M.A. Protz v. WCAB (Derry Area SD) ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary Ann Protz, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Derry Area School District), : No. 1024 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 BY
PRESIDENT JUDGE PELLEGRINI FILED: September 18, 2015
Mary Ann Protz (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 Derry Area School District’s
(Employer) petition to modify Claimant’s benefits (modification petition) from
total to partial disability under Section 306(a.2) of the Workers’ Compensation Act
(Act).1 Because we find Section 306(a.2) of the Act unconstitutional pursuant to
1
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.
Article II, Section 1 of the Pennsylvania Constitution, we vacate and remand for
further proceedings.
I.
The following facts are not in dispute. In April 2007, Claimant
sustained a work injury to her right knee when she fell while working for
Employer, and Employer issued a notice of temporary compensation payable.
When Claimant returned to work in August 2007, her benefits were suspended
pursuant to Employer’s notice of suspension. In February 2008, Claimant’s work
injury recurred, and her benefits were reinstated as per a supplemental agreement.
Subsequently, Employer filed a request for designation of a physician
to perform an impairment rating evaluation (IRE), following which Jeffrey M.
Moldovan, D.O. evaluated Claimant in October 2011 and provided a ten-percent
impairment rating under the Sixth Edition of the American Medical Association’s
(AMA) Guides to the Evaluation of Permanent Impairment (Guides).2 In April
2012, Employer filed a modification petition, seeking to convert Claimant’s total
disability benefits to partial disability benefits thereby reducing the amount of
2
Dr. Moldovan previously evaluated Claimant in December 2009, but could not perform
an IRE as Claimant had not yet obtained maximum medical improvement from her work injury.
Following the second IRE, in November 2011, Employer issued a notice of change of workers’
compensation disability status, changing Claimant’s status from total to partial disability,
effective the date of Dr. Moldovan’s IRE. Claimant then filed a petition to review compensation
benefits, alleging an incorrect description of her work injury and challenging Employer’s
unilateral conversion of her total disability benefits. The WCJ issued an order finding that
Employer was not entitled to automatically convert Claimant’s total disability benefits to partial
disability benefits and setting aside Employer’s notice of change of workers’ compensation
disability status.
2
compensation that can 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….”).
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 provide 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
(Footnote continued on next page…)
3
(continued…)
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.
(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
(Footnote continued on next page…)
4
When the Act was enacted, the Fourth Edition of the American Medical
Association (AMA) Guides to the Evaluation of Permanent Impairment (Guides)
was in effect but at the time of Claimant’s examination, the most current version
(the Sixth Edition) was being used. Each edition can change the impairment rating
for the same injury.
Following a hearing,4 the WCJ determined that as of January 16,
2012, Claimant’s impairment rating was less than fifty percent under the Sixth
(continued…)
one hundred four weeks for any employe who does not meet 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” 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).
4
Because Claimant does not challenge the WCJ’s factual findings, we need not
summarize the testimony presented to the WCJ.
5
Edition of the Guides. Accordingly, the WCJ granted Employer’s modification
petition, finding that Claimant was entitled only to partial disability benefits.5
II.
Claimant appealed to the Board, asserting that Section 306(a.2) of the
Act, 77 P.S. §511.2, constitutes an “unconstitutional delegation of authority by the
state legislature.” (Claimant’s Appeal from WCJ’s Findings of Fact and
Conclusions of Law, at 1.) The Board affirmed the WCJ’s decision, finding that:
The constitutionality of Section 306(a.2), 77 P.S. §511.2,
was addressed by the Commonwealth Court in Johnson
v. [Workers’ Compensation Appeal Board] (Sealy
Components Group), 982 A.2d 1253 (Pa. Cmwlth.
2009)[, appeal denied, 996 A.2d 493 (Pa. 2010)], where
it found a claimant’s constitutional rights to due process
were not violated. The Commonwealth Court further
upheld Section 306(a.2) where it required the use of the
[S]ixth [E]dition of the Guides despite a regulation
allowing for a grace period. Stanish v. [Workers’
Compensation Appeal Board] (James J. Anderson
Constr[uction] Co.), 11 A.3d 569 (Pa. Cmwlth. 2010).
Furthermore, the Commonwealth Court held up Section
306 as an example of a constitutional delegation of power
in P[ennsylvania] Builders Ass[ociation] v.
Dep[artment] of Labor & Indus[try], 4 A.3d 215 (Pa.
Cmwlth. 2010) [(en banc)].
(Reproduced Record [R.R.] at 72a.) This appeal followed.6
5
The WCJ further granted Claimant’s review petition and amended the description of her
injury.
6
III.
On appeal,7 Claimant challenges the constitutionality of Section
306(a.2) of the Act, 77 P.S. §511.2, as an unconstitutional delegation of legislative
authority pursuant to Article II, Section 1 of the Pennsylvania Constitution.8 She
contends that this provision gives the AMA rather than the General Assembly
(continued…)
6
We review Board decisions to determine whether errors of law were made, whether
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). As we explained
in Association of Settlement Companies v. Department of Banking, legislative enactments enjoy a
strong presumption that they do not violate the Constitution. 977 A.2d 1257, 1261 (Pa. Cmwlth.
2009) (en banc).
7
At the outset, Employer asserts that Claimant waived her right to argue that Section
306(a.2) of the Act is an unconstitutional delegation of authority since that argument is premised
upon Article II, Section 1 of the Pennsylvania Constitution, a provision that was raised for the
first time before this Court. While Claimant did cite only Article III, Section 1 in her appeal
before the Board and in her petition for review, there can be no doubt regarding the nature of her
argument below. See Pa. R.A.P. 1513(d)(5) (stating that the petition for review shall contain “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”). Indeed, although she may have cited the wrong
constitutional provision, the Board was clearly able to discern and address her argument, as are
we. (See R.R. at 72a (“Claimant does not challenge or appeal the specific factual findings or
legal conclusions of the WCJ other than to argue that Section 306 is an unconstitutional
delegation of legislative authority.”)). Moreover, “[q]uestions involving the validity of a statute”
may be raised before this Court even if they were not raised before the administrative agency
below. Pa. R.A.P. 1551(a)(1); see also Section 703 of the Administrative Agency Law, 2 Pa.
C.S. §703 (“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…”). Therefore, we will proceed to address the merits of Claimant’s appeal.
8
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.
7
authority to establish the criteria under which a claimant is adjudicated partially or
totally disabled.
By way of background, Claimant asserts that Section 306(a.2) was
added to the Act in 1996, at which time IREs were performed pursuant to the
Fourth Edition of the AMA Guides. She claims that the AMA Guides have
undergone two revisions since that time and that the current (Sixth) Edition
provides substantially different standards than those set forth in the Fourth Edition,
thereby causing some claimants who would have been considered more than fifty
percent impaired under the Fourth Edition to be less than fifty percent impaired
under the Sixth Edition.
Employer, echoing the Board’s reasoning, initially contends that we
have already addressed this issue and decided that Section 306(a.2) does not
constitute an unlawful delegation in both Stanish v. Workers’ Compensation
Appeal Board (James J. Anderson Construction Co.), 11 A.3d 569 (Pa. Cmwlth.
2010) and Wingrove v. Workers’ Compensation Appeal Board (Allegheny Energy),
83 A.3d 270 (Pa. Cmwlth.), appeal denied, 94 A.3d 1011 (Pa. 2014).
In Stanish, a claimant challenged an April 2008 IRE performed
pursuant to the Fifth Edition of the Guides, claiming that the physician’s
calculations should have been made under the more recent Sixth Edition, published
in January 2008. 11 A.3d at 572. However, the employer relied on a Bureau of
Workers’ Compensation (Bureau) regulation stating that the Bureau would accept
IREs performed under either the Fifth or Sixth Edition until August 31, 2008, to
8
allow physicians time to attend an approved training course on the Sixth Edition.
Id. The Board affirmed the WCJ’s decision holding that as per the Bureau’s
regulation, physicians were not required to use the Sixth Edition of the Guides
until September 2008. Id.
On appeal, we found that the Bureau’s regulation allowing for a grace
period violated Section 306(a.2)(1)’s mandate that “The degree of impairment shall
be determined…pursuant to the most recent edition of the American Medical
Association ‘Guides to the Evaluation of Permanent Impairment.’” Id. at 573
(quoting Section 306(a.2)(1) of the Act, 77 P.S. §511.2). We explained that the
term “shall” is mandatory and that although the Bureau’s interpretation of this
provision may be reasonable, it contradicts the statute’s plain language. Id. at 576.
Importantly, we specifically stated that neither party in that case challenged
Section 306(a.2) of the Act as an unconstitutional delegation of legislative power
under Article II, Section 1 of the Pennsylvania Constitution:
Neither party raises any constitutional argument
concerning whether the Legislature’s use of the phrase
“the degree of impairment shall be determined based
upon an evaluation by a physician ... pursuant to the most
recent edition of the American Medical Association
‘Guides to the Evaluation of Permanent Impairment’”
gives rise to any impermissible delegation of any law
making power to the AMA when it issues a new text.
Thus, we will not pursue this issue any further.
Id. at 573 n.2.
9
In Wingrove, a claimant challenged the constitutionality of Section
306(a.2) of the Act when his status was changed from totally to partially disability
following an IRE performed in accordance with the Sixth Edition of the Guides.
83 A.3d at 276. Specifically, the claimant asserted that “in some circumstances, a
claimant who would have been considered to be more than 50% disabled under the
most recent [Fourth] edition of the AMAs in 1996, might be less than 50%
disabled under the most recent [Sixth] edition today,” and that “a different claimant
with a different type of injury, who was less than 50% disabled in 1996, might be
considered to be more than 50% under the most recent edition today.” Id. (citing
Claimant’s Brief, at 18) (internal quotations omitted).
We determined that in Wingrove, the claimant failed to develop his
constitutional argument, explaining that “[a]lthough he asserts that different
editions of the AMA Impairment Guidelines may change a claimant’s impairment
evaluation, he does not assert that any of these changes would have affected his
2005 IRE.” Id. at 277. Further, we discussed several of the difficulties in
addressing a claim that Section 306(a.2) of the Act was an unconstitutional
delegation of legislative authority to the AMA, finding that the claimant had
addressed none of the pertinent issues and therefore failed to develop his argument
to the point that he established a plain and palpable constitutional violation. Id.
IV.
Article II, Section 1 of the Pennsylvania Constitution vests legislative
power in our General Assembly, “embod[ying] the fundamental concept that only
the General Assembly may make laws, and cannot constitutionally delegate the
10
power to make law to any other branch of government or to any other body or
authority.” Association of Settlement Companies v. Department of Banking, 977
A.2d 1257, 1265 (Pa. Cmwlth. 2009) (en banc).
As our Supreme Court explained in Holgate Brothers Co. v. Bashore:
Legislative power in Pennsylvania is vested solely in the
General Assembly. Regardless of exigencies which at
times arise or of how trying our economic or social
conditions become, the powers and duties imposed by the
Constitution upon the legislative branch of our
government remain steadfast and neither the urgency of
the necessity at hand nor the gravity of the situation
allow the legislature to abdicate, transfer or delegate its
authority or duty to another branch of the government.
Our system of checks and balances in the government
was wisely instituted by the framers of the Constitution
for the protection of all the people of the Commonwealth
and has proved an effective method to prevent unwise,
hasty and imprudent legislation. So effective has been
this system of government no attempt has been made to
amend that part of the Constitution and it remains the
fundamental law of this Commonwealth.
200 A. 672, 675 (Pa. 1938).
Nonetheless, it has been held that the General Assembly may
“delegate authority and discretion in connection with the execution and
administration of a law” to an independent agency or an executive branch agency
where the General Assembly first “establish[es] primary standards and impose[s]
upon others the duty to carry out the declared legislative policy in accordance with
the general provisions of the enabling legislation.” Blackwell v. Commonwealth,
11
State Ethics Commission, 567 A.2d 630, 637 (Pa. 1989). The limits on delegating
such power are twofold: “(1) the basic policy choices must be made by the
Legislature”; and (2) the “legislation must contain adequate standards which will
guide and restrain the exercise of the delegated administrative functions.” Gilligan
v. Pennsylvania Horse Racing Commission, 422 A.2d 487, 489 (Pa. 1980),
remanded, 432 A.2d 275 (Pa. Cmwlth. 1981).
In Bell Telephone Company of Pennsylvania v. Driscoll, 21 A.2d 912,
915 (Pa. 1941), Bell challenged Section 702 of the Public Utility Law of 1937,9
which then provided, “No public utility…shall, without the prior approval of the
[Public Utility] [C]omission [(PUC)], make effective or modify any contract with
an affiliated interest….” Id. at 913 n.1. Our Supreme Court noted that this
provision contained “no explicit standard…to guide the [PUC],” indicating that
“the legislature did not intend to set up any standard for the [PUC] in approving
contracts, for its power to approve or disapprove is untrammeled by any
conditions.” Id. at 915.
In rejecting the PUC’s contention that “public interest” was the
implied standard for approval, the Court explained that unless further defined or
limited in its meaning, the term could not serve as a proper standard because to
determine whether a contract was contrary to the public interest, it is first
“necessary to find what is or what is not in the public interest,” and “[t]he power to
make such determination rests with the legislature.” Id. Explaining, “[i]f the
9
Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. § 1272, repealed and replaced by
the Public Utility Code, 66 Pa. C.S. §§ 1013316.
12
legislature fails, however, to prescribe with reasonable clarity the limits of the
power delegated or if those limits are too broad its attempt to delegate is a nullity,”
the Court determined that the General Assembly failed to provide standards for the
PUC to employ in approving or disproving contracts. Id. at 916.
Similarly, in Association of Settlement Companies, this Court
adjudicated the Department of Banking’s preliminary objections to debt-settlement
services providers’ petition for review, asserting that then-Section 3(b) of the Debt
Management Services Act10 unconstitutionally delegated the General Assembly’s
power to regulate debt-settlement service providers’ conduct to the Department of
Banking. 977 A.2d at 1263. The provision at issue stated, in pertinent part, “No
person may…provide debt settlement services to a consumer for a fee unless the
person is licensed by the department under this act and is operating in accordance
with regulations promulgated by the department regarding the conduct of debt
settlement services.” Section 3(b) of the Debt Management Services Act, formerly
63 P.S. § 2403(b) (emphasis added).
Determining that Section 3(b) “provide[d] the Department with no
guidance or restraint regarding the regulation of ‘the conduct of debt settlement
services’” in that it “[wa]s silent on how debt settlement services [we]re to be
provided, what an agreement to provide debt settlement services must contain, or
any other provisions similar to the ones established for [Debt Management
Service] Providers,” we found that Section 3(b) lacked intelligible standards to
10
Act of October 9, 2008, P.L. 1421, 63 P.S. §2403(b), repealed by Act of July 9, 2014,
P.L. 1022.
13
guide the Department of Banking with regard to the activities of debt settlement
services providers. Association of Settlement Companies, 977 A.2d at 126869.
We held that in the absence of such standards, we could not find that the General
Assembly’s delegation of authority to the Department of Banking was legitimate,
and therefore overruled the Department’s preliminary objections in this regard. Id.
at 1272.
Employer directs us to Pennsylvania Builders Association v.
Department of Labor & Industry, 4 A.3d 215 (Pa. Cmwlth. 2010) (en banc), a case
in which we addressed an association’s contention that a provision of the
Pennsylvania Construction Code Act11 was invalid as an unconstitutional
delegation of authority by the General Assembly. Id. at 219. Pursuant to Section
301(a) of the Pennsylvania Construction Code Act, 35 P.S. § 7210.301(a), the
Department of Labor and Industry (Department) was required to promulgate
regulations adopting the then-current versions of the National Building Code12 and
the International One- and Two-Family Dwelling Code.13 Pennsylvania Builders
Association, 4 A.3d at 218.
Further, Section 304(a) of the Pennsylvania Construction Code Act,
35 P.S. § 7210.304(a), required the Department to promulgate regulations at the
11
Act of November 10, 1999, P.L. 491, as amended, 35 P.S. §§ 7210.101.1103.
12
Building Officials and Code Administrators International, Inc., National Building Code
(14th ed. 1999).
13
International Code Council, Inc., International One- and Two-Family Dwelling Code
(1998 ed.).
14
end of each year in which these codes were modified, adopting or rejecting the
changes pursuant to the recommendation of the Uniform Construction Code
Review and Advisory Council (Advisory Council), the members of which were
appointed by the Governor. See Section 107(b)(2) of the Pennsylvania
Construction Code Act, added by Act of October 9, 2008, P.L. 1386, as amended,
35 P.S. § 7210.107(b)(2). Following the issuance of revisions in 2009, the
Advisory Council notified the Department that it had no exclusions to recommend,
and the Department promulgated regulations adopting the changes. Pennsylvania
Builders Association, 4 A.3d at 21819 & n.6; see also 39 Pa. Bull. 7196
(December 26, 2009).
In sustaining the Department’s preliminary objections to the
association’s claim that the General Assembly had improperly vested its legislative
authority in the International Code Council, we explained:
[T]o the extent the General Assembly was attempting via
the [Pennsylvania Construction Code Act] to delegate its
rule-making authority over Pennsylvania’s building
codes to [the Department] and, consequently
[International Code Council], it had the authority to do so
as long as, in light of the subject matter covered and the
scope of the powers granted therein, the [Pennsylvania
Construction Code Act] sets forth a definite and
reasonable standard for such authority.
Pennsylvania Builders Association, 4 A.3d at 221.
Just as in Bell Telephone Company of Pennsylvania and Association
of Settlement Companies, and unlike in Pennsylvania Builders Association, in the
15
instant case, the General Assembly has failed to prescribe any intelligible standards
to guide the AMA’s determination regarding the methodology to be used in
grading impairments. Section 306(a.2) of the 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. Indeed, Section 306(a.2) merely
requires that the most recent version of the AMA Guides be used to determine a
claimant’s impairment rating. 77 P.S. §511.2. Accordingly, under this basis alone,
we find Section 306(a.2) of the Act unconstitutional.14
Additionally, Section 306(a.2) of the Act lacks a mechanism requiring
governmental review of the Guides by the promulgation of regulations. In the
14
Judge Simpson’s dissenting opinion concludes that the majority “misses the mark…
because the General Assembly delegated initial determinations of impairment ratings to
impartial, Pennsylvania-licensed, board-certified, clinically active physicians; the AMA does not
participate in impairment ratings under the Act.” (Dissenting Opinion, at 3.) While it is true that
individual physicians must provide impairment ratings, under Section 306(a.2) of the Act, they
must apply and are bound by the method prescribed by the AMA. Likewise, a WCJ reviewing a
petition to modify benefits based upon an IRE may assess the physician’s credibility but is not
free to adopt a different methodology. Thus, although “the AMA does not participate in
impairment ratings under the Act,” it provides the “rules” or “laws” which govern them.
Further, Judge Simpson determines that the General Assembly provided numerous
standards regarding the methodology to be used in rendering impairment ratings and states that
the most recent edition of the AMA Guides is but a part of this guidance. Specifically, he sets
forth seven policy decisions the General Assembly made in this regard. (Dissenting Opinion, at
45.) However, of the seven policies listed, the first three pertain to who makes the impairment
ratings, and the next three policies describe what must be evaluated. Only the seventh policy,
stating that the evaluating physician must proceed in accordance with the most recent edition of
the AMA Guides, pertains to how those ratings are to be calculated, and as stated above, the
General Assembly provides absolutely no standards in this regard. The fact that the AMA has
professional expertise in this arena is of no consequence.
16
above cases, we examined if there were adequate standards to guide and restrain
governmental agencies in carrying out the General Assembly’s legislative intent.
The challenged delegation here is not to a governmental agency but to a private
party—the AMA. While it is well-established that the General Assembly may
adopt as its own standards established by specialized groups with intimate factual
knowledge of the subject matter, it must make the basic policy choices or provide
standards to government agencies charged with adopting regulations to implement
the standards established by specialized groups. In Pennsylvania Builders
Association, the Pennsylvania Construction Code Act required the Department to
promulgate regulations by the end of each year in which the subject codes were
modified to update the Pennsylvania UCC, and we approved a Department
regulation adopting the International Code Council’s 2009 codes pursuant to this
Act. 4 A.3d at 226. Critically, the Act required the Department to promulgate
regulations each year the codes were modified and established standards for doing
so; it did not merely adopt all new codes proactively. Id. at 218.
In this case, the General Assembly adopted as its own the
methodology enumerated by the AMA at the time it enacted Section 306(a.2)—
that is, the methodology contained in the Fourth Edition of the Guides. The
General Assembly has not reviewed and re-adopted the methodology contained in
subsequent editions. Moreover, unlike in Pennsylvania Builders Association,
where the General Assembly provided for review of the new codes by the
Department of Labor and Industry, in this case, any form of review of subsequent
editions of the AMA Guides is wholly absent, leaving unchecked discretion
completely in the hands of a private entity. The legislature has simply provided a
17
private party—the AMA—with carte blanche authority to implement its own
policies and standards, proactively adopting those standards, sight unseen.
Even then if we had found that there are adequate standards allowing
for a delegation to a governmental agency, Section 306(a.2)(1) would still be
unconstitutional because the delegation here was to a private party. Unlike
governmental agencies which are supposed to act disinterestedly and only for the
public good, that presumption cannot be made with regard to private entities.
There is no accountability to the public, either directly through the rulemaking
process providing for public input and comment or indirectly through the
appointment and confirmation power and the power of the purse.15 More simply,
the keystone behind the prohibition against unlawful delegation is that the General
Assembly, not private bodies, enacts laws which the government agencies
implement in accordance with the standard given to them in the enactment.16
15
In Carter v. Carter Coal Co., the United States Supreme Court struck down a
provision of the Bituminous Coal Conservation Act of 1935, 15 U.S.C. §§ 801827, delegating
authority to fix maximum hours of labor and set minimum wages to a portion of the producers
and a majority of the miners. 298 U.S. 238, 311, 56 S. Ct. 855, 873 (1936). Although this issue
was decided under the due process clause of the Fifth Amendment, the Court’s rationale is
equally applicable here: “This is legislative delegation in its most obnoxious form; for it is not
even delegation to an official or an official body, presumptively disinterested, but to private
persons whose interests may be and often are adverse to the interests of others in the same
business.” Id.
16
Employer further relies on Gima v. Hudson Coal Co., 165 A. 850, 851 (Pa. 1933).
However, Gima has been inferentially overruled because it is at odds with later Supreme Court
decisions such as Bell Telephone Company of Pennsylvania v. Driscoll, 21 A.2d 912, 915 (Pa.
1941), in that it did not examine whether the challenged provision, Rule 29, Article XII of the
Anthracite Mine Law, Act of June 2, 1891, P.L. 176, 52 P.S. § 424, repealed and replaced by the
Pennsylvania Anthracite Coal Mine Act, Act of November 10, 1965, P.L. 721, 52 P.S. §§ 70-
1011405, contained explicit standards to be applied in promulgating the subject safety rules and
only cited cases involving delegation to governmental agencies.
18
Accordingly, we declare Section 306(a.2) of the Act, 77 P.S. §511.2,
an unconstitutional delegation of legislative authority insofar as it proactively
approved versions of the AMA Guides beyond the Fourth Edition without review.
Further, we vacate the Board’s decision with respect to Employer’s modification
petition and remand this matter to the Board with instruction to remand to the WCJ
to apply the Fourth Edition of the AMA Guides in adjudicating the same.
DAN PELLEGRINI, President Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary Ann Protz, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Derry Area School District), :
Respondent : No. 1024 C.D. 2014
ORDER
AND NOW, this 18th day of September, 2015, upon finding Section
306(a.2) of the Workers’ Compensation Act, 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, an
unconstitutional delegation of legislative authority insofar as it purports to adopt a
new version of the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (Guides), the order of the Workers’ Compensation Appeal
Board dated May 22, 2014, in the above-captioned case is vacated. This matter is
remanded to the Workers’ Compensation Appeal Board with instruction to remand
further to the Workers’ Compensation Judge to apply the Fourth Edition of the
Guides in effect when the provision was enacted in adjudicating Derry Area
School District’s petition to modify benefits.
Jurisdiction relinquished.
DAN PELLEGRINI, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary Ann Protz, :
Petitioner :
:
v. : No. 1024 C.D. 2014
: Argued: April 15, 2015
Workers' Compensation Appeal :
Board (Derry Area School District), :
Respondent :
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
DISSENTING OPINION
BY JUDGE SIMPSON FILED: September 18, 2015
I disagree with the Majority’s determination that Section 306(a.2) of
the Workers’ Compensation Act1 (Act), pertaining to medical examinations and
impairment ratings, violates the Pennsylvania Constitution’s prohibition against the
unlawful delegation of legislative power. As explained below, in Section 306(a.2)
the General Assembly delegated initial impairment ratings to an independent,
Pennsylvania-licensed, board-certified, clinically-active physician. Further, in
situations such as the present case, ultimate impairment ratings are resolved by an
impartial workers’ compensation judge (WCJ) after a full adjudicative process.
Therefore, I respectfully dissent.
1
Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 24, 1996, P.L. 350,
77 P.S. §511.2.
“Legislative enactments enjoy a strong presumption that they do not
violate the Constitution.” Wingrove v. Workers' Comp. Appeal Bd. (Allegheny
Energy), 83 A.3d 270, 276 (Pa. Cmwlth. 2014). “The party challenging a statute’s
constitutionality has a ‘very heavy burden’ in overcoming the presumption. The
party must show the statute ‘clearly, palpably and plainly’ violates the
Constitution.” Id. at 276-77.2
Pursuant to the non-delegation doctrine set forth in Article II, Section
1 (Commonwealth’s legislative power shall be vested in a General Assembly) and
Article III, Section 1 (no law shall be passed except by bill) of the Pennsylvania
Constitution, the General Assembly cannot delegate its lawmaking power to any
other branch of government, body or authority. Christ the King Manor v. Dep’t of
Pub. Welfare, 911 A.2d 624 (Pa. Cmwlth. 2006), aff’d, 951 A.2d 255 (Pa. 2008)
(citing Ins. Fed. of Pa., Inc. v. Dep’t of Ins., 889 A.2d 550 (Pa. 2005)).
2
Here, Claimant argued in her brief: “The subsequent editions of the AMA Guides
provide substantially different standards for assessing disability than were set forth in 4th Edition.
Thus, in some circumstances, a claimant who would have been considered to be more than 50%
disabled under the 4th Edition of the AMA Guides, might be less than 50% disabled under the
most recent edition today.” Pet’r’s Br. at 12. “Likewise, a different claimant with a different
type of injury, who was less than 50% disabled in 1996, might be considered to be more than
50% under the most recent edition today.” Id.
As the Majority observes, this is the argument raised by the claimant in Wingrove v.
Workers' Compensation Appeal Board (Allegheny Energy), 83 A.3d 270 (Pa. Cmwlth. 2014),
and found insufficient by this Court to develop a constitutional argument because the claimant
did not assert that the AMA’s changes to the Guides adversely affected his impairment
evaluation. See Protz v. Workers' Comp. Appeal Bd. (Derry Area School District), ___ A.3d
___, (Pa. Cmwlth., No. 1024 C.D. 2014, filed ___), slip. op., at 10. In Wingrove, 83 A.3d at
278, we found the claimant’s constitutional argument to be “conclusory at best” and insufficient
to establish “a plain and palpable constitutional violation.” I would make the same
determination here.
RES - 2
Nonetheless, the General Assembly may delegate its rulemaking or policy making
authority to an administrative agency as long as the General Assembly makes the
basic policy choices and enacts safeguards guiding the agency’s exercise of the
delegated functions. Id.
Here, the Majority concludes the General Assembly delegated to the
American Medical Association (AMA) the determination regarding the
methodology to be used in grading impairments, but failed to provide any
intelligible standards to do so. Respectfully, this conclusion misses the mark. This
is because the General Assembly delegated initial determinations of impairment
ratings to impartial, Pennsylvania-licensed, board-certified, clinically active
physicians; the AMA does not participate in impairment ratings under the Act.
The General Assembly provided numerous standards to guide impairment rating
decisions made by physicians, of which use of the most recent edition of the AMA
Guides is but a part.
In enacting Section 306(a.2) of the Act, the General Assembly
established the basic policy and provided adequate standards for determining
impairment ratings for purposes of modification of total disability status under the
Act. As discussed in Westmoreland Regional Hospital v. Workers' Compensation
Appeal Board (Pickford), 29 A.3d 120, 127 (Pa. Cmwlth. 2011), appeal denied, 42
A.3d 295 (Pa. 2012), Section 306(a.2)(1) of the Act provides that after 104 weeks
of receiving total disability compensation, a claimant is required to submit to a
medical examination for purposes of determining the degree of permanent
impairment due to the compensable injury. 77 P.S. §511.2(1). The impairment
RES - 3
rating must be performed by a board certified physician licensed in the
Commonwealth who is active in clinical practice for at least 20 hours per week.
Id. The physician must be chosen by agreement of the parties or designated by the
Department of Labor and Industry. Id. As we noted in Wingrove, 83 A.3d at 277,
“the impairment evaluation is conducted by a physician, not by a textbook.”
Further, Section 306(a.2)(2) provides that a claimant who reached
maximum medical improvement and has an impairment, due to the work injury, of
less than 50 percent under the most recent edition of the AMA Guides, shall
receive partial disability benefits for 500 weeks. 77 P.S. §511.2(2). Section
306(a.2)(3) provides that amount of compensation will not be affected as a result
of the change in disability status. 77 P.S. §511.2(3).
In addition, Section 306(a.2)(8)(i) of the Act defines the term
“impairment” as “an anatomic or functional abnormality or loss that results from
the compensable injury and is reasonably presumed to be permanent.” 77 P.S.
§511.2(8)(i). Section 306(a.2)(8)(ii) defines the term “impairment rating” as “the
percentage of permanent impairment of the whole body resulting from the
compensable injury and not for any preexisting work-related or non-work-related
impairment.” 77 P.S. §511.2(8)(ii).
In light of these provisions, the General Assembly made the following
basic policy decisions and safeguards:
1. Impairment ratings are medical determinations made by a currently
licensed, currently board-certified physician. Interestingly, no challenge is
RES - 4
made to the methodology of the independent medical board which must
certify the physician;
2. The physician must be active in clinical practice, the level of activity being
based on a uniform, objective standard of 20 hours per week;
3. The physician is chosen by agreement of the parties or designated by the
department. Thus, unlike other expert witnesses who may testify in
workers’ compensation proceedings, the physician cannot be chosen
unilaterally by a party;
4. The physician must evaluate permanent impairment;
5. The physician must evaluate whole body impairment;
6. The physician must evaluate impairment from the compensable injury,
rather than from some preexisting work-related or nonwork-related
impairment; and
7. The physician must proceed pursuant to a known, uniform, objective and
current standard approved by the AMA.
The General Assembly thus decided that in the first instance the
determination of degree of impairment should be one made by an independently
selected (or agreed-upon), currently certified medical specialist, engaged in current
clinical practice, and based on a uniform, objective, current and independent
assessment standard. Independence, objectivity, uniformity and current medical
knowledge and experience are the hallmarks of the process. See Pickford (AMA
Guides require objective clinical evidence before a condition can be rated). More
specifically, knowledge of and adherence to prevailing best-practice medical
standards, as objectively demonstrated by current licensure and board certification,
by current clinical experience, and by use of current AMA guidelines, are key. It
is hard to see what other basic policy choices remain to be made.
RES - 5
Given the standards in Section 306(a.2) of the Act for determining an
impairment rating for the purposes of establishing total or partial disability status
after 104 weeks of compensation, I do not believe that legislative deference to the
AMA’s professional expertise in periodically updating the complex medical
standards in the Guides amounts to an unconstitutional delegation of legislative
power. In short, the General Assembly made the basic policy choices and
established the standards in Section 306(a.2) of the Act for determining the level of
disability status based on the level of impairment resulting from the work injury.
Moreover, the AMA Guides are used by medical professionals across
the nation in quantifying an individual’s degree of physical impairment not only
for workers’ compensation purposes, but also in a variety of other cases. As this
Court previously observed, “[t]he impairment ratings system was developed by the
AMA to quantify the monetary loss caused by a personal injury in an objective
way.” Pickford, 29 A.3d at 127. “The AMA Guides have been used by states and
the federal government for many years to determine eligibility to a variety of
workers' compensation and related benefits.” Id.
Indeed, other states have adopted and judicially upheld similar
workers’ compensation provisions requiring the use of the most recent edition of
the AMA Guides in evaluating impairment in workers’ compensation cases. In
Madrid v. St. Joseph Hospital, 122 N.M. 524, 928 P.2d 250 (1996), the New
Mexico Supreme Court rejected a similar unconstitutional delegation challenge to
the required use of the most recent edition of the AMA Guides. In so doing, the
Court reasoned:
RES - 6
20. It is impractical to expect our Legislature to
establish standards for evaluating physical impairment in
workers' compensation claims. The New Mexico
Legislature could have concluded that it lacked the
resources to develop independent standards, opting
instead to utilize the standards established by a highly
respected entity that possessed the expertise for such an
undertaking. Prohibiting 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.
21. In addition, new developments in medical
science relevant to evaluating impairment demand
periodic modifications of the standard adopted by Section
24 [of the New Mexico Workers' Compensation Act,
N.M.S.A. 1978 §52-1-24]. The AMA Guide is
periodically updated to encompass these new
developments. Periodic revisions of the standard will not
transform an otherwise constitutional and non-delagatory
statutory provision into an unconstitutional delegation of
legislative power. Where a standard is periodically
updated because of new scientific developments
recognized by eminent professionals interested in
maintaining high standards in science, the standard may
still be adopted by the Legislature.
Madrid, 122 N.M. at 532-33, 928 P.2d at 258-59 (citations omitted).
Here, I would uphold the constitutionality of Section 306(a.2) of the
Act for similar reasons. I believe the General Assembly may rely on the medical
expertise of the AMA, a well-recognized independent authority, in expressing
current, best-practice medical knowledge in the Guides.
Importantly, where, as here, an employer requests an impairment
rating more than 60 days following 104 weeks of total disability, the employer
RES - 7
must file a modification petition to have the claimant’s disability status changed.
Pickford. When an employer files such a petition, the initial impairment rating
becomes just an item of evidence in a proceeding where a WCJ ultimately
determines impairment. Id. A claimant may introduce his own evidence regarding
his degree of impairment to rebut the initial impairment rating. Id. For this
additional significant reason, the application of the Act in the present case cannot
establish a plain and palpable violation of the non-delegation doctrine. Id.
For the above reasons, I would affirm the order of the Board.
ROBERT SIMPSON, Judge
Judges Leadbetter and Covey join in this dissent.
RES - 8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary Ann Protz, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Derry Area School District), : No. 1024 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
DISSENTING OPINION
BY JUDGE COVEY FILED: September 18, 2015
I join in Judge Simpson’s dissenting opinion, and write separately to
express my additional concerns regarding the Majority’s declaration that Section
306(a.2) of the Workers’ Compensation Act (Act),1 mandating the use of the most
recent American Medical Association’s (AMA) “Guides to the Evaluation of
Permanent Impairment,” is unconstitutional. I disagree with the Majority’s
conclusion that, “[e]ven . . . if we had found that there are adequate standards
allowing for a delegation to a governmental agency, Section 306(a.2)(1) [of the Act]
would still be unconstitutional because the delegation . . . was to a private party[,]”
since that conclusion is directly contrary to established precedent. Majority Op. at
18. Instead, I believe the mandated use of the AMA Guides constitutes the
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.2, added by Section 4 of the Act
of June 24, 1996, P.L 350.
permissible involvement of a private organization in the rule-making process, and
thus, Section 306(a.2)(1) is not unconstitutional.
In Gima v. Hudson Coal Co., 165 A. 850 (Pa. 1933), which involved
legislation incorporating standards developed by private parties, i.e., explosive
manufacturers, the Pennsylvania Supreme Court affirmed the constitutionality of
Rule 29 of the Anthracite Mine Law (Law),2 formerly 52 P.S. § 424. Rule 29 of the
Law provided: “When high explosives other than gunpowder are used in any mine,
the manner of storing, keeping, moving, charging and firing or in any manner using
such explosives shall be in accordance with special rules as furnished by the
manufacturers of the same.” Id. at 851 n.1 (emphasis added) (quoting 52 P.S. §
424).
The Gima Court approvingly quoted the lower court:
[W]e have had much legislation which does not delegate the
power of the General Assembly to make laws, but does
delegate to some person or body the power to determine
some fact or state of things upon which the law makes, or
intends to make, its own action depend. . . . As was
trenchantly said by Chief Justice Black in Moers v. City of
Reading, 21 Pa. 188, 202 [1853], in discussing the same
constitutional provision: ‘Half the statutes in our books are
in the alternative, depending on the discretion of some
person or persons to whom is confided the duty of
determining whether the proper occasion exists for
executing them. But it cannot be said that the exercise of
such a discretion is the making of the law.’
Both the [Law] and [the] Bituminous Mine Law[][3] are
replete with instances of powers granted to mine bosses,
mine foremen, mine inspectors, and similar officials who do
not legislate, but who are authorized to do certain things
and give certain orders which must be obeyed by the miners
and their laborers, and violation of which constitutes an
offense against the mine laws. The power to establish and
2
Act of June 2, 1891, P.L. 176.
3
Act of June 9, 1911, P. L. 756, 779.
AEC - 2
approve certain rules for the storage, firing, use, etc., of
high explosives, is no more a delegation of legislative
power than the determination of what places in the mine are
safe to work in (rules 5, 34 . . .); the granting of permission
to fire a blast, where locked safety lamps are used (rule 11 .
. . ); the fixing of the number of persons who may be
hoisted or lowered at one time in a mine (rule 17 . . . ); the
determination whether a miner is competent to blast coal,
etc. (rules 35, 36 . . . ); the fixing of a safe steam pressure
(rule 39); and none of these are different in character from
the power formerly given the courts to pass upon licenses
for the sale of intoxicating liquors, referred to and upheld in
the opinion in [Locke’s Appeal, 72 Pa. 491 (1873)]. In fact,
a consideration of these different matters will show how
impossible and unscientific it would be for the General
Assembly to attempt to enact laws covering in detail all the
matters thus wisely provided for. . . .
....
The General Assembly cannot be expected to enact laws
which shall in themselves keep abreast of every advance
of science and invention in the explosive line any more
than it can of itself determine when a working place is
free of gas and fit to work in; but it has established a
means by which such advances can be utilized and made
safe in mines, and in rule 29 it has delegated its power to
determine the safe method to store, charge, fire and use
such explosives to the manufacturer and the mine owner
jointly, knowing that they will not for their own interest
err on the side of danger, and has established a method
for making known such determination to the miners and
laborers who use them by posting and publishing, and
has declared that a use of such high explosives contrary
to such determination, thus posted and published, is a
violation of law. In doing so, the General Assembly has
legislated – not the powder manufacturer or coal
operator – no legislative power or authority has been
delegated to them.
Gima, 165 A. at 852-53 (emphasis added) (quoting Gima v. Hudson Coal Co., 161 A.
903, 907-909 (Pa. Super. 1932)).
AEC - 3
The Majority states:
Gima has been inferentially overruled because it is at odds
with later Supreme Court decisions such as Bell Telephone
Company of Pennsylvania v. Driscoll, 21 A.2d 912, 915
(Pa. 1941), in that it did not examine whether the
challenged provision, Rule 29, Article XII of the [Law],
contained explicit standards to be applied in promulgating
the subject safety rules and only cited cases involving
delegation to governmental agencies.
Majority Op. at 18-19 n.16.
However, in 1973, more than 30 years after Driscoll, our Supreme Court
relied on Gima to reaffirm the principle that “it is not objectionable that ‘many things
upon which wise and useful legislation must depend which cannot be known to the
law-making power, . . . must, therefore, be a subject of inquiry and determination
outside of the halls of legislation.’” Johnson v. Pa. Hous. Fin. Agency, 309 A.2d 528,
535 (Pa. 1973) (quoting Gima, 165 A. at 851). Thus, although the Supreme Court
has, in other cases imposed the “adequate standards” requirement to delegated
authority, it has still quoted Gima for the principle that the General Assembly is
permitted to rely upon outside sources.
In addition, just five years ago, this Court, in its en banc decision in
Pennsylvania Builders Association v. Department of Labor and Industry, 4 A.3d 215
(Pa. Cmwlth. 2010), relied upon Gima for the same principle. Thus, I believe that the
Majority incorrectly concludes that Gima has been “inferentially overruled.”
Majority Op. at 18 n.16.
Further, I agree with the rationale in Gima and Pennsylvania Builders,
that “[t]he General Assembly cannot be expected to enact laws which shall in
themselves keep abreast of every advance of science and invention[,]” and it is
unreasonable to impose upon the General Assembly the burden of frequently
revisiting legislation to reflect evolving, broadly-accepted changes in the medical
AEC - 4
field that are beyond the expertise of the legislative body. Gima, 165 A. at 853.
Thus, I would conclude that, in accordance with Pennsylvania Builders and Gima, the
involvement of a private organization such as the AMA in the rule-making process is
not always fatal, and permit the General Assembly to remedy the constitutional
infirmity through the imposition of adequate standards similar to those in
Pennsylvania Builders.
More importantly, I believe the Majority fails to acknowledge that its
opinion directly contradicts and effectively overrules the en banc Pennsylvania
Builders decision which explicitly rejected the conclusion reached by the Majority
here: The involvement of a private party in the General Assembly’s rule-making
is always unconstitutional. In Pennsylvania Builders, this Court sustained the
Department of Labor and Industry’s (L&I) preliminary objections to the Pennsylvania
Builders Association’s (PBA) petition for review and dismissed PBA’s motion for
summary relief on the basis that the post-Review and Advisory Council (RAC)
Pennsylvania Construction Code Act (PCCA)4 neither improperly delegated the
General Assembly’s rule-making authority, nor its authority over the execution and
administration of that law. Thus, L&I’s adoption of International Code Council’s
(ICC) 2009 codes as Pennsylvania’s 2009 Uniform Construction Code (UCC) did not
violate Article II, Section 1 of the Pennsylvania Constitution.5 There, the Court
stated:
4
Act of November 10, 1999, P.L. 491, as amended, 35 P.S. §§ 7210.101-1103.
5
The Majority discusses the Pennsylvania Builders decision, but distinguishes it from the
instant matter by noting that the en banc Pennsylvania Builders Court found that the PCCA set
adequate standards for the delegation of rule-making authority. However, the Majority does not
distinguish or even acknowledge but rather simply ignores the portion of the Pennsylvania Builders
opinion that, just five years earlier, explicitly endorsed the validity of a non-governmental body’s
involvement in the General Assembly’s rule-making process, and which specifically referenced
Section 306(a.2) of the Act as an example of a constitutionally-permissible involvement of a non-
governmental body in the General Assembly’s rule-making process.
AEC - 5
In other cases cited by Petitioners, rule[-]making by a
non-governmental entity was deemed a violation of the
Article II, Section 1 non-delegation clause, not because,
as Petitioners would have this Court believe, it was a
delegation to a non-governmental entity, but because the
General Assembly failed to provide adequate standards
and limitations to guide that entity’s actions. That is not
the case here.
The involvement of a non-governmental body in the
General Assembly’s rule-making process is not new. In
Gima v. Hudson Coal Co., . . . 165 A. 850 ([Pa.] 1933), the
Pennsylvania Supreme Court upheld Rule 29 of the
Anthracite Mine Law wherein, rather than providing
specific safety standards for the storage and firing of
explosives, the General Assembly merely incorporated by
reference any rules provided by the manufacturers on those
matters since, as the Supreme Court quoted the Superior
Court, ‘[t]he General Assembly cannot be expected to enact
laws which shall in themselves keep abreast of every
advance of science and invention in the explosive line any
more than it can of itself determine when a working place is
free of gas and fit to work in . . . .’ Id., . . . at 853.
Certainly, in light of the high danger involved with
explosives, the General Assembly recognized its
limitations of time and knowledge and deferred the
drafting of the specifics of the law to a more
knowledgeable group. The same reasoning applies in
this case, where, the General Assembly’s purposes for
the PCCA include the provision of standards for the
protection of life, health, property and environment,
delegation of the details of the construction code may be
better left to ICC, as reviewed by the RAC and adopted
by L&I.
More recently, in Section 306(a.2) of the [Act], the
General Assembly dictated relative to medical
examinations conducted in order to determine the extent
of permanent impairment that:
[t]he 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
AEC - 6
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.’
(Emphasis added). Thus, similar to the use of ICC’s
codes as a guide for establishing Pennsylvania’s UCC,
the [AMA] is used as a guide to establish Pennsylvania’s
impairment ratings.
It is clear, in this case, that the General Assembly has
properly delegated its rule-making authority, and that it
delegated such authority to L&I, with definite and
reasonable standards.
Pennsylvania Builders, 4 A.3d at 222-23 (citations and footnote omitted; emphasis
added).6 Accordingly, the Majority’s conclusion that a private party’s involvement in
the rule-making process is unconstitutional directly contradicts the Pennsylvania
Builders decision.7
___________________________
ANNE E. COVEY, Judge
Judges Leadbetter and Simpson join in this dissenting opinion.
6
Because the result of the Majority’s decision effectively overrules this Court’s en banc
Pennsylvania Builders decision, it should explicitly say so.
7
See also Pa. Med. Soc’y v. Foster, 585 A.2d 595 (Pa. Cmwlth. 1991).
AEC - 7