IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania

, : Petitioner :

:

v. : No. 1395 C.D. 2017

: Submitt ed : September 13, 2018 Workers’ Compensation Appeal : Board (Moore)

, : Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM O PINION BY JUDGE COHN JUBELIRER FILED: October 11, 2018

The Commonwealth of Pennsylvania (Employer) seeks review of an Order of
the Workers’ Compensation Appeal Board (Board), which based upon the Supreme
Court’s holding in Protz v. Workers’ Compensation Appeal Board (Derry Area
School District) , 161 A.3d 827 (Pa. 2017) ( Protz II ), reversed a decision i ssued by a
Workers’ Compensation Judge (WCJ) . The WCJ had granted a M odification

P etition filed by Employer seeking to modify Katherine Moore’s (Claimant) status
from total to partial disability based upon an impairment rating evaluation (IRE)2

performed u sing the Fourth Edition of the American Medical Association’s (AMA)
Guides to the Evaluation of Permanent Impairment ( Guides ). While the appeal was
pending before the Board, the Supreme Court issued its decision in Protz II . Citing

Protz II , the Board reversed the WCJ Decision and reinstated Claimant’s total
disability status as of the date of the IRE. Because this matter is controlled by our

recent decision in Dana Holding Corporation v. Workers’ Compensation Appeal
Board ( Smuck )

, __ A.3d __, (Pa. Cmwlth.

, No. 1869 C.D. 2017, filed Oct. 11 , 2018)
(en banc), 1 we affirm

. The relevant facts of this case are not in dispute. Claimant suffered a work
injury on August 27, 2013 , which Employer acknowledged through the issuance of
a Notice of Comp ensation Payable, describing the injury as a fracture to her left tibia
and fibula. After receiving 104 weeks of temporary total disability benefits,
Employer requested Claimant submit to an IRE pursuant to Section 306(a.2)(1) of
the Workers’ Compensation Act 2 (WC Act). Employer submitted a request for

1 This matter was scheduled to be argued on the same date as Dana Holding , but was submitted on briefs after Claimant’s counsel requested a continuance.

2 Act of June 2, 1915, P.L. 736, as amended , added by Section 4 of the Act of June 24, 1996, P.L. 350, 77 P.S. § 511.2(1)

, invalidated by Protz II . Section 306(a.2)(1) provid ed:

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 insu rer 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 th is 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 th e department, pursuant to the most recent edition of the [AMA Guides].

77 P.S. § 511.2(1).3

designation of a physician to perform the IRE on August 31, 2015. On September
10, 2015, the Pennsylvania Department of Labor & Industry, Bureau of Workers’
Compensation, issued a Notice designating Janak Doshi, M.D.

, as the IRE physician.
Eight days later, this Court issued its decision in Protz v. Workers’
Comp ensation Appeal B oar d (Derry Area Sch ool Dist rict ) , 124 A.3d 406, 417 (Pa.
Cmwlth. 2015) ( Protz I

), wherein we declared portions of Section 306(a. 2) of the
WC Act, which govern ed IREs , unconstitutional. Specifically, we held that the
language in Section 306(a.2)

– that IREs were to be performed using “the most recent

edition of the [ AMA Guides ]”

– was an unconstitutional delegation of legislative
powers “insofar as it purport[ed] to adopt a new version of the . . . Guides ” without
legislative review or oversight. Protz I , 124 A.3d at 417. Because the Fourth Edition

of the Guides was in effect at the time Section 306(a.2) was enacted, we vacated the
Board’s decision and remanded the matter for an IRE using that edition. Id.

In accordance with Protz I

, the IRE physician here completed the necessary
training to perform IREs using the Fourth Ed ition of the Guides on October 18, 2015,
and evaluated Claimant on November 13, 2015. Based upon his evaluation, Dr.
Doshi opined Claimant reached maximum medical improvement and had a whole
person impairment rating of 15 percent. Employer, citing the IR E, filed its
Modification Petition on December 23, 2015 , seeking to modify Claimant’s
disability status from total to partial disability

. Claimant denied the allegations, and
the matter was assigned to a WCJ.
In support of its Modification Petition, Empl oyer submitted the deposition
testimony of Dr. Doshi. Claimant objected to Dr. Doshi’s testimony on the ground
that the doctor was not qualified to conduct IREs under the Fourth Edition of the

Guides . The WCJ overruled the objection after Employer submit ted proof of the4

physician’s completion of training. Claimant did not testify and presented no

medical evidence on her own behalf.
The WCJ accepted Dr. Doshi’s testimony as credible. Because Dr. Doshi
opined that Claimant’s whole body impairment was less than 50 percent, pursuant
to Section 306(a.2)(2) of the WC Act, 3 the WCJ granted Employer’s Modification

