[J -100A-2016 and J -100B-2016] [MO: Wecht, J.] 

IN THE SUPREME COURT OF PENNSYLVANIA 

WESTERN DISTRICT 

MARY ANN PROTZ, : No. 6 WAP 2016 

Appellant 

v. 

WORKERS' COMPENSATION APPEAL 

BOARD (DERRY AREA SCHOOL 

DISTRICT), 

Appellees 

: Appeal from the Order of the 

: Commonwealth Court entered 

: September 18, 2015 at No. 1024 CD 

: 2014, vacating the Order of the 

: Workers' Compensation Appeal Board 

: entered May 22, 2014 at No. A13-0096 

: and remanding with instructions. 

: ARGUED: November 1, 2016 

MARY ANN PROTZ : No. 7 WAP 2016 

: Appeal from the Order of the 

v. : Commonwealth Court entered 

: September 18, 2015 at No. 1024 CD 

: 2014, vacating the Order of the 

WORKERS' COMPENSATION APPEAL : Workers' Compensation Appeal Board 

BOARD (DERRY AREA SCHOOL : entered May 22, 2014 at No. A13-0096, 

DISTRICT) : and remanding with instructions. 

APPEAL OF: DERRY AREA SCHOOL : ARGUED: November 1, 2016 

DISTRICT 

DISSENTING OPINION 

JUSTICE BAER DECIDED: JUNE 20, 2017 

I respectfully dissent from the majority's holding that Section 306(a.2) of the 

Workers' Compensation Act, 77 P.S. § 511.2, which directs a physician to evaluate a 

claimant's degree of impairment pursuant to the most recent edition of the American 

Medical Association ("AMA") "Guides to the Evaluation of Permanent Impairment," 
constitutes an unlawful delegation of legislative power in violation of Article II, Section I of the Pennsylvania Constitution.' Unlike the majority, I do not interpret Section 

306(a.2) as delegating legislative authority to the AMA. Rather, the challenged statutory 

provision delegates preliminary determinations of claimant impairment ratings to board - certified physicians licensed in the Commonwealth who are active in clinical practice. 

The statute directs these physicians to utilize the most recent edition of the AMA Guides 

1 As noted by the majority, Section 306(a.2), entitled "Medical examination; impairment 

rating," provides in relevant part: 

(1) 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 American Medical 

Association "Guides to the Evaluation of Permanent Impairment." 

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

threshold impairment rating that is equal to or greater than fifty per centum 

impairment under the most recent edition of the American Medical 

Association "Guides to the Evaluation of Permanent Impairment," 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 fifty per centum 

impairment under the most recent edition of the American Medical 

Association "Guides to the Evaluation of Permanent Impairment," the 

employe shall then receive partial disability benefits under clause (b): 

Provided, however, That no reduction shall be made until sixty days' 

notice of modification is given. 

77 P.S. § 511.2. 

[J -100A-2016 and J -100B-2016] [MO: Wecht, J.] - 2 
in connection with their initial impairment determination. There is no constitutional 

infirmity in this approach as it merely evinces the General Assembly's policy 

determination to adopt the most up-to-date medical advances as the methodology to be 

utilized by physicians when evaluating whether to classify a claimant as totally or 

partially disabled. Stated differently, requiring the use of the most recent AMA Guides is 

not delegating the authority to make law; it is simply declaring the applicable standard 

by which physicians should conduct impairment rating evaluations. Accordingly, I would 

uphold the constitutionality of Section 306(a.2) and reverse the decision of the 

Commonwealth Court, which held to the contrary. 

Constitutional challenges alleging that a statutory provision unlawfully delegates 

legislative power emanate from Article II, Section 1 of the Pennsylvania Constitution. 

PA. CONST. art. II, § 1 (stating that "[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"). Section 1 has been interpreted as requiring the Legislature to make 

the basic policy choices involved in legislative power, W. Mifflin Area Sch. Dist. v. 

Zahorchak, 4 A.3d 1042, 1045 n. 5 (Pa. 2010), so as to preserve the separation of 

powers. Lehman v. Pa. State Police, 839 A.2d 265, 274 (Pa. 2003). In addition to 

making basic policy choices embodied in a law, the General Assembly must also supply 

adequate standards to guide and restrain the exercise of delegated administrative 

functions. Pennsylvanians Against Gambling Expansion Fund v. Commonwealth, 877 

A.2d 383, 418 (2005). 

Section 306(a.2) does not violate these constitutional mandates. As observed by 

the esteemed Judge Robert Simpson in his dissent below, the Legislature made the 

policy decision that in the first instance, the degree of impairment determination must be 

made by an independently selected (or agreed -upon), certified medical specialist, 

[J -100A-2016 and J -100B-2016] [MO: Wecht, J.] - 3 
engaged in current clinical practice, and based on a uniform, objective, current and 

independent assessment standard. See Protz v. Workers' Comp. Appeal Bd. (Derry 

Area Sch. Dist.), 124 A.3d 406, 419 (Pa. Cmwlth. 2015) (Simpson, J., dissenting).2 The 

statutory provision clarifies that key to the impairment determination is adherence to 

prevailing best -practice medical standards, which is objectively demonstrated by 

licensure and board certification, requisite clinical practice, and employment of current 

AMA Guides. Id. As Judge Simpson cogently noted, "[i]t is hard to see what other 

basic policy choices remain to be made." Id. 

As did Judge Simpson below, I agree with the sentiments set forth by the 

Supreme Court of New Mexico in Madrid v. St. Joseph Hospital, 928 P.2d 250, 256 

(1996), which examined the same issue regarding whether a workers' compensation 

statute constitutes an unlawful delegation of legislative authority by requiring the use of 

the most recent edition of the AMA Guides in evaluating impairment. Id. The court 

found no unlawful delegation, recognizing that "many jurisdictions have articulated 

compelling rationales for allowing adoption of a private organization's standards into a 

statutory scheme without finding a delegation of legislative authority . . . even when the 

standards are subject to periodic revision by the private entity." Id. 

The New Mexico Supreme Court explained that "[i]t is impractical to expect our 

Legislature to establish standards for evaluating physical impairment in workers' 

compensation claims." Id. at 258-59. Noting a possible lack of legislative resources to 

adopt independent medical impairment standards, the court surmised that the 

legislature chose to utilize objective standards established by the AMA, which is a highly 

respected and impartial entity that possesses the expertise for such a task. Id. at 259. 

2 Judges Leadbetter and Covey joined Judge Simpson's dissent. 

[J -100A-2016 and J -100B-2016] [MO: Wecht, J.] - 4 
The New Mexico High Court stated, "[p]rohibiting the Legislature from adopting the 

standards developed by experts within a rapidly changing medical specialty would 

obstruct the Workers' Compensation Administration's efforts to provide accurate 

evaluations of impairment." Id. Recognizing that new scientific developments relevant 

to impairment evaluation demand modification, the court concluded that "[p]eriodic 

revisions of the standard will not transform an otherwise constitutional and nondelegatory statutory provision into an unconstitutional delegation of legislative power." 

Id. 

Consistent with this approach, it is my view that thwarting the Pennsylvania 

Legislature's ability to incorporate medical standards that are periodically updated due 

to new scientific developments does not safeguard any constitutionally protected 

interest but, rather, hinders the accuracy of claimant impairment ratings in workers' 

compensation cases. Additionally, I fear that the majority's decision will have far 

reaching consequences as it would apply to various other Pennsylvania statutes that 

rely on the most current standards and definitions promulgated by entities other than the 

legislature itself. See Opening Brief of Appellee/Cross-Appellant Derry Area School 

District at 37-40 (citing to numerous statutes that reference current standards and 

definitions developed by knowledgeable and professional independent entities). 

Accordingly, I would hold that the General Assembly's common sense decision to direct 

physicians to utilize the most current medical knowledge when making impairment 

determinations is a constitutionally sustainable policy decision that should be left 

undisturbed. 

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