IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Leo DeLuca, :

Petitioner :

:

v. :

:

Cservak Management Services, LLC :

(Workers’ Compensation Appeal :

Board), : No. 238 C.D. 2022

Respondent : Submitted: August 5, 2022

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: December 22, 2022

Leo DeLuca (Claimant) petitions for review of the March 1, 2022 order 

of the Workers’ Compensation Appeal Board (Board) affirming the decision of the 

workers’ compensation judge (WCJ) to grant the requested modification of 

Claimant’s workers’ compensation benefits from total to partial disability. Upon 

review, we affirm.

I. Background

In July 2010, Claimant sustained work-related injuries in the form of 

midback, left arm/shoulder and neck sprain/strain while working for Cservak 

Management Services, LLC (Employer). WCJ Decision & Order, 5/26/21 (WCJ 
2

Decision), Finding of Fact (F.F.) 1, Certified Record (C.R.) at 17.1 By means of an 

amended notice of compensation payable, Employer accepted liability for payment 

of total disability benefits as of January 2015. F.F. 1; Board Decision & Order, 

3/1/22 (Board Decision) at 1, C.R. at 19. On November 7, 2019, a physician 

conducted an impairment rating evaluation (IRE) of Claimant pursuant to the Sixth 

Edition of the American Medical Association (AMA) Guides to the Evaluation of 

Permanent Impairment, Second Printing (Guides), which yielded a whole body

impairment rating of 28%. F.F. 5 & 7.2

In August 2020, Employer filed a modification petition, seeking to 

change Claimant’s disability status from total to partial on the basis of the November 

2019 IRE. F.F. 2. Claimant opposed the modification petition on the basis that the

Act of October 24, 2018, P.L. 714, No. 111 (Act 111), relating to IREs and 

modifications, is unconstitutional. In May 2021, the WCJ granted the requested 

modification, declaring Claimant’s change in disability status from total to partial 

effective as of November 7, 2019, the date of the IRE. Conclusion of Law (C.L.) 3; 

WCJ Decision at 6, C.R. at 20. The WCJ noted, however, that it lacked the authority 

to address Claimant’s constitutional objections to Act 111. C.L. 4. 

Claimant appealed to the Board, which affirmed. Board Decision at 1 

& 7, C.R. at 19 & 25. Noting that, like the WCJ, it lacked the authority to declare 

unconstitutional any portion of the Workers’ Compensation Act (WC Act),

3

the 

1 Citations to the certified record reference the pages of the PDF document, as the record 

is not internally paginated. 

2

In December 2020, the physician performing Claimant’s IRE submitted an addendum 

report opining that Claimant had reached maximum medical improvement as of November 2019. 

WCJ’s Decision and Order, 5/26/21, Finding of Fact 5.

3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
3

Board nevertheless observed that this Court previously rejected the same arguments 

levied by Claimant in support of his constitutional challenge. Id. at 3 & 6, C.R. at 

21 & 24 (citing Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada), 238 A.3d 551 

(Pa. Cmwlth. 2020); Pierson v. Workers’ Comp. Appeal Bd. (Consol Pa. Coal Co. 

LLC), 252 A.3d 1169 (Pa. Cmwlth. 2021), appeal denied, 261 A.3d 378 (Pa. 2021); 

Hutchinson v. Annville Twp. (Workers’ Comp. Appeal Bd.), 260 A.3d 360 (Pa.

Cmwlth. 2021), appeal denied, 279 A.3d 1180 (Pa. 2022)).

Claimant petitioned this Court for review.

II. Issues

Before this Court,

4 Claimant argues that the Board erred in affirming 

the modification of his disability status, because Act 111 is unconstitutional. See 

Claimant’s Br. at 8-9 & 13. Claimant contends that the “minor changes” effected 

by Act 111 fail to remedy the unconstitutionality of former Section 306(a.2) of the 

WC Act, formerly 77 P.S. § 511.2.

5

 Id. at 9 (citing Protz v. Workers’ Comp. Appeal 

Bd. (Derry Area Sch. Dist.), 161 A.3d 827 (Pa. 2017) (Protz II)). Claimant asserts

that Act 111’s reduction of the partial disability threshold from an impairment rating

of less than 50% to a rating of less than 35% fails to remediate the impermissible 

delegation of powers deemed unconstitutional by the Pennsylvania Supreme Court

in Protz II. Id. at 8-9. Claimant likewise maintains that Act 111’s designation of 

the Sixth Edition of the Guides in assessing whole body impairment fails to remedy 

4 This Court’s scope of review is limited to determining whether the WCJ’s necessary 

findings of fact are supported by substantial evidence, whether an error of law was committed, or 

whether constitutional rights were violated. Russell v. Workmen’s Comp. Appeal Bd. (Volkswagen 

of Am.), 550 A.2d 1364 (Pa. Cmwlth. 1988). 

5 Added by the Act of June 24, 1996, P.L. 350, formerly 77 P.S. § 511.2, repealed by Act 

111.
4

this constitutional defect. Id. at 9. Claimant also contends that Act 111 may not be 

applied retroactively to his case, as his July 2010 injury predates the Act’s October 

24, 2018 effective date, and workers’ compensation claims accrue on the date of 

injury. Id. at 10. Further, Claimant asserts that, assuming arguendo the 

constitutionality of Act 111 and its applicability to the present dispute, his November 

2019 IRE was nevertheless premature because Act 111 constitutes “new legislation 

imposing new restrictions on the receipt of benefits,” such that his IRE would have 

been appropriate only after receiving 104 weeks of full disability benefits after the 

passage of Act 111. Id. 

III. Discussion

In Protz v. Workers’ Compensation Appeal Board (Derry Area Sch. 

Dist.), 124 A.3d 406 (Pa. Cmwlth. 2015) (Protz I), aff’d in part, rev’d in part, Protz 

II, a claimant challenged the modification of her benefits from total to partial 

disability under former Section 306(a.2) of the WC Act, 77 P.S. § 511.2, on the basis 

that the provision unconstitutionally delegated legislative authority in contravention 

of article II, section 1 of the Pennsylvania Constitution.

6

 See Protz I, 124 A.3d at 

408 & 410-11. We agreed, holding that the challenged statute’s provision for use of 

the most recent edition of the Guides in evaluating the degree of impairment 

impermissibly delegated legislative authority to the AMA to establish the criteria for 

such evaluations. Id. at 410-15 (citing former Section 306(a.2)(1) of the WC Act, 

77 P.S. § 511.2). Thus, we deemed former Section 306(a.2) of the WC Act, 77 P.S. 

§ 511.2, unconstitutional “insofar as it proactively approved versions of the AMA 

Guides beyond the Fourth Edition without review”; we remanded the matter to the 

6

“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.
5

Board with instruction to remand to the WCJ to apply that edition to the dispute. Id. 

at 416. Our Supreme Court affirmed in part and reversed in part, holding that this 

Court erred in failing to strike former Section 306(a.2) in its entirety on the basis 

that the valid portions were inseparable from the constitutionally defective 

provisions. Protz II, 161 A.3d at 841. 

In response to Protz II, the General Assembly enacted Act 111 on 

October 24, 2018 to replace the unconstitutional provision with Section 306(a.3), 77 

P.S. § 511.3.7 Act 111 amended the WC Act by lowering the threshold impairment 

7 Section 306(a.3) provides, in pertinent part:

(1) When an employe has received total disability compensation 

pursuant to clause (a)[, referring to Section 306(a) of the WC Act, 

77 P.S. § 511,] for a period of one hundred and 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 and 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 Specialtiesapproved 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 [Guides,] 6th edition (second printing April 2009).

(2) If such determination results in an impairment rating that meets 

a threshold impairment rating that is equal to or greater than thirtyfive per centum impairment under the [Guides,] 6th edition (second 

printing April 2009), 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 thirty-five per centum impairment under 

the [Guides,] 6th edition (second printing April 2009), the employe 

shall then receive partial disability benefits under clause (b)[, 

referring to [former] Section 306(b) of the WC Act, 77 P.S. § 512,] 

provided, however, [t]hat no reduction shall be made until sixty 

days’ notice of modification is given.
6

rating for determining partial disability from less than 50% to less than 35%. 

Compare Section 306(a.3) of the WC Act, 77 P.S. § 511.3, with former Section 

306(a.2) of the WC Act, formerly 77 P.S. § 511.2. Act 111 also specified that IREs

shall be performed using the Sixth Edition of the Guides. See Section 306(a.3) of 

the WC Act, 77 P.S. § 511.3. 

Claimant asserts that Act 111 fails to remediate the delegation of 

legislative authority deemed unconstitutional by the Protz II Court. See Claimant’s 

Br. at 8-9. As we have repeatedly and consistently held in rejecting identical 

arguments in other matters, this assertion has no merit. In Pennsylvania AFL-CIO 

v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth. 2019), we upheld Act 111 against an 

identical constitutional challenge, reasoning as follows:

The non-delegation doctrine does not prohibit the General 

Assembly from “adopting as its own a particular set of 

standards which already are in existence at the time of 

adoption.” Protz II, 161 A.3d at 838 . . . . That is what the 

General Assembly did here—it adopted the Sixth Edition, 

second printing, which PA AFL-CIO admits was in 

existence when Section 306(a.3)[ of the WC Act, 77 P.S. 

§ 511.3,] was enacted, “as its own.” Id. When such an 

adoption occurs, the General Assembly is exercising its 

legislative and policy making authority by deciding that it 

is those particular standards that will become the law of 

this Commonwealth. It is not delegating its authority to 

legislate. The General Assembly made a policy decision 

regarding the standards that will apply to IREs in the 

Commonwealth going forward.

77 P.S. § 511.3(1), (2).
7

Pa. AFL-CIO, 219 A.3d at 316 (emphasis omitted).

8

 For the reasons already 

repeatedly articulated by this Court, Claimant’s constitutional challenge is 

meritless.

9

In addition, Claimant maintains that Act 111 is not applicable to his 

case because his injury predated the statute’s enactment. See Claimant’s Br. at 9-

10. Again, this Court has held repeatedly to the contrary in rejecting identical 

arguments:

8 Similarly, in Hutchinson v. Annville Township (Workers’ Compensation Appeal Board), 

260 A.3d 360, 366 (Pa. Cmwlth. 2021), appeal denied, 279 A.3d 1180 (Pa. 2022), we deemed 

meritless a claimant’s assertion that Act 111 was unconstitutional based on an identical argument

that its provision for IREs pursuant to the Sixth Edition of the Guides improperly delegated 

legislative authority to the AMA:

[The c]laimant misapprehends this Court’s analysis and holding in

[Protz I]. The flaw in former Section 306(a.2) [of the WC Act, formerly

77 P.S. § 511.2,] was that, unlike the replacement provision of Act 

111, it did not simply adopt a set of existing standards; rather, by 

mandating use of the most recent version of the Guides, it allowed 

the AMA to alter the standards at will without any legislative 

oversight. See Protz I, 124 A.3d at 416.

Hutchinson, 260 A.3d 360, 366 n.9.

9

In conjunction with his constitutional challenge, Claimant laments that, as with the 50% 

impairment rating threshold established by former Section 306(a.2) of the WC Act, the 35% 

threshold of Act 111 is “virtually impossible to reach[.]” Claimant’s Br. at 9. Claimant’s critique 

fails to appreciate that “for the benefit of claimants, the General Assembly [] specifically reduced 

the impairment rating necessary for a claimant’s status to be changed from 49% or lower to 34% 

or lower, making it more difficult for employers to change total disability status to partial disability 

status.” Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada), 238 A.3d 551, 562 (Pa. Cmwlth. 

2020) (emphasis added). Moreover, Claimant fails to elucidate why this advantageous change 

purportedly fails to remedy the unconstitutional aspects of former Section 306(a.2) of the WC Act, 

formerly 77 P.S. § 511.2. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (citations 

omitted) (holding that “where an appellate brief fails to provide any discussion of a claim with 

citation to relevant authority or fails to develop the issue in any other meaningful fashion capable 

of review, that claim is waived,” further stating that “[i]t is not the obligation of [an appellate court] 

. . . to formulate [an a]ppellant’s arguments for him”). 
8

While [the c]laimant . . . argues that he has a [vested] right 

to benefits as calculated at the time of injury, there are 

reasonable expectations under the [WC] Act that benefits 

may change. We acknowledge that a claimant retains a 

certain right to benefits until such time as he is found to be 

ineligible for them. However, claimants, such as the one 

in the matter before us, did not automatically lose anything 

by the enactment of Act 111. Act 111 simply provided 

employers with the means to change a claimant’s 

disability status from total to partial by providing the 

requisite medical evidence that the claimant has a whole 

body impairment of less than 35%, after receiving 104 

weeks of [temporary total disability] benefits.

