IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lauren M. Sanders

, :

Petitioner :

:

v. :

: Recordtrak, LLC (Workers’ : Compensation Appeal Board)

, : No. 163 C.D. 202 2

Respondent : Submitt ed: 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 B oard’s (Board) January 2 6 , 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 111 1 is 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 Act 111 repealed the unconstitutional impairment rating evaluation ( IRE ) provision and replaced it with a new IRE provision, Section 306(a.3) of the WC Act, Act of June 2,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 a rticle II, s ection 1 of Pennsylvania ’ s Constitution ; 2 and (2) w hether the

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

pr inting April 2009) (AMA Guides

, 6th edition ) in sufficiently 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 violat e a rticle II,

s ect ion 1 and/or a rticle I, s ection 1 1 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. O n
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 agg ravation 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. W

orkers’ C ompensation A

ppeal B oard (Derry Area Sch ool Dist rict ) , 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 Pennsyl vania Constitution and striking Section 306(a.2) in its entirety

2 P A . C ONST

. art. II, § 1 (“[T]he legislative power of this Commonwealth shall be vested
in a General Ass embly, which shall consist of a Senate and a House of Representatives.”).

3 Claimant inadvertently refers to a rticle 1, s ection 10 of the Pennsylvania Constitution,
P A . C ONST

. art. I, § 1 0 (relating to initiation of criminal proceedings) . However

, Claiman t quotes from a rticle I

, s ection 1 1 of the Pennsylvania Constitution

, P A . C ONST

. art. I, § 1 1 (“ 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 j ustice 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 pro cess 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 e dition

, 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 responsi ble to define and explain the impairments she sustained as a result of r epetitive 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 h er 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. Base d upon the AMA Guides [, 6 th 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 M ain Line Spine4 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 [a n] 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 opp osed the Modification Petition on the
grounds that Act 111 is unconstitutional.

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

2021. O n 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 injur y , if any

. The degree of impairment shall be determined based upon

5 “Our review is limited to determining whe ther 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. C mwlth.), appeal denied , 261 A.3d 378 (Pa. 2021).5 an evaluation by a physician . . . pursuant to the [ AMA Guides

, 6th e dition ]

. (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

, 6 th 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 e dition ]

, 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 . . . , t he 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 earnin g 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 t o or greater than [35%] impairment under the [ AMA Guides

, 6th e dition ]

. (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 th an [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: P rovided, 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 f or any injury or recurrence6 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 whethe r 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 cre dit 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 adde d).

Claimant first argues that Act 111 is an unconstitutional delegation to

the AMA and is in violation of a rticle II, s ection 1 of Pennsylvania’s Constitution

. However, Claim a nt asserts this argument solely “ to preserve its viability for
appellate pu rposes .” 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, 6 th edition ] w as 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 was7 reaffirmed in Hutc hinson 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 a rticle II, s ection 1 of
Pennsylvania’s Constitution

.

Claimant next argues that the AMA Guides, 6th edition, in sufficiently
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 violat e a rticle II, s ection 1 and/or a rticle I, s ect ion 1 1 of
Pennsylvania’s Constitution

. Specifically, Claimant contends that , because t he

AMA Guides, 6th edition

, measure impairment rather than disability , t he y do not
provide sufficient criteria to evaluate these important resulting sequelae from
partic ularly 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. 3 d 984 ( Pa. 2017) , but it did not address the c onstitutional argument

. 7

Employer rejoins that w hile the courts have not yet addressed th e 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 Duff e y was decided on January 19, 2017, prior to t he Protz decision and before Act 111 was enacted

.8

Gentilezza ’s IRE report. Employer emphasizes that Dr. Gentilezza reference d

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 ask ing that this C ourt 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 i n 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 e mployer 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 e mployer 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

e mployer to issue a notice informing the c laimant that his disability status would
change from total to partial. Thereafter, the c laimant file d 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 c laimant 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 c laimant ’ 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 c laimant ’ s WC benefits could

not be modified. On appeal, the Board reversed the WCJ’s decision to invalid ate the
IRE, reasoning that a physician

- evaluator may properly limit an IRE according to
the accepted injuries as reflected in a n NCP

. T he Board observed that the c laimant
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 c laimant ’ s WC benefits from
total to partial disability.

On further appeal, this Court affirmed the Board ’ s order. T his C ourt
emphasized that former Section 306(a.2) of the Act require d a determination of the
degree of impairment due to the compensable injury

. Th is C ourt focused o n 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, th i s

C ourt 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. H owever, 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 render10

appropriate decisions concerning both causality and apportionment. Thus, the
Duff e y C ourt 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 disav ow any and all responsibility to consider causality relative to a given condition.

Duff e y , 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 responsibiliti es, 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 rei nstatement of the finding of invalidity rendered
by the WCJ.

Herein, Claimant contends that

, although the Duffey Court held that t he

IRE physician must exercise professional judgment to render appropriate decisions
concerning both causality and apportionm ent
, 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 pa in complaints in
reaching his whole

- body impairment , this Court does not reach C laimant’s issue.11 This Court is constrained to agree with Employer. Had Dr. Gentilezza
diagnose d Claimant with mental injuries of any kind, the issue presented (whether

the AMA Guides, 6 th 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 befo re the Court. However, because Dr. Gentilezza did not
diagnose Claimant with any mental injuries, this C ourt does not reach that issue.

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

___________________________ ______ ANNE E. COVEY, JudgeIN 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 12 th day of December , 20 2 2

, the Workers’
Compensation Appeal Board’s January 2 6 , 2022 order is affirmed.

___________________________ ______ ANNE E. COVEY, Judge