Protz, M. v. WCAB (Derry SD) Apl of: Derry SD

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IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
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.
: ARGUED: November 1, 2016
APPEAL OF: DERRY AREA SCHOOL
DISTRICT
OPINION
JUSTICE WECHT DECIDED: JUNE 20, 2017
Section 306(a.2) of the Workers' Compensation Act allows employers to demand
that a claimant undergo an impairment -rating evaluation (IRE), during which a physician
must determine the "degree of impairment" that is due to the claimant's compensable
injury. See 77 P.S. § 511.2(1). In order to make this assessment, the Act requires
physicians to apply the methodology set forth in "the most recent edition" of the
American Medical Association (AMA) Guides to the Evaluation of Permanent
Impairment. Id. In these consolidated appeals, we consider whether this mandate
violates the constitutional requirement that all legislative power "be vested in a General
Assembly, which shall consist of a Senate and a House of Representatives." PA.
CONST. art. II, § 1. We hold that it does.
In 2007, Mary Ann Protz sustained a work -related knee injury. Shortly thereafter,
her employer, Derry Area School District (Derry), voluntarily began paying temporary
total disability benefits. In October 2011, Protz underwent an IRE at Derry's request.
The IRE physician evaluated Protz and assigned to her a 10% impairment rating based
upon the Sixth Edition of the American Medical Association Guides to the Evaluation of
Permanent Impairment (the Guides).' Because Protz's impairment rating was less than
50%, Derry filed a modification petition seeking to convert Protz's disability status from
total to partial-the effect of which would be to limit the duration that Protz could receive
workers' compensation benefits.2 See 77 P.S. § 511.2(2) (providing that a claimant with
"a threshold impairment rating that is equal to or greater than fifty per centum" is
presumed to be totally disabled); 77 P.S. § 511.2(7) (limiting partial disability payments
1
When Section 306(a.2) was enacted in 1996, the Fourth Edition of the Guides
was the "most recent edition." Since then, the Guides have undergone two major
revisions, the Fifth Edition (in 2001) and the Sixth Edition (in 2008).
2
an employer requests an IRE within sixty days of the claimant's receipt of 104
If
weeks of total -disability benefits, and the IRE yields an impairment rating of less than
50%, the IRE is self-executing, meaning that the claimant's disability status can be
modified from total to partial without the involvement of a Workers' Compensation
Judge. 77 P.S. § 511.2(1)-(2). Because Derry requested the instant IRE well beyond
that timeframe, Derry could not automatically modify Protz's disability status. See
Gardner v. W.C.A.B. (Genesis Health Ventures), 888 A.2d 758 (Pa. 2005).
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to five hundred weeks). After holding a hearing on Derry's modification petition, a
Workers' Compensation Judge (WCJ) ruled that Protz's whole -body impairment was
less than 50%, and accordingly granted the petition.
Protz appealed to the Workers' Compensation Appeal Board, arguing that the
General Assembly unconstitutionally delegated to the AMA the authority to establish
criteria for evaluating permanent impairment. See PA. CONST. art. II, § 1 ("[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."). The Board rejected
Protz's constitutional argument and affirmed the WCJ's decision.
Protz appealed to the Commonwealth Court, where she again argued that
Section 306(a.2) of the Act violates Article II, Section 1 of the Pennsylvania Constitution.
The Commonwealth Court, sitting en banc, reversed the Board's decision. The en banc
panel agreed with Protz that Section 306(a.2)'s requirement that physicians use "the
most recent edition" of the Guides violates Article II, Section 1. Writing for the four -
judge majority, Senior Judge Dan Pellegrini recited the basic principle that the General
Assembly alone has the power to make laws, and it cannot constitutionally delegate that
power to any other branch of government or to any other body. Protz v. W.C.A.B.
(Derry Area Sch. Dist.), 124 A.3d 406, 412 (Pa. Cmwlth. 2015).
The court acknowledged that, despite this seemingly broad prohibition, "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 establishes primary standards and imposes
upon others the duty to carry out the declared legislative policy in accordance with the
general provisions of the enabling legislation." Id. at 413 (citing Blackwell v.
Commonwealth, State Ethics Commission, 567 A.2d 630, 637 (Pa. 1989)). The court
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explained that, when the legislature chooses to so delegate, two critical limitations
apply: first, "the basic policy choices must be made by the [I]egislature;" and second,
"the legislation must contain adequate standards which will guide and restrain the
exercise of the delegated administrative functions." Id. (citing Gilligan v. Pa. Horse
Racing Commission, 422 A.2d 487, 489 (Pa. 1980)).
Applying this test, the Commonwealth Court concluded that "the Act is wholly
devoid of any articulations of public policy governing the AMA," and that the Act lacks
"adequate standards to guide and restrain the AMA's exercise" of its delegated power to
create a methodology for grading impairment. Id. at 415. Instead, the court remarked,
the General Assembly bestowed upon the AMA "carte blanche authority to implement
[the AMA's] own policies and standards," which are then automatically adopted, sight
unseen. Id. at 416.
The court went on to explain that, even if the General Assembly had included
"adequate standards" to "guide and restrain" the AMA's exercise of delegated authority,
Section 306(a.2) still would be unconstitutional because the AMA is a private
organization. Along these lines, the court noted that:
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. 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.
Id.
Rather than striking all of Section 306(a.2), or undertaking a severability analysis,
the Commonwealth Court declared the law unconstitutional only "insofar as it
proactively approved versions of the AMA Guides beyond the Fourth Edition without
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review." Id. Consistent with that narrow remedy, the court remanded the instant matter
to the WCJ with instructions to apply the Fourth Edition of the Guides, the version in
existence when the General Assembly enacted Section 306(a.2) in 1996.
Judges Anne Covey and Robert Simpson each authored dissenting opinions. In
Judge Simpson's view, Section 306(a.2) withstands constitutional scrutiny in light of the
fact that "the General Assembly delegated initial impairment ratings to an independent,
Pennsylvania -licensed, board -certified, clinically -active physician," not to the AMA itself.
Id. at 417 (Simpson, J., dissenting). Judge Simpson also maintained that, because it
would be impractical to expect the legislature to establish and constantly revise a set of
standards for evaluating physical impairment, "the General Assembly may rely on the
medical expertise of the AMA, a well -recognized independent authority, in expressing
current, best -practice medical knowledge." Id. at 420. Finally, Judge Simpson
observed that "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." Id. at 419 (citing Madrid v.
St. Joseph Hosp., 928 P.2d 250 (N.M. 1996) (rejecting a non -delegation challenge
involving the New Mexico legislature's adoption of "the most recent edition" of the
Guides)). Judge Covey joined Judge Simpson's dissent and authored a separate
dissent addressing the majority's alternative holding that all delegations to private
entities are unconstitutional.
Both parties filed petitions for allowance of appeal with this Court, which we
granted. Derry takes issue with the Commonwealth Court's conclusion that the General
Assembly's prospective adoption of "the most recent edition" of the Guides violates
Article II, Section 1, whereas Protz argues that the Commonwealth Court, after finding
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Section 306(a.2) to be unconstitutional, erred in remanding her case to the WCJ for
application of the Fourth Edition of the Guides.
We begin with the non -delegation issue, as to which our standard of review is de
novo and our scope of review plenary. City of Phila. v. Fraternal Order of Police Lodge
No. 5 (Breary), 985 A.2d 1259, 1269 n.13 (Pa. 2009). Because the parties' arguments
largely reflect the views expressed in the majority and dissenting opinions below, we
need not recite them at length. In short, Derry argues that the General Assembly is free
to adopt current and future standards that are published by "a well -recognized
independent authority." Brief for Derry at 28 (quoting Protz, 124 A.3d at 420 (Simpson,
J., dissenting)). Protz, on the other hand, maintains that Section 306(a.2) violates the
non -delegation doctrine embodied in our Constitution because it gives the AMA
unfettered discretion over Pennsylvania's impairment -rating methodology. See Brief for
Protz at 16.
Article II, Section 1 of the Pennsylvania Constitution states 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." PA. CONST. art. II, § 1. That is
why, when the General Assembly empowers some other branch or body to act, our
jurisprudence requires "that the basic policy choices involved in 'legislative power'
actually be made by the [I]egislature as constitutionally mandated." Tosto v. Pa.
Nursing Home Loan Agency, 331 A.2d 198, 202 (Pa. 1975). This constraint serves two
purposes. First, it ensures that duly authorized and politically responsible officials make
all of the necessary policy decisions, as is their mandate per the electorate. Wm. Penn
Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 291 (Pa. 1975) (plurality
opinion). And second, it seeks to protect against the arbitrary exercise of unnecessary
and uncontrolled discretionary power. Id.
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At the heart of the non -delegation doctrine, which we have described as a
"natural corollary" to the text of Article II, Section 1, is the tenet that the General
Assembly cannot delegate "to any other branch of government or to any other body or
authority" the power to make law. Blackwell, 567 A.2d at 636; State Bd. of Chiropractic
Exam'rs v. Life Fellowship of Pa., 272 A.2d 478, 480 (Pa. 1971). Or, as John Locke put
it, legislative power consists of the power "to make laws, and not to make legislators."
JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 87 (R. Cox ed.1982). Indeed, the rule is
essential to the American tripartite system of representative government. The framers
of the Constitution believed that the integrity of the legislative function was vital to the
preservation of liberty. See Dep't of Transp. v. Ass'n of Am. Railroads, U.S. ,
135 S. Ct. 1225, 1237 (2015) (Alito, J., concurring) ("The principle that Congress cannot
delegate away its vested power exists to protect liberty."); see also The Federalist No.
47, at 301 (J. Cooke ed. 1961) (J. Madison) ("The accumulation of all powers,
legislative, executive, and judiciary, in the same hands . . . may justly be pronounced
the very definition of tyranny.").
Although our Constitution generally forbids the delegation of "legislative power," it
nonetheless permits the General Assembly, in some instances, to assign the authority
and discretion to execute or administer a law. Blackwell, 567 A.2d at 637. When the
General Assembly does so, the Constitution imposes two fundamental limitations. First,
as mentioned, the General Assembly must make "the basic policy choices," and
second, the legislation must include "adequate standards which will guide and restrain
the exercise of the delegated administrative functions." Pennsylvanians Against
Gambling Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 418 (Pa. 2005); State
Bd. of Chiropractic Exam'rs, 272 A.2d at 481 (quoting Chartiers Valley Joint Sch. v. Cty.
Bd. of Sch. Dirs. of Allegheny Cty., 211 A.2d 487, 492-93 (Pa. 1965)). This means, to
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borrow Chief Justice Taft's oft -quoted expression, that the law must contain some
"intelligible principle to which the person or body authorized to [act] is directed to
conform." J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
In many non -delegation cases, this Court also has stressed the importance of
procedural mechanisms that serve to limit or prevent the arbitrary and capricious
exercise of delegated power. Tosto, 331 A.2d at 203; see W. Phila. Achievement
Charter Elementary Sch. v. Sch. Dist. of Phila., 132 A.3d 957, 966 (Pa. 2016). In Tosto,
for example, the statute at issue required that the administrative agency establish
neutral operating procedures, develop standardized documents, and give the public
notice of proposed agency rules and regulations before promulgating them. In
upholding the law, we described these elements as "important safeguard[s] against the
arbitrariness of ad hoc decision making." Tosto, 331 A.2d at 204.
Similarly, in William Penn, we upheld a tax enabling statute that delegated to the
judiciary the power to assess whether certain local taxes were "excessive or
unreasonable." Wm. Penn Parking Garage, Inc., 346 A.2d at 291. There, a plurality of
this Court found it significant that the General Assembly had assigned this task to the
courts, rather than to an administrative body, because the very structure of the judiciary
serves to protect against the arbitrariness of ad hoc decision making. In this regard, we
emphasized that a trial court operating under the statute "must explain the grounds of its
decision in a reasoned opinion which will serve as a precedent to guide decisions in
future cases," and that "trial courts are subject to careful review by appellate courts to
[e]nsure the general consistency of their actions with one another and to confine them
within their proper sphere." Id. at 291-92.
This Court's most recent non -delegation decision involved a provision in the
Public School Code, see 24 P.S. §§ 1-101 - 27-2702, that gave a five -member School
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Reform Commission (comprised mostly of individuals appointed by the Governor)
sweeping powers to improve the finances of distressed school districts. Among other
things, the law delegated to the School Reform Commission the authority to suspend
regulations of the State Board of Education and to suspend provisions of the Public
School Code. W. Phila. Achievement Charter Elementary Sch., 132 A.3d at 959. The
General Assembly placed only minor restrictions upon the Commission's authority.
First, the General Assembly put a few provisions of the Public School Code beyond the
reach of the Commission's suspension power, most of which related to local school -
board elections. Second, the General Assembly required that the Commission submit
annually a report to the Governor and the Education Committees of both the House and
the Senate detailing the progress made in fiscal and academic performance. Finally,
individual members of the Commission, as public employees, could be removed by the
Governor for "malfeasance or misfeasance." Id. at 971 (Baer, J., dissenting). This
Court held that the law violated the non -delegation doctrine because it did not include
concrete measures to channel the Commission's discretion to wield its suspension
power, nor did it include safeguards to protect against arbitrary, ad hoc decision making,
such as a requirement that the Commission hold hearings, allow for public notice and
comment, or explain the grounds for its suspensions in a reasoned opinion subject to
judicial review.
By any objective measure, the authority delegated to the AMA in Section
306(a.2) of the Workers' Compensation Act is even more broad and unbridled than that
of the School Reform Commission in West Philadelphia Achievement Charter
Elementary School. The General Assembly did not favor any particular policies relative
to the Guides' methodology for grading impairments, nor did it prescribe any standards
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to guide and restrain the AMA's discretion to create such a methodology.3 Without any
parameters cabining its authority, the AMA would be free to: (1) concoct a formula that
yields impairment ratings which are so inflated that virtually every claimant would be
deemed to be at least 50% impaired; or (2) draft a version of the Guides guaranteed to
yield impartment ratings so miniscule that almost no one who undergoes an IRE clears
the 50% threshold; or (3) do anything in between those two extremes. The AMA could
add new chapters to the Guides, or it could remove existing ones. It could even create
distinct criteria to be applied only to claimants of a particular race, gender, or
nationality.4
3
It is not even clear that the General Assembly, within the bounds of the
Constitution, could meaningfully "guide" the AMA's discretion over the Guides'
methodology. See Agency for Intl. Dev. v. Alliance for Open Soc'y Intl., Inc., 570 U.S.
, 133 S. Ct. 2321 (2013) (holding that the First Amendment prevents the government
from forcing a private organization to profess publicly a viewpoint not held by the
organization); Knox v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 132 S. Ct.
2277, 2288 (2012) ("The government may not . .compel the endorsement of ideas that
.
it approves."); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994) ("At the heart
of the First Amendment lies the principle that each person should decide for himself or
herself the ideas and beliefs deserving of expression, consideration, and adherence.").
Furthermore, because the use of the Guides is not unique to Pennsylvania law (or even
to workers' compensation law generally), it is doubtful that the AMA would take
marching orders from any one state legislature. See AM. MED. Ass'N, GUIDES TO THE
EVALUATION OF PERMANENT IMPAIRMENT 20 (6th ed. 2008) ("In the United States, 44
states, 2 commonwealths, and federal employee compensation systems (in about 90+%
of US jurisdictions) either mandate or recommend using the Guides to measure
impairment in workers' compensation claims.").
4
To be clear, we have no reason to suspect that the AMA has exercised its
authority in an arbitrary or unreasonable manner. Cf. Amicus Brief for The Insurance
Federation of Pennsylvania & The American Insurance Association at 17 (arguing that
the Commonwealth Court's opinion below portrays the AMA as "some shady,
untrustworthy enterprise" and "reflects a surprising hostility towards the medical
profession"). Our Constitution restricts the General Assembly's ability to delegate
legislative authority regardless of the manner in which the recipient wields it. That the
AMA has opted to use its powers for good, so to speak, is no antidote.
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Consider also that the AMA could revise the Guides once every ten years or
once every ten weeks. If the AMA chooses to publish new editions infrequently,
Pennsylvania law may fail to account for recent medical advances. By contrast,
excessive revisions would likely pose severe administrative headaches, inasmuch as
the Guides automatically have the force and effect of law once published. As these
hypotheticals illustrate, the General Assembly gave the AMA de facto, unfettered control
over a formula that ultimately will determine whether a claimant's partial -disability
benefits will cease after 500 weeks.
Equally problematic, the General Assembly did not include in Section 306(a.2)
any of the procedural mechanisms that this Court has considered essential to protect
against "administrative arbitrariness and caprice." Tosto, 331 A.2d at 203. The General
Assembly did not, for example, require that the AMA hold hearings, accept public
comments, or explain the grounds for its methodology in a reasoned opinion, which then
could be subject to judicial review.5 Further, the AMA physicians who author the Guides
are, of course, not public employees who may be subject to discipline or removal.
5
To the contrary, the AMA's revision process has been denounced for its lack of
transparency. In a 2004 article, a group of physicians who authored a chapter of the
Fifth Edition of the Guides offered the following critique.
The paucity of research on the AMA system is striking, given the fact that
evaluations based on it determine the allocation of billions of dollars in
medical and wage replacement payments. In the absence of scientific
data, the AMA system relies almost exclusively on the opinions of panels
of medical consultants. Unfortunately, no details have been published
about how the expert panels were selected or the processes they followed
to reach decisions about impairment. Moreover, since several different
groups of experts contributed to the AMA Guides[,] there are significant
inconsistencies throughout the text. The combination of inadequate
validation research and ambiguity regarding the expert panels makes it
difficult for us or any other observers to determine which elements of the
AMA system are well substantiated, and which ones need significant
revision.
(continued... )
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Echoing Judge Simpson's dissent, Derry argues that the General Assembly
restrained the AMA's authority by mandating that that all IREs be performed by a
Pennsylvania -licensed, clinically active physician. See Brief for Derry at 27. We fail to
see how this does anything to prevent the AMA from acting arbitrarily. Again, Section
306(a.2) provides that "[t]he degree of impairment shall be determined based upon an
evaluation by a physician . . . pursuant to the most recent edition of the [AMA] 'Guides
to the Evaluation of Permanent Impairment." 77 P.S. § 511.2(1). Thus, the evaluating
physician, who is constrained by law to follow the Guides, has no power to limit the
AMA's delegated authority.
We also find unavailing Derry's suggestion that the General Assembly's
prospective adoption of future editions of the Guides constitutes a "policy decision" to
use the "the most up-to-date medical knowledge when making impairment
assessments." Brief for Derry at 29, 33 (arguing that that the General Assembly made
the "policy decision" to "apply the most up-to-date standards reflecting the most current
medical thinking"). As an initial matter, we question Derry's portrayal of the Guides as
merely a collection of medical knowledge. See Ellen Smith Pryor, Flawed Promises: A
Critical Evaluation of the American Medical Association's Guides to the Evaluation of
Permanent Impairment, 103 HARV. L. REV. 964 (1990) (stating that the Guides, "like any
impairment rating scheme, [rest] in large part on important and difficult normative
judgments"). More importantly, Derry's contention distills to a tautology: that the non -
delegation doctrine, which exists to prevent the General Assembly from delegating its
lawmaking authority, is not violated whenever the General Assembly "decides" to
(... continued)
James P. Robinson, Dennis C. Turk & John D. Loeser, Pain, Impairment, and Disability
in the AMA Guides, 32 Johns. L. MED. & ETHICS 315-16 (2004) (footnote omitted).
[J -100A-2016 and J -100B-2016] - 12
delegate its lawmaking authority. Because this reasoning would render the non -
delegation doctrine a nullity, we must reject it.
This case involves one additional wrinkle not present in West Philadelphia
Achievement Charter Elementary School or in Tosto. Here, unlike in those cases, the
General Assembly delegated authority to a private entity, not to a government agency or
body. Conceptually, this fact poses unique concerns that are absent when the General
Assembly, for instance, vests an executive -branch agency with the discretion to
administer the law. One such concern is that private entities are isolated from the
political process, and, as a result, are shielded from political accountability.6 Because of
this, it is perhaps unsurprising that our precedents have long expressed hostility toward
delegations of governmental authority to private actors. Hetherington v. McHale, 329
6
With regard to the federal non -delegation doctrine, at least one United States
Supreme Court Justice rejected the notion that the legislature can delegate authority to
entities that are not accountable to the public.
If rulemaking can be entirely unrelated to the exercise of judicial or
executive powers, foresee all manner of "expert" bodies, insulated from
I
the political process, to which Congress will delegate various portions of
its lawmaking responsibility. How tempting to create an expert Medical
Commission (mostly M.D.'s, with perhaps a few Ph.D.'s in moral
philosophy) to dispose of such thorny, "no -win" political issues as the
withholding of life-support systems in federally funded hospitals, or the use
of fetal tissue for research. This is an undemocratic precedent that we
set-not because of the scope of the delegated power, but because its
recipient is not one of the three Branches of Government.
Mistretta v. United States, 488 U.S. 361, 422 (1989) (Scalia, J., dissenting).
Although we do not know for certain why the General Assembly delegated to the
AMA the task of creating and revising impairment -rating standards, it is not difficult to
imagine that it simply viewed the never-ending task of adopting new impairment -rating
standards as the type of "no -win" political issue (in the nonpartisan sense) that Justice
Scalia described. See DAVID B. TORREY & ANDREW E. GREENBERG, WEST'S PA. PRAC.,
WORKERS' COMPENSATION § 6:51.70 (suggesting that the General Assembly sought to
avoid "the thorny political issue of partial disability determination every time the AMA
issued a new guidebook").
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A.2d 250, 254 (Pa. 1974) (holding that the Constitution "prohibits delegation to private
groups of the power to make governmental appointments"); Olin Mathieson Chem.
Corp. v. White Cross Stores, Inc., No. 6, 199 A.2d 266, 267-68 (Pa. 1964) (holding that
the General Assembly may delegate regulatory power to "responsible governmental
agencies," but not to private persons). Venerable opinions of the Supreme Court of the
United States have done so as well. See e.g., Carter v. Carter Coal Co., 298 U.S. 238,
311 (1936) ("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."); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 553
(1935) (remarking that the National Industrial Recovery Act, which conferred upon
private parties the authority to promulgate rules of "fair competition," represented
"delegation running riot") (Cardozo, J., concurring).
That said, our precedents to date have not unequivocally supported the
Commonwealth Court's view that the General Assembly cannot, under any set of
circumstances, delegate authority to a private person or entity. See Protz, 124 A.3d at
416. Notably, this Court occasionally has suggested in non -delegation cases that the
traditional constitutional requirements (i.e., "policy choices" and "adequate standards")
are necessary whenever the General Assembly delegates its authority "to any other
branch of government or to any other body or authority." Blackwell, 567 A.2d at 636
(emphasis added). For example, this Court has held unconstitutional a law that
required all chiropractors seeking to renew their licenses to attend either a two-day
conference held by the Pennsylvania Chiropractic Society (a private organization), or
another "equivalent educational conference." State Bd. of Chiropractic Exam'rs, 272
A.2d at 479. In striking down that statute on non -delegation grounds, we recited the
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general rule that the General Assembly must provide adequate standards to guide and
restrain the exercise of delegated administrative functions. Id. at 481 (quoting Chartiers
Valley Joint Sch., 211 A.2d at 492-93). Put another way, we held that the statute in
State Board of Chiropractic Examiners was unconstitutional because it delegated
unchecked and unrestrained authority over chiropractic continuing education, not
because the Chiropractic Society was a private organization. Id. at 481.
Although we highlight this tension in our jurisprudence, we need not resolve it
today. As we have explained, Section 306(a.2) could not withstand constitutional
scrutiny even if the AMA were a governmental body. See supra, at 9-11 (comparing the
facts of this case to those in West Philadelphia Achievement Charter Elementary
School, 132 A.3d 957). We merely caution that our holding today should not be read as
an endorsement or rejection of the Commonwealth Court's view that the delegation of
authority to a private actor is per se unconstitutional. Nor do we foreclose the distinct
possibility that a more exacting form of judicial scrutiny is warranted when the General
Assembly vests private actors with regulatory or administrative powers.
Having determined that the General Assembly unconstitutionally delegated
lawmaking authority to the AMA, we now must consider whether the Commonwealth
Court erred in remanding this case to the WCJ with instructions to apply the Fourth
Edition of the Guides. Although the Commonwealth Court's rationale in this regard is
not entirely clear, it appears that the court's holding was based upon the fact that the
General Assembly, when it enacted Section 306(a.2) in 1996, could have incorporated
by reference the Fourth Edition of the Guides.
According to Protz, the Commonwealth Court should have struck down Section
306(a.2) in its entirety. Protz notes that "the plain language of Section 306(a.2) contains
no mention of the Fourth Edition of the AMA Guides; rather [it] simply mandates usage
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of the 'most recent edition." Brief for Protz at 18. Thus, Protz concludes, "the
Commonwealth Court essentially redrafted Section 306(a.2) in a manner that would, in
the court's view, pass constitutional muster." Id. By contrast, Derry argues that the
Commonwealth Court did not err in remanding to the WCJ with instructions to apply the
Fourth Edition of the Guides. Derry underscores that the Commonwealth Court
"believed that the primary flaw in the statute was not that it invoked [the Guides], but
that there was no policy review or guidance for determining whether the most 'recent'
edition should be applied." Brief for Derry at 44. Thus, Derry believes that the Fourth
Edition of the Guides should govern IREs moving forward.
At the outset, it is important to clarify that the non -delegation doctrine does not
prevent the General Assembly from adopting as its own a particular set of standards
which already are in existence at the time of adoption. However, for the reasons we
have explained, the non -delegation doctrine prohibits the General Assembly from
incorporating, sight unseen, subsequent modifications to such standards without also
providing adequate criteria to guide and restrain the exercise of the delegated authority.
Pennsylvanians Against Gambling Expansion Fund, Inc., 877 A.2d at 418.
In matters of statutory interpretation, the General Assembly has instructed us to
assume that it "does not intend to violate the Constitution of the United States or of this
Commonwealth." 1 Pa.C.S. § 1922(3). This means that, if a statute is reasonably
susceptible of two constructions, one that would render it of doubtful constitutionality
and one that would not, we must adopt the latter. See Bricklayers of W. Pa. Combined
Funds, Inc. v. Scott's Dev. Co., 90 A.3d 682, 692 (Pa. 2014) ("[C]ourts give statutes a
constitutional interpretation if that is reasonably possible.").
As a reminder, the relevant portion of Section 306(a.2) provides as follows:
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
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osteopathic equivalent and who is active in clinical practice for at least
twenty hours per week, chosen by agreement of the parties, or as
designated by the department, pursuant to the most recent edition of
the American Medical Association "Guides to the Evaluation of
Permanent Impairment."
77 P.S. § 511.2(1) (emphasis added).
Doubtless, most would understand this language to mean that the IRE physician
must use the edition of the Guides that is the most recent at the time of the examination.
See Stanish v. W.C.A.B. (James J. Anderson Const. Co.), 11 A.3d 569, 576 (Pa.
Cmwlth. 2010) (holding that the "most recent edition" of the Guides is the most recent
version in force at the time of the IRE). But, if the above language reasonably can be
understood to mean that physicians should use the edition of the Guides that was the
most recent edition when the General Assembly enacted Section 306(a.2) (i.e., the
Fourth Edition), we should adopt that construction instead. Bricklayers of W. Pa., supra.
Ultimately, however, we cannot accept that such a reading is a reasonable one.
It beggars belief that the General Assembly would have used the words "most recent
edition" when it really meant "Fourth Edition." Even more telling is that the General
Assembly, in other sections of the Workers' Compensation Act, explicitly stated that the
Fourth Edition of the Guides should govern. See 77 P.S. § 513(8)(i) -(iii) (providing that
the "Impairment Guides" should be used to calculate the percentage of hearing
impairment); 77 P.S. § 25.5 (defining the term "Impairment Guides" to mean "the
American Medical Association's Guides to the Evaluation of Permanent Impairment,
Fourth Edition"). This is important because we generally assume that, "where a section
of a statute contains a given provision, the omission of such a provision from a similar
section" signifies a different legislative intent. Fletcher v. Pa. Prop. & Cas. Ins. Guar.
Ass'n, 985 A.2d 678, 684 (Pa. 2009). The upshot of this is that we must construe the
"most recent edition" requirement to mean the most recent edition in force at the time of
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the IRE, a state of affairs that, for the reasons we have stated, violates the non -
delegation doctrine.
Having concluded that the requirement that IRE physicians use the most recent
version of the Guides is unconstitutional, we must decide whether it can be severed
from the Workers' Compensation Act. The Act contains a severability provision, 77 P.S.
§ 1022, and, as a rule, the individual provisions of all statutes presumptively are
severable. 1 Pa.C.S. § 1925. Nevertheless, we will decline to sever when, after the
void provisions are excised, the remainder of the statute is incapable of execution in
accordance with the General Assembly's intent. See Stilp v. Commonwealth, 905 A.2d
918, 972 (Pa. 2006).
Consistent with our holding, we must, at minimum, strike from Section 306(a.2)
the unconstitutional "most recent edition" requirement. As demonstrated below, such
references are pervasive.
(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 "Guidcs to the Evaluation of Pcrmancnt Impairmcnt."
(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
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Association "Guidcs to thc Evaluation of Permancnt 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.
(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 "Guidcs to thc Evaluation of Pcrmancnt
Impairment."
(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 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.
77 P.S. § 511.2 (footnotes omitted).
Although the prevalence of the offending language, of course, does not by itself
preclude severance, excising only this language would render the remainder of Section
306(a.2) incomprehensible. As the above provisions make clear, the Guides are what
provide critical context to the statute's otherwise hollow phrases, such as "the degree of
impairment." Id. Without the aid of the Guides (or some other similar methodology),
what could it possibly mean, for example, to say that a person has "a threshold
impairment rating that is equal to or greater than fifty per centum impairment"? Id.
We view Section 306(a.2) as a paradigmatic example of a law containing valid
provisions that are inseparable from void provisions. Consequently, we must strike
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Section 306(a.2), in its entirety, from the Act. See 1 Pa.C.S. § 1925 ("[P]rovisions of
every statute shall be severable . . . unless the court finds that the valid provisions of the
statute are so essentially and inseparably connected with, and so depend upon, the
void provision or application, that it cannot be presumed the General Assembly would
have enacted the remaining valid provisions without the void one.").
The Pennsylvania Constitution prevents the General Assembly from passing off
to another branch or body de facto control over matters of policy. As we have
explained, this is exactly what the General Assembly did in Section 306(a.2). Because
we must enforce Article II, Section 1 without consideration of the exigencies that arise or
"how trying our economic or social conditions become," we affirm the Commonwealth
Court's holding that Section 306(a.2) violates the non -delegation doctrine. Holgate
Bros. Co. v. Bashore, 200 A. 672, 675 (Pa. 1938). Unlike the Commonwealth Court,
however, we hold that Section 306(a.2) is unconstitutional in its entirety.
Order affirmed in part and reversed in part.
Justices Todd, Donohue, Dougherty and Mundy join the opinion.
Chief Justice Saylor files a concurring opinion.
Justice Baer files a dissenting opinion.
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