Pierson, 252 A.3d at 1179; see also Hutchinson, 260 A.3d at 366 (rejecting a 

claimant’s assertion that Act 111’s applicability to injuries predating its enactment 

renders it improperly retroactive, holding that “the 104-week and credit provisions 

of Act 111 were explicitly given retroactive effect by the clear language used by the 

General Assembly”). Moreover, this Court has clarified that 

Section 3 of Act 111 does not evidence clear legislative 

intent that the entirety of Act 111 should be given 

retroactive effect. Instead, it appears the General 

Assembly intended that employers and insurers that relied 

upon former Section 306(a.2)[, formerly 77 P.S. § 511.2,] 

to their detriment by not pursuing other methods of a 

modification should not bear the entire burden of the 

provision being declared unconstitutional.

. . . .

That the General Assembly used specific language to give 

retroactive effect to these carefully selected individual 

provisions does not make the entirety of Act 111 

retroactive as the amendment lacks clear language to that 

effect. City of Warren [v. Workers’ Comp. Appeal Bd. 

(Haines)], 156 A.3d [371,] 376 [Pa. Cmwlth. 2017].
9

Rose Corp., 238 A.3d at 562 (footnote omitted). Thus, we conclude that Claimant’s 

contention that Act 111 is impermissibly retroactive is also meritless.

10

Claimant also contends that his November 2019 IRE was premature, as 

he had not yet received 104 weeks of total disability benefits following the enactment 

of Act 111 in October 2018. See Claimant’s Br. at 10. This argument is directly 

contrary to the express language of Act 111. Section 3(1) of Act 111 provides:

(1) For the purposes of determining whether an employee

shall submit to a medical examination to determine the

degree of impairment and whether an employee has

received total disability compensation for the period of

104 weeks under [S]ection 306(a.3)(1) of the [WC A]ct,

[77 P.S. § 511.3(1),] an insurer shall be given credit for 

weeks of total disability compensation paid prior to the 

effective date of this paragraph.

[11] This section shall not

be construed to alter the requirements of [S]ection

306(a.3) of the [WC A]ct.

Section 3(1) of Act 111 (emphasis added). Thus, “[t]hrough the use of very careful 

and specific language, the General Assembly provided employers/insurers with 

credit for the weeks of compensation, whether total or partial in nature, previously 

paid.” Rose Corp., 238 A.3d at 562 (holding that “[b]ecause [the c]laimant already 

10 Claimant also asserts that if limited to 500 weeks of partial disability benefits, this

benefits period should commence on November 7, 2019, the date of the IRE, as Claimant did not 

receive payment of partial disability benefits prior to the enactment of Act 111. See Claimant’s 

Br. at 11. However, the Board already affirmed the WCJ’s conclusion that November 7, 2019 

constituted the effective date for Claimant’s change in disability status from total to partial. See 

C.L. 3; Board Decision at 2 & 7, C.R. at 20 & 25. Thus, Claimant’s 500-week period of partial 

disability benefits began on that date. See Section 306(b) of the WC Act, 77 P.S. § 512(1). 

Therefore, Claimant’s contention is moot. 

11 “This 104 weeks is important because, under both the former and current IRE provisions, 

a claimant need not attend an IRE until after the claimant receives 104 weeks of total 

compensation.” Rose Corp., 238 A.3d at 561 (citing Section 306(a.3)(1) of the WC Act, 77 P.S. 

§ 511.3(1); former Section 306(a.2)(1) of the WC Act, formerly 77 P.S. § 511.2(1)). 
10

received 104 weeks of total disability benefits, under Section 306(a.3)(1), [the 

e]mployer [could] seek a new IRE,” as the employer was entitled to credit for the 

104 weeks of total disability benefits paid prior to changing the claimant’s disability 

status to partial based on a 2013 IRE conducted under former Section 306(a.2) of 

the WC Act, formerly 77 P.S. § 511.2); see also Pierson, 252 A.3d at 1179-80 

(stating that “the General Assembly made it clear in Act 111 that weeks of 

[temporary total disability] . . . paid by an employer/insurer prior to the enactment 

of Act 111 count as credit against an employer’s new obligations under Act 111,” as 

“it stated in plain language it was doing so”).

Accordingly, for the foregoing reasons, we affirm.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Leo DeLuca, :

Petitioner :

:

v. :

:

Cservak Management Services, LLC :

(Workers’ Compensation Appeal :

Board), : No. 238 C.D. 2022

Respondent :

O R D E R

AND NOW, this 22nd day of December, 2022, the March 1, 2022 

decision of the Workers’ Compensation Appeal Board is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge