico in Madrid          v. St.    Joseph Hospital, 928 P.2d 250, 256

(1996), which examined the same issue regarding whether a workers' compensation

statute constitutes an unlawful delegation of legislative authority by requiring the use of

the most recent edition of the AMA Guides in evaluating impairment.                          Id.   The court

found no unlawful delegation, recognizing that "many jurisdictions have articulated

compelling rationales for allowing adoption of a private organization's standards into a

statutory scheme without finding a delegation of legislative authority           .   .   .   even when the

standards are subject to periodic revision by the private entity." Id.

        The New Mexico Supreme Court explained that "[i]t is impractical to expect our

Legislature to establish standards for evaluating physical impairment in workers'

compensation claims." Id. at 258-59. Noting a possible lack of legislative resources to

adopt independent      medical impairment standards,             the court surmised that the

legislature chose to utilize objective standards established by the AMA, which is a highly

respected and impartial entity that possesses the expertise for such a task. Id. at 259.



2   Judges Leadbetter and Covey joined Judge Simpson's dissent.




                   [J -100A-2016 and J -100B-2016] [MO:         Wecht, J.]   -   4
The New Mexico High Court stated, "[p]rohibiting the Legislature from adopting the

standards developed by experts within a rapidly changing medical specialty would

obstruct the Workers'        Compensation Administration's efforts to provide accurate

evaluations of impairment." Id. Recognizing that new scientific developments relevant

to impairment evaluation demand modification, the court concluded that "[p]eriodic

revisions of the standard will not transform an otherwise constitutional and non-

delegatory statutory provision into an unconstitutional delegation of legislative power."

Id.

       Consistent with this approach, it is my view that thwarting the Pennsylvania

Legislature's ability to incorporate medical standards that are periodically updated due

to new scientific developments does not safeguard any constitutionally protected

interest but, rather, hinders the accuracy of claimant impairment ratings in workers'

compensation cases.         Additionally,   I   fear that the majority's decision will have far

reaching consequences as it would apply to various other Pennsylvania statutes that

rely on the most current standards and definitions promulgated by entities other than the

legislature itself.    See Opening Brief of Appellee/Cross-Appellant Derry Area School

District at 37-40 (citing to numerous statutes that reference current standards and

definitions developed by knowledgeable and                 professional   independent entities).

Accordingly,   I   would hold that the General Assembly's common sense decision to direct

physicians to utilize the most current medical knowledge when making impairment

determinations is a constitutionally sustainable policy decision that should be left

undisturbed.




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