[J

### -100A-2016and J

### -100B-2016] [MO:

### Wecht,J.] IN THESUPREME COURT OF 

### PENNSYLVANIA WESTERN DISTRICT
MARYANN PROTZ, : No. 6

### WAP2016 Appellant

v. 

### WORKERS' COMPENSATIONAPPEAL BOARD (DERRY AREA 

### SCHOOL DISTRICT), Appellees : Appeal fromthe Orderof the

: 

### Commonwealth Courtentered

: 

### September 18, 2015 at No. 1024 CD

: 2014, vacating theOrder ofthe

: 

### Workers' CompensationAppeal Board

: entered May22, 2014 at No. 

### A13-0096

: and remandingwith 

### instructions.

: 

### ARGUED: November 1, 2016
MARYANN PROTZ : No. 7

### WAP2016

: Appeal fromthe Orderof the v. : 

### Commonwealth Courtentered

: 

### September 18, 2015 at No. 1024 CD

: 2014, vacating theOrder ofthe 

### WORKERS' COMPENSATIONAPPEAL : 

### Workers' CompensationAppeal Board BOARD (DERRYAREA 

### SCHOOL : entered May22, 2014 at No.

### A13-0096, DISTRICT) : and remandingwith 

### instructions.
APPEAL OF: 

### DERRYAREASCHOOL : 

### 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 legislativeauthorityto theAMA. Rather,the

### challengedstatutory provisiondelegates preliminary determinations of 

### claimant impairment ratings to board- certified physicians licensed in the 

### Commonwealth who are active in clinical practice. Thestatute directsthese physicians to utilizethe most recent edition ofthe 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 

### disabilitycompensation 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 leasttwenty 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 "Guidesto the Evaluation of 

### Permanent Impairment."
(2) If such 

### determination results in an 

### impairment rating 

### that meets a 

### threshold impairment rating 

### that is equal toor

### greaterthanfifty 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 ofmodification isgiven. 77 P.S. § 511.2.

[J

### -100A-2016and J

### -100B-2016] [MO:Wecht, J.] - 2in 

### connection with 

### their initial 

### impairment determination. There is no 

### constitutional infirmity in this 

### approach as it merely evinces the General 

### Assembly's policy 

### determination toadopt the most 

### up-to-date medicaladvances asthe 

### methodologyto be utilized by 

### physicians when 

### evaluating whether to 

### classify a 

### claimant as 

### totally or partiallydisabled. Stateddifferently, requiringthe useof the most recentAMA 

### Guides is not 

### delegating the 

### authority to make law; it is 

### simply declaring the 

### applicable standard bywhich 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 tothecontrary. 

### Constitutional challenges alleging that a 

### statutory provision 

### unlawfullydelegates legislative power emanate from 

### Article II, Section 1 of the 

### Pennsylvania Constitution. PA. CONST. art. II, § 1 (stating 

### that "[t]he legislative 

### powerofthis 

### 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, theGeneral 

### Assemblymust also

### supply adequate standards to 

### guide and restrain the 

### exercise of 

### delegated administrative functions. Pennsylvanians 

### AgainstGambling Expansion Fund v. 

### Commonwealth, 877 A.2d 383, 418 (2005). Section 306(a.2) does notviolatethese constitutional mandates. As 

### observed by the 

### esteemed Judge Robert Simpson in his 

### dissent below, the 

### Legislature made the policydecision 

### that inthefirst instance, the

### degree of 

### impairmentdetermination must be made by an 

### independently selected (or agreed-upon), certified medical specialist,

[J

### -100A-2016and J

### -100B-2016] [MO:Wecht, J.] - 3engaged 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.), 124A.3d406, 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 basicpolicy choices remain tobe 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 schemewithoutfinding a

### delegation of 

### legislative authority

. . . evenwhen the 

### standards are 

### subjectto 

### periodic revision bythe 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 legislaturechose to utilize

### objective standards established bytheAMA,which is a highly respected and impartial entitythat possesses the expertise for such a task. Id. at 259.

2Judges Leadbetter and Covey

### joined Judge 

### Simpson's dissent.

[J

### -100A-2016and J

### -100B-2016] [MO:Wecht, J.] - 4The 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 non

### delegatory 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 relyonthe mostcurrent 

### standardsand

### definitions promulgated by

### entities otherthan 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 

### thatthe General 

### Assembly'scommon sense decisionto direct physicians to utilize the most 

### current medical knowledge when making 

### impairment determinations is a 

### constitutionally sustainable policy decision that should be left undisturbed.

[J

### -100A-2016and J

### -100B-2016] [MO:Wecht, J.] - 5