IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, :

Petitioner :

 :

v. : No. 1395 C.D. 2017

 : Submitted: 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 OPINION 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 issued by a 

Workers’ Compensation Judge (WCJ). The WCJ had granted a Modification 

Petition 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 using 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 Compensation 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 Act2(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) provided:

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 [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’ 

Compensation Appeal Board (Derry Area School District), 124 A.3d 406, 417 (Pa. 

Cmwlth. 2015) (Protz I), wherein we declared portions of Section 306(a.2) of the 

WC Act, which governed 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 Edition 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 IRE, 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, Employer 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 submitted proof of the 
4

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,3the WCJ granted Employer’s Modification 

Petition and modified Claimant’s disability status from temporary total to partial,

effective 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 4th Edition of the 

AMA Guides, given the obvious impact of [Protz I], which 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, Protz 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 

right 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 using 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. Citing Protz II, 

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

arguments as Employer here. There, 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. (Exelon 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

Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1551(a)(1),7the 

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. We 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 because 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 Order of the Workers’ Compensation Appeal 

Board, dated September 6, 2017, is AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge