IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lauren M. Sanders, :

Petitioner :

:

v. :

:

Recordtrak, LLC (Workers’ :

Compensation Appeal Board), : No. 163 C.D. 2022

Respondent : Submitted: November 14, 2022

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge 

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: December 12, 2022

Lauren M. Sanders (Claimant) petitions this Court for review of the 

Workers’ Compensation (WC) Appeal Board’s (Board) January 26, 2022 order 

affirming WC Judge (WCJ) Bonnie Callahan’s (WCJ Callahan) decision that 

granted Recordtrak, LLC’s (Employer) Modification Petition, thereby modifying 

Claimant’s WC benefits from total disability to partial disability status. Claimant 

presents two issues for this Court’s review: (1) whether Act 1111is an 

unconstitutional delegation to the American Medical Association (AMA) and is in 

1 Act of October 24, 2018, P.L. 714, No. 111 (Act 111). Act 111 repealed the 

unconstitutional impairment rating evaluation (IRE) provision and replaced it with a new IRE 

provision, Section 306(a.3) of the WC Act, Act of June 2, 1915, P.L. 736, as amended, added by 

Section 1 of Act 111, 77 P.S. § 511.3, that was virtually identical to the prior provision and 

effective immediately. Act 111 specifically incorporated and adopted the use of the American 

Medical Association’s “Guides to the Evaluation of Permanent Impairment,” 6th edition (second 

printing April 2009), for performing IREs.
2

violation of article II, section 1 of Pennsylvania’s Constitution;

2

and (2) whether the 

AMA’s “Guides to the Evaluation of Permanent Impairment,” 6th edition (second 

printing April 2009) (AMA Guides, 6th edition) insufficiently account for disabling 

pain or mental illness flowing from a work injury or medical treatment and, thus, do 

not provide a constitutional basis for assessing disability, and violate article II,

section 1 and/or article I, section 11 of Pennsylvania’s Constitution.

3

 After review, 

this Court affirms.

On August 22, 2016, while in the course of her employment with 

Employer, Claimant sustained a work-related repetitive motion injury. On 

November 27, 2017, WCJ Debra Bowers (WCJ Bowers) approved a stipulation of 

the parties and awarded disability benefits for the injury described as a bilateral 

injury to wrists/arms (carpal tunnel) (status post-surgery) and aggravation of a 

preexisting cervical degenerative condition resulting in a decompression and 

anterior fusion C3-C7 (status post-surgery) involving a neck and shoulder injury. 

On June 20, 2017, the Pennsylvania Supreme Court issued its decision 

in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 161 

A.3d 827 ( Pa. 2017), holding that the impairment rating evaluation (IRE) provisions

contained in Section 306(a.2) of the WC Act (Act)4 violated the nondelegation 

doctrine of the Pennsylvania Constitution and striking Section 306(a.2) in its entirety 

2 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.”).

3 Claimant inadvertently refers to article 1, section 10 of the Pennsylvania Constitution, 

PA. CONST. art. I, § 10 (relating to initiation of criminal proceedings). However, Claimant quotes 

from article I, section 11 of the Pennsylvania Constitution, PA. CONST. art. I, § 11 (“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.”). See Claimant Br. at 15 n.4. 

4 Section 306(a.2) of the Act, added by the Act of June 24, 1996, P.L. 350, formerly 77 P.S. 

§ 511.2, was repealed by Act 111, and replaced by Section 306(a.3) of the Act.
3

from the Act. The Pennsylvania legislature subsequently enacted Act 111, which

became effective October 24, 2018. Act 111 repealed Section 306(a.2) of the Act, 

and reestablished the IRE process in Section 306(a.3) of the Act, 77 P.S. § 511.3. 

The IRE process has remained substantially the same as before, except that Act 111

requires that a physician use the AMA Guides, 6th edition, when performing an IRE 

and allows for modification to partial disability status if a claimant has a whole-body 

impairment of less than 35%.

On May 7, 2020, Kenneth Gentilezza, M.D. (Dr. Gentilezza) performed 

an IRE, as provided for in Section 306(a.3) of the Act, on Claimant. Dr. Gentilezza

opined:

Based upon my evaluation of [Claimant] today, review of 

the medical records provided and results of the diagnostic 

studies included within the records, it is my opinion, 

with[in] a reasonable degree of medical certainty, that the 

diagnoses responsible to define and explain the 

impairments she sustained as a result of repetitive trauma 

over time through her course of employment with 

documented work injury date of 8/22/[20]16 are consistent 

with the following:

1. Bilateral carpal tunnel syndrome status post bilateral 

carpal tunnel release[.]

2. Cervical radiculopathy C6, right side aggravated as a 

result of cervical injuries sustained from her employment 

with pre[]existing cervical spondylitic changes that were 

aggravated as a result of her work activities which led to 

the C6 radiculopathy as the documented radicular level 

with upper extremity symptoms noted bilaterally which is 

a combination of cervical spine and carpal tunnel 

syndrome.

The diagnoses above are permanent impairments. Based 

upon the AMA Guides[, 6th edition,] definition of 

maximal medical improvement, it is my opinion, with[in]

a reasonable degree of medical certainty, [Claimant] has 

achieved maximal medical improvement. There has been 

some discussion from the doctors at Main Line Spine 
4

about the possibility of spinal cord stimulator. Although 

this may be an option for intervention, it is not one that 

will change [Claimant’s] whole[-]person impairment 

percentage today as it is a pain reduction modality and will 

not have [an] impact on the impairment in general. This 

will not change with the insertion of a spinal cord 

stimulator, independent of the success.

Reproduced Record (R.R.) at 11a; see also WCJ Callahan Op. at 4-5 (Finding of 

Fact 5(g)). Dr. Gentilezza calculated Claimant’s whole-body impairment as 25%. 

Consequently, on November 16, 2020, Employer filed the Modification Petition 

seeking to change Claimant’s disability status from total to partial based on the May 

7, 2020 impairment rating. Claimant opposed the Modification Petition on the 

grounds that Act 111 is unconstitutional.

WCJ Callahan held hearings on December 22, 2020, and March 22, 

2021. On June 10, 2021, WCJ Callahan granted Employer’s Modification Petition,

concluding that Employer met its burden of proof under Act 111 for a modification 

of Claimant’s disability status from total to partial effective May 7, 2020. Claimant 

appealed to the Board. On January 22, 2022, the Board affirmed the WCJ’s decision. 

Claimant appealed to this Court.5

Initially, Act 111 replaced former Section 306(a.2) of the Act with 

Section 306(a.3) of the Act, which declares, in pertinent part:

(1) When an employe has received total disability 

compensation . . . for a period of [104] weeks, unless 

otherwise agreed to, the employe shall be required to 

submit to a medical examination which shall be 

requested by the insurer within [60] days upon the 

expiration of the [104] weeks to determine the degree 

of impairment due to the compensable injury, if any. 

The degree of impairment shall be determined based upon 

5

“Our review is limited to determining whether the WCJ’s findings of fact were supported 

by substantial evidence, whether an error of law was committed, or whether constitutional rights 

were violated.” Pierson v. Workers’ Comp. Appeal Bd. (Consol Pa. Coal Co. LLC), 252 A.3d 

1169, 1172 n.3 (Pa. Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021).
5

an evaluation by a physician . . . pursuant to the [AMA 

Guides, 6th edition].

(2) If such determination results in an impairment 

rating that meets a threshold impairment rating that is 

equal to or greater than [35%] impairment under the 

[AMA Guides, 6th edition], the employe shall be 

presumed to be totally disabled and shall continue to

receive total disability compensation benefits . . . . If 

such determination results in an impairment rating 

less than [35%] impairment under the [AMA Guides,

6th edition], the employe shall then receive partial 

disability benefits . . . : Provided, however, That no 

reduction shall be made until [60] days’ notice of 

modification is given.

(3) Unless otherwise adjudicated or agreed to based upon 

a determination of earning power . . . , 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 

[500]-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 [500]-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 [35%] impairment under the 

[AMA Guides, 6th edition].

(5) Total disability shall continue until it is adjudicated or 

agreed . . . that total disability has ceased or the employe’s 

condition improves to an impairment rating that is less 

than [35%] of the degree of impairment defined under the 

[AMA Guides, 6th edition].

(6) Upon request of the insurer, the employe shall submit 

to an [IRE] in accordance with the provisions of [S]ection 

314 [of the Act] 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 [2] 

[IREs] under this clause during a [12]-month period.

(7) In no event shall the total number of weeks of partial 

disability exceed [500] weeks for any injury or recurrence 
6

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 [104] weeks for any 

employe who does not meet a threshold impairment rating 

that is equal to or greater than [35%] impairment under the 

[AMA Guides, 6th edition], for any injury or recurrence 

thereof.

77 P.S. § 511.3 (emphasis added). 

Section 3 of Act 111 further provides, in relevant part:

(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 [A]ct, an 

insurer shall be given credit for weeks of total disability 

compensation paid prior to the effective date of this 

paragraph. This section shall not be construed to alter 

the requirements of [S]ection 306(a.3) of the [A]ct.

(2) For the purposes of determining the total number of

weeks of partial disability compensation payable under

[S]ection 306(a.3)(7) of the [A]ct, an insurer shall be 

given credit for weeks of partial disability 

compensation paid prior to the effective date of this 

paragraph.

Act 111, § 3(1), (2) (emphasis added). 

Claimant first argues that Act 111 is an unconstitutional delegation to 

the AMA and is in violation of article II, section 1 of Pennsylvania’s Constitution. 

However, Claimant asserts this argument solely “to preserve its viability for 

appellate purposes.” Claimant Br. at 6. Claimant concedes:

[T]his precise argument has been addressed by [this Court]

in Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 

306 (Pa. Cmwlth. 2019). The [Pennsylvania AFL-CIO]

Court ruled the [AMA Guides, 6th edition] was not an

unconstitutional delegation of legislative authority.

Claimant also notes that this decision was affirmed by a 

brief per curi[a]m [O]rder of the Pennsylvania Supreme 

Court. As the [Board] note[d], this decision was 
7

reaffirmed in Hutchinson v. Annville Township ([Workers’ 

Compensation Appeal Board]), 260 A.3d 360, 366 (Pa.

Cmwlth. 2021). In a recent case, Hazzouri [v.]

Pennsylvania Turnpike Commission [(Workers’ 

Compensation Appeal Board) (Pa. Cmwlth. No. 889 C.D. 

2021, filed Apr. 28, 2022),] [this Court] once again 

reaffirmed this ruling and rejected [Claimant’s] position.[6]

Claimant Br. at 7-8. Based on the above, this Court rejects Claimant’s argument 

and, consistent with this Court’s precedent, holds that Act 111 is not an 

unconstitutional delegation to the AMA and does not violate article II, section 1 of 

Pennsylvania’s Constitution. 

Claimant next argues that the AMA Guides, 6th edition, insufficiently 

account for disabling pain or mental illness flowing from a work injury or medical 

treatment and, thus, do not provide a constitutional basis for assessing disability, as 

they fall short of the nuanced assessment necessary to evaluate each of Claimant’s 

conditions and violate article II, section 1 and/or article I, section 11 of 

Pennsylvania’s Constitution. Specifically, Claimant contends that, because the

AMA Guides, 6th edition, measure impairment rather than disability, they do not 

provide sufficient criteria to evaluate these important resulting sequelae from 

particularly serious work injuries, which, as in this case, often result in unsuccessful 

surgeries. Claimant submits that the Pennsylvania Supreme Court discussed this 

issue in Duffey v. Workers’ Compensation Appeal Board (Troia-dyne, Inc.), 152 

A.3d 984 (Pa. 2017), but it did not address the constitutional argument.

7

Employer rejoins that while the courts have not yet addressed the 

sequelae issue, it does not apply to the instant case. Employer asserts that Claimant’s 

injury description is clearly set forth in WCJ Callahan’s decision and in Dr. 

6 Unreported decisions of this Court issued after January 15, 2008, may be cited as 

persuasive authority pursuant to Section 414(a) of this Court’s Internal Operating Procedures. 210 

Pa. Code § 69.414(a).

7 Duffey was decided on January 19, 2017, prior to the Protz decision and before Act 111

was enacted.
8

Gentilezza’s IRE report. Employer emphasizes that Dr. Gentilezza referenced

Claimant’s pain complaints in his report, for which he applied calculation modifiers 

in reaching Claimant’s final whole-body impairment rating.

8

 Employer maintains 

that Claimant is asking that this Court reweigh Dr. Gentilezza’s opinions and his

impairment calculations, which is beyond this Court’s scope of review, and such 

allegation should be rejected.

The issue before the Court in Duffey was whether an IRE report 

submitted by the employer was invalid because it did not address mental injuries 

which the WCJ newly added to the claimant’s notice of compensation payable 

(NCP). Therein, the employer requested an IRE pursuant to former Section 

306(a.2)(1) of the Act.

9

In its request for designation of a physician to perform the 

evaluation, the employer described the underlying compensable injury as bilateral 

hands-nerve and joint pain. A few months later, a specialist in physical medicine 

and rehabilitation (Physician-Evaluator) performed an IRE on the claimant. The 

Physician-Evaluator assigned a whole-body impairment rating of 6%, prompting the 

employer to issue a notice informing the claimant that his disability status would 

change from total to partial. Thereafter, the claimant filed a review petition 

challenging the validity of the IRE based on the fact that the Physician-Evaluator 

had failed to rate the full range of work-related injuries, since the claimant suffered

from adjustment disorder with depressed mood and chronic post-traumatic stress 

disorder as a result of his work injury.

8

“[Claimant] completed a Pain Disability Questionnaire as part of [the IRE] assessment 

scoring 134, which is consistent with grade 4 functional history grade modifier, described as pain 

and symptoms at rest limited to sedentary activity.” R.R. at 9a; IRE Report at 4. 