Petition and modif

ied Claimant’s disability status from temporary total to partial

, effect ive the date of the IRE.
Claimant filed a timely appeal with the Board , wherein she continued to
challenge Dr. Doshi’s qualifications to perform the IRE

. She also argued that
“assuming Dr. Doshi was qualified to perform an IRE under the 4 th Edition of the

AMA Guides , given the obvious impact of [ Protz I ], whi ch is presently pending
before the Supreme Court of Pennsylvania, no decision on this matter should have
been issued until the Supreme Court issues its decision.” (Reproduced Record
(R.R.) at 23a

- 24a.)
While the appeal was pending before the Board, Pro tz II was decided. The
Supreme Court affirmed this Court’s determination that Section 306(a.2) was an
unconstitutional delegation of legislative authority; however, unlike this Court, it
found the offending language was not severable from the rest of the WC Act.

Protz II , 161 A.3d at 841. Accordingly, it struck Section 306(a.2) from the WC Act
in its entirety. Id.
Citing the Supreme Court’s decision in Protz II , the Board issued its Opinion
and Order on September 6, 2017, reversing the WCJ’s Decision and Order.

3 Section 306(a.2)(2) provided that a claimant “shall be presumed to be totally disabled” if an IRE showed an impairment rating equal to or greater than 50 percent . 77 P.S. § 511.2(2)

, invalidated by Protz II

. If an impairment rating was less than 50 percent, the claimant was considered partially disabled. Id.5

Employer filed a timely Petition for Review of the Board’s Order

, 4 raising

three issues : (1) whether Claimant waived arguing that Protz II should be applied
retroactively because she did not timely raise a constitutional challenge;
(2) whether, alternatively, the Board erred in applying Protz II retroactively; and
(3) whether retroactive application of Protz II violates Employer’s constitutional
righ t to the “due course of law” under the Remedies Clause of Article I, Section 11
of the Pennsylvania Constitution. 5

In our recent decision in Dana Holding , we addressed and rejected these same
arguments. In Dana Holding

, the claimant underwent an IRE us ing the Sixth Edition

of the Guides , but following Protz I , a new IRE was performed using the Fourth

Edition of the Guides . The WCJ granted the employer’s modification petition based
upon this IRE . While on appeal to the Board, Protz II was decided. Cit ing Protz II

, the Board reversed the WCJ’s decision. The employer appealed

, making the same
arguments as Employer here. T here, we held that, pursuant to Section 703(a) of the
Administrative Agency Law, 2 Pa. C.S. § 703(a), 6 and Rule 1551(a)(1) of the

4 Our “standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence.” Thompson v. Workers’ Comp. Appeal Bd. (Exe lon Corp.)

, 168 A.3d 408, 412 n.3 (Pa. Cmwlth. 2017).

5 Article I, Section 11 of the Pennsylvania Constitution provides:

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

Pa. Const. art. I , § 11 (emphasis added)

.

6 Section 703(a) of the Administrative Agency Law provides, in pertinent part, “A party who proceeded before a Commonwealth agency under the terms of a particular statute shall not be precluded from questioning the validity of the statute in the appeal .” 2 Pa. C.S. § 703(a).6

Pen nsylvania Rules of Appellate Procedure, Pa.R.A.P. 1551(a)(1), 7 the
constitutionality of a statute does not need to be raised before the administrative
agency in order to preserve the issue on appeal. Dana Holding , __ A.3d at __, slip
op. at 14

- 15. W e further held that Protz II should apply to cases, such as this , where

the IRE was not final because it was still being challenged on appeal. Id.

, __ A.3d
at __, slip op. at 8

- 11. Finally, we held the due course of law protected only vested
rights, and be cause the IRE was not final, the employer had no vested right. Id.

, __ A.3d at __, slip op. at 12

- 13.

Because this matter is controlled by our holding in Dana Holding , we affirm

the Board’s Order.

_____________________________________ RENÉE COHN JUBELIRER, Judge

7 Rule 1551(a)(1) provides

, “No question shall be heard or considered by the court which was not raised before the government unit except: (1) Questions involving the validity of a statute.” Pa.R.A.P. 1551(a)(1).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, : Petitioner :

:

v. : No. 1395 C.D. 2017

: Workers’ Compensation Appeal : Board (Moore), : Respondent :

O R D E R

NOW

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

_____________________________________ RENÉE COHN JUBELIRER, Judge