IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lawrence Powell, :

 Petitioner :

:

 v. : No. 406 C.D. 2023

: Submitted: March 8, 2024

City of Philadelphia (Workers’ :

Compensation Appeal Board), :

 Respondent :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WALLACE FILED: May 7, 2024

Lawrence Powell (Claimant) petitions for our review of the Workers’ 

Compensation Appeal Board’s (Board) April 5, 2023 order (Order) affirming the 

decision of Workers’ Compensation Judge (WCJ) Michael Rosen (WCJ Rosen) 

which modified Claimant’s workers’ compensation (WC) temporary disability 

status from total to partial based on the results of an Impairment Rating Evaluation 

(IRE) conducted under Section 306(a.3) of the Workers’ Compensation Act (WC

Act).1 After careful review, we affirm the Board’s Order.

1 Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 24, 2018, P.L. 714, No. 

111 (Act 111), 77 P.S. § 511.3.
2

I. Factual and Procedural History

On September 24, 2013, Claimant, then serving as a police officer for the City 

of Philadelphia (Employer), was involved in a work-related motor vehicle accident 

and sustained bodily injuries. Reproduced Record (R.R.) at 120a-21a. Employer 

filed an Amended Notice of Compensation Payable on September 28, 2018, 

acknowledging Claimant’s injuries. Id. Claimant began receiving temporary total 

disability benefits from Employer through the WC Act in the amount of $850.81 per 

week. Id. 

On March 5, 2021, Claimant underwent an IRE performed by Lynn W. Yang, 

M.D. (Dr. Yang), using the Sixth Edition, second printing, of the American Medical 

Association (AMA) Guides to the Evaluation of Permanent Impairment (Guides). 

R.R. at 64a-66a. Dr. Yang’s January 28, 2022 IRE report assigned Claimant a 

whole-body impairment rating2 of 8% and determined Claimant had attained 

maximum medical improvement.3 Id. at 67a-70a. Employer thereafter filed a 

Petition to Modify Compensation Benefits requesting an amendment of Claimant’s 

WC temporary disability status from total to partial. Id. at 5a-7a.

By decision and order circulated on September 13, 2022, see R.R. at 21a-26a, 

WCJ Rosen granted Employer’s modification petition in light of Dr. Yang’s credible 

testimony and her March 5, 2021 IRE. Id. at 25a. Claimant appealed WCJ Rosen’s 

decision to the Board, alleging WCJ Rosen erred as a matter of law. Id. at 18a-19a. 

2

“[T]he term ‘impairment rating’ shall mean the percentage of permanent impairment of the whole 

body resulting from the compensable injury. The percentage rating for impairment under this 

clause shall represent only that impairment that is the result of the compensable injury and not for 

any preexisting work-related or nonwork-related impairment.” 77 P.S. § 511.3(8)(ii).

3

“Maximum medical improvement means that the claimant’s condition has become ‘static or 

stable,’ but continued palliative care, such as treatment of pain, may be required.” DTE Energy 

Co., Inc. v. Workers’ Comp. Appeal Bd. (Weatherby), 245 A.3d 413, 419-20 (Pa. Cmwlth. 2021).
3

The Board affirmed, see id. at 30a-36a, and Claimant now asks this Court to reverse

the Board’s Order.

II. Discussion

Claimant presents two questions on appeal: (1) whether Section 306(a.3) of 

the WC Act violates the Nondelegation Doctrine embodied in article II, section 1 of 

the Pennsylvania Constitution, Pa. Const. art. II, § 1, and (2) whether Act 111’s 

retroactive credit provisions violate the Remedies Clause of article I, section 11 of 

the Pennsylvania Constitution, id. at art. I, § 11. See Claimant’s Br. at 4.

This Court reviews an order of the Board for violations of a petitioner’s 

constitutional rights, violations of agency practice and procedure, and other errors 

of law. 2 Pa.C.S. § 704. We also review for lack of substantial evidence supporting 

the findings of fact necessary to sustain the order.4 Id. In considering questions of 

law, our standard of review is de novo, and our scope of review is plenary. See

Edwards v. Workers’ Comp. Appeal Bd. (Epicure Home Care, Inc.), 134 A.3d 1156, 

1161 n.4 (Pa. Cmwlth. 2016). In other words, we need not defer to the conclusions 

of law below, and we review the entire record before us with a fresh pair of eyes. 

Additionally, we recognize that “any party challenging the constitutionality of a 

statute must meet a heavy burden, for we presume legislation to be constitutional 

absent a demonstration that the statute ‘clearly, palpably, and plainly’ violates the 

Constitution.” Konidaris v. Portnoff L. Assocs., Ltd., 953 A.2d 1231, 1239 (Pa. 

2008) (citation omitted).

4 Claimant raises an objection to both WCJ Rosen’s decision and the Order for lack of 

corroborating substantial evidence in his petition for review. Pet. for Review ¶¶ 5-6. Nonetheless, 

because Claimant does not raise or develop this issue in his brief, it is waived. See Commonwealth 

v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“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.”).
4

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

(1) When an employe has received total disability compensation 

pursuant to clause (a)[, see Section 306(a) of the WC Act, 77 P.S. 

§ 511,] for a period of one hundred and four weeks, . . . the employe 

shall be required to submit to a medical examination which shall be 

requested by the insurer . . . 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 . . . pursuant to the 

[Guides]. . . .

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

threshold impairment rating that is equal to or greater than thirty-five 

per centum impairment under the [Guides], 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] . . ., the employe shall then 

receive partial disability benefits under clause (b)[, see Section 306(b) 

of the WC Act, 77 P.S. § 512]. . . .

(3) . . . 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 five hundred-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 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 thirty-five per centum 

impairment under the [Guides] . . . .

77 P.S. § 511.3(1)-(4). Additionally, the credit provisions of Section 3 of Act 111 

state:

(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, an 

insurer shall be given credit for weeks of total disability compensation 
5

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 

[WC 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 [WC 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). 

A. Section 306(a.3) and Nondelegation

We first address Claimant’s contention that Section 306(a.3) violates the 

Pennsylvania Constitution’s Nondelegation Doctrine, which enshrines the 

fundamental principle that, under our tripartite system of government, “the General 

Assembly cannot delegate ‘to any other branch of government or to any other body 

or authority’ the power to make law.” Protz v. Workers’ Comp. Appeal Bd. (Derry 

Area Sch. Dist.), 161 A.3d 827, 833 (Pa. 2017) (citation omitted) (Protz II). This 

doctrine is embodied in article II, section 1 of the Pennsylvania Constitution, Pa. 

Const. art. II, § 1, which declares: “The legislative power of this Commonwealth 

shall be vested in a General Assembly, which shall consist of a Senate and a House 

of Representatives.” 

In Protz II, the Pennsylvania Supreme Court invalidated Section 306(a.2) of 

the WC Act,5 Section 306(a.3)’s predecessor, as an unconstitutional delegation of 

the General Assembly’s legislative authority to the AMA. Id. at 835-36, 839. The 

legislature thereafter enacted Act 111, replacing former Section 306(a.2) with 

Section 306(a.3). This Court determined in Pennsylvania AFL-CIO v. 

Commonwealth, 219 A.3d 306, 319 (Pa. Cmwlth. 2019), aff’d per curiam (Pa. No. 

5 Added by Section 4 of the Act of June 24, 1996, P.L. 350, formerly 77 P.S. § 511.2, repealed by 

Act 111.
6

88 MAP 2019, filed August 18, 2020), that Section 306(a.3) does not violate the 

Nondelegation Doctrine because “[t]he standards adopted were not ‘unseen’ or 

unknown to the General Assembly at the time it enacted Section 306(a.3)” and, 

“unlike the AMA, the General Assembly clearly is not isolated from the political 

process and shielded from political accountability for its actions.” Id. at 316-17. 

Accordingly, based on Pennsylvania AFL-CIO, we reject Claimant’s argument that 

Section 306(a.3) violates the Nondelegation Doctrine.

B. Act 111 and the Remedies Clause

Claimant next argues Act 111’s retroactive credit provisions violate the 

Remedies Clause of the Pennsylvania Constitution by extinguishing his “clear, 

vested property right in the indemnity benefits being received.” Claimant’s Br. at 

25. The Remedies Clause 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. The Remedies Clause, generally, “is invoked when a change 

in the legislation attempts to alter or eliminate a vested or accrued cause of action.” 

Dana Holding Corp. v. Workers’ Comp. Appeal Bd. (Smuck), 195 A.3d 635, 643 

(Pa. Cmwlth. 2018). Thus, the Remedies Clause encompasses only those interests

which are vested, i.e., “something more than a mere expectation, based upon an 

anticipated continuance of existing law. It must have become a title, legal or 

equitable, to the present or future enforcement of a demand, or a legal exemption 

from a demand made by another.” Lewis v. Pa. R. Co., 69 A. 821, 823 (Pa. 1908). 
7

Once vested, the Remedies Clause shields “an individual’s remedy for an injury 

done” from retroactive legislative action. Konidaris, 953 A.2d at 1242.

Recently, an en banc panel of this Court rejected the idea that “a claimant has 

a vested right to ongoing benefits indefinitely” because “‘there are reasonable 

expectations under the [WC] Act that benefits may change,’ and it is not an 

extraordinary circumstance that a claimant’s indemnity benefits may be reduced or 

end before a claimant believes they should.” Dunetz v. Charles H. Sacks 

D.M.D., P.C. (Workers’ Comp. Appeal Bd.), 304 A.3d 134, 142-43 (Pa. Cmwlth. 

2023) (en banc), pet. for allowance of appeal filed (Pa. No. 617 MAL 2023, filed 

Nov. 21, 2023) (citation omitted). Therefore, “Claimant’s ‘vested rights’ have not 

been abrogated by Act 111,” Pierson v. Workers’ Compensation Appeal Board 

(Consol Pennsylvania Coal Co. LLC), 252 A.3d 1169, 1180 (Pa. Cmwlth.), appeal 

denied, 261 A.3d 378 (Pa. 2021), and we are bound by established precedent to 

uphold Section 306(a.3)’s constitutionality under the Remedies Clause.

III. Conclusion

Based on the foregoing, we affirm the Board’s Order.

______________________________

STACY WALLACE, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lawrence Powell, :

 Petitioner :

:

 v. : No. 406 C.D. 2023

: 

City of Philadelphia (Workers’ :

Compensation Appeal Board), :

 Respondent :

O R D E R 

 AND NOW, this 7th day of May 2024, the April 5, 2023 order of the Workers’ 

Compensation Appeal Board is AFFIRMED.

______________________________

STACY WALLACE, Judge