9 Now Section 306(a.3)(1) of the Act, which is virtually identical to former Section 

306(a.2)(1) of the Act, with the exception of requiring a whole-body impairment rating of 35%, 

rather than 50%, for total disability.
9

The WCJ, therein, directed that the claimant’s psychological conditions 

be added to the NCP, and determined that the IRE was invalid, because the 

Physician-Evaluator had not addressed those conditions. Accordingly, the WCJ also 

found that the total disability status assigned to the claimant’s WC benefits could 

not be modified. On appeal, the Board reversed the WCJ’s decision to invalidate the 

IRE, reasoning that a physician-evaluator may properly limit an IRE according to 

the accepted injuries as reflected in an NCP. The Board observed that the claimant 

had not sought to amend the NCP to include additional injuries in a timely fashion 

but, instead, waited to do so until almost six months after the IRE was performed. 

The Board held that the 6% impairment rating assigned by the Physician-Evaluator 

was valid and, accordingly, modified the status of the claimant’s WC benefits from 

total to partial disability.

On further appeal, this Court affirmed the Board’s order. This Court 

emphasized that former Section 306(a.2) of the Act required a determination of the 

degree of impairment due to the compensable injury. This Court focused on the 

compensable injury component of this phrase, explaining that the NCP establishes 

the description of the work injury. In light of this approach, and given that an IRE 

involves an assessment of a claimant’s condition at the time of the evaluation, this

Court indicated that the focus in determining the validity of an IRE is on the state of 

the claimant and the compensable injury, as described in the NCP at the time the 

IRE is performed.

Our Supreme Court agreed with this Court’s holding that an NCP 

should define compensable injury for purposes of this inquiry. However, such 

holding does not determine the range of impairments which may be due to such 

injury. Under former Section 306(a.2) of the Act and the applicable impairment 

guidelines, the physician-evaluator must exercise professional judgment to render 
10

appropriate decisions concerning both causality and apportionment. Thus, the 

Duffey Court ruled: 

[T]here may be some basis in the AMA Guides permitting 

a physician-evaluator to attribute a claimant’s 

psychological disorders to the event in which the claimant 

was injured, rather than to the compensable injury itself. 

Again, however, a physician-evaluator simply may not 

entirely disavow any and all responsibility to consider 

causality relative to a given condition.

Duffey, 152 A.3d at 989. Accordingly, the Duffey Court concluded:

[T]he evaluative judgment is the touchstone on these 

subjects, as well as on the topic of causality. In the present 

case, since the [p]hysician-[e]xaminer failed to exercise 

such judgment based on a misunderstanding concerning 

the scope of his responsibilities, the WCJ did not err in 

invalidating the IRE.

Id. at 991. In other words, it is the physician-evaluator who determines the injuries 

at the time of the IRE, not the NCP. Consequently, the Duffey Court reversed this 

Court’s holding, and remanded for reinstatement of the finding of invalidity rendered 

by the WCJ.

Herein, Claimant contends that, although the Duffey Court held that the 

IRE physician must exercise professional judgment to render appropriate decisions 

concerning both causality and apportionment, it left unspoken what the criteria 

would be for determining disability in exercising that judgment. It is that issue that 

Claimant raises on appeal. Employer retorts that, because Claimant’s IRE was based 

on Claimant’s work injuries as diagnosed by Dr. Gentilezza, rather than the injury 

description declared by WCJ Bowers, and Dr. Gentilezza did not diagnose Claimant 

with any mental injuries and took into consideration Claimant’s pain complaints in 

reaching his whole-body impairment, this Court does not reach Claimant’s issue.
11

This Court is constrained to agree with Employer. Had Dr. Gentilezza

diagnosed Claimant with mental injuries of any kind, the issue presented (whether 

the AMA Guides, 6th edition, provide inadequate/no guidelines such that the 

legislature has unlawfully delegated the task of evaluating mental injuries for the 

purpose of assigning a whole-body impairment rating to physician-evaluators),

would properly be before the Court. However, because Dr. Gentilezza did not 

diagnose Claimant with any mental injuries, this Court does not reach that issue.

For all of the above reasons, the Board’s order is affirmed.

 

_________________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lauren M. Sanders, :

Petitioner :

:

v. :

:

Recordtrak, LLC (Workers’ :

Compensation Appeal Board), : No. 163 C.D. 2022

Respondent :

O R D E R

AND NOW, this 12th day of December, 2022, the Workers’ 

Compensation Appeal Board’s January 26, 2022 order is affirmed.

_________________________________

ANNE E. COVEY, Judge