IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shane J. Clapper, :

Petitioner :

:

v. : No. 517 C.D. 2021

: Submitted: December 30, 2021

Commonwealth of Pennsylvania :

(Workers’ Compensation Appeal :

Board), :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CEISLER FILED: April 13, 2022

Shane J. Clapper (Claimant) petitions this Court for review of the April 20, 

2021 order of the Workers’ Compensation Appeal Board (Board), which affirmed

the decision of a workers’ compensation judge (WCJ) modifying Claimant’s total 

disability benefits based on the results of an impairment rating evaluation (IRE) 

conducted pursuant to Section 306(a.3) of the Workers’ Compensation Act (Act).1

On appeal, Claimant challenges the constitutionality of Act 111 and argues that an 

1 Act of June 2, 1915, P.L. 736, as amended, added by Act of October 24, 2018, P.L. 714, 

No. 111 (Act 111), 77 P.S. § 511.3. Section 306(a.3)(1) of the Act requires that an employee who 

has received total disability compensation for 104 weeks submit to an IRE pursuant to the 

American Medical Association’s “Guides to the Evaluation of Permanent Impairment,” Sixth

edition (second printing April 2009) (AMA Guides), for the purpose of determining his degree of 

whole body impairment (WBI) due to the compensable injury. 77 P.S. § 511.3(1). If the IRE 

results in a WBI that is less than 35%, the employee shall receive partial disability benefits under 

Section 306(b) of the Act. 77 P.S. § 511.3(2). Section 306(b)(1) of the Act limits a claimant’s 

receipt of partial disability benefits to 500 weeks. 77 P.S. § 512(1). 
2

IRE under Section 306(a.3) of the Act cannot be performed until regulations have 

been promulgated to effectuate the provisions of Act 111. After review, we affirm. 

I. Background 

The underlying facts are undisputed. Claimant suffered a work injury to his 

lower back and right hip on April 24, 2012, while in the course of his employment 

as a corrections officer for the Commonwealth of Pennsylvania (Employer). 

Certified Record (C.R.), Item No. 14. Employer accepted liability for Claimant’s 

work injury through issuance of a notice of compensation payable (NCP).2 Id. 

Based on the results of a June 28, 2019 IRE, which assigned Claimant a WBI 

rating of 18%, Employer filed a petition to modify Claimant’s total disability 

benefits pursuant to Section 306(a.3) of the Act. C.R., Item No. 2. Claimant 

disputed the results of the June 28, 2019 IRE and generally challenged the 

constitutionality of the IRE provisions in the Act. C.R., Item No. 4. On June 29, 

2020, the WCJ granted Employer’s petition and modified Claimant’s disability 

benefits from total to partial, effective June 28, 2019. C.R., Item No. 5, at 7.

Claimant appealed to the Board, which affirmed the WCJ’s order on April 20, 2021. 

C.R., Item No. 8. This appeal followed.3 

2 The NCP indicates that Claimant would receive “salary continuation” under what is 

commonly referred to as the Heart and Lung Act (HLA). Act of June 28, 1935, P.L. 477, as 

amended, 53 P.S. §§ 637-638. Section 1(a) of the HLA relevantly provides that a corrections 

officer who is injured in the performance of his duties shall receive his full rate of salary, to be 

paid by the Commonwealth. 53 P.S. § 637(a). The Commonwealth has a right of subrogation to 

any workers’ compensation benefits received or collected by the insured employee. Id.

3 Our standard of 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. Lehigh Specialty Melting, Inc. v. Workers’ Comp. Appeal Bd.

(Bosco), 260 A.3d 1053, 1058 n.3 (Pa. Cmwlth. 2021). 
3

II. Issues

Claimant argues (1) that Act 111 unconstitutionally deprives him of property 

rights and violates his due process and equal protection rights under the 

Pennsylvania and United States Constitutions; (2) that an IRE under Section 306(a.3) 

of the Act cannot be performed until regulations have been promulgated to effectuate 

the provisions of Act 111; and (3) that the enactment of Act 111 represents an 

unconstitutional delegation of legislative authority. 

III. Discussion 

Act 111 largely reenacted IRE provisions contained in former Section 

306(a.2) of the Act,4 which this Court partially struck down in Protz v. Workers’ 

Compensation Appeal Board (Derry Area School District), 124 A.3d 406, 416 (Pa. 

Cmwlth. 2015) (Protz I), aff’d, 161 A.3d 827 (Pa. 2017) (Protz II), as an

unconstitutional delegation of legislative power, because it provided that an IRE 

should be conducted pursuant to the “most recent” version of the AMA Guides. We 

directed that future IREs must utilize the Fourth Edition of the AMA Guides, the 

version in effect at the time former Section 306(a.2) was enacted. Id. at 417. The 

Supreme Court affirmed this Court in Protz II but struck down Section 306(a.2) in 

its entirety. In the wake of Protz I and II, some claimants whose total disability 

benefits had been modified based on an IRE performed under former Section 

306(a.2) of the Act were entitled to reinstatement of their total disability benefits.5 

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

Section 1 of Act 111. 

5

See Whitfield v. Workers’ Comp. Appeal Bd. (Tenet Health Sys. Hahnemann LLC), 188 

A.3d 599 (Pa. Cmwlth. 2018) (claimant whose disability status was modified pursuant to an IRE 

rendered invalid by Protz II, and who filed a petition seeking reinstatement of total disability 

benefits within three years of her last payment of compensation, was entitled to reinstatement as 

of the date she filed her reinstatement petition). 
4

In reenacting the IRE provisions invalidated by Protz II, Section 3(1)-(2) of Act 111 

provides that, when calculating the number of total and partial disability weeks a 

claimant has received, an employer “shall” be granted a credit for any weeks paid 

prior to October 24, 2018, the date on which Act 111 became effective.

Claimant’s first constitutional argument baldly asserts, without supporting 

references to legal authority or fact, that the partial disability credit provision in 

Section 3(2) of Act 1116 unconstitutionally deprives him of property rights, and 

violates his constitutional rights to due process and equal protection.

7

Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure requires, in 

pertinent part, that an appellate brief include “such discussion and citation of 

authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). This Court has repeatedly 

held that we will not consider the merits of an issue that is not properly raised and 

developed in a brief. Am. Rock Mech., Inc. v. Workers’ Comp. Appeal Bd. (Bik & 

Lehigh Concrete Tech.), 881 A.2d 54, 56 (Pa. Cmwlth. 2005). See also 

Commonwealth v. Rompilla, 983 A.2d 1207, 1210 (Pa. 2009) (appellant’s failure to 

adequately develop its arguments or support its bald assertions with sufficient 

citation to legal authority impedes meaningful judicial review of its claims). 

6

In his brief, Claimant raises the constitutional infirmity of Section 314 of the Act, 77 P.S. 

§ 651, which concerns a claimant’s responsibility for submitting to a physical examination at the 

request of his employer. We presume the reference to Section 314 is a typographical error, as 

Claimant otherwise challenges the credit provisions contained in Section 3 of Act 111.

7 Even had Claimant properly developed his constitutional argument, we cannot perceive 

how Claimant is harmed by the credit provisions in Section 3 of the Act. Claimant’s disability 

status was first modified on June 28, 2019, approximately eight months after Act 111 was enacted, 

and there is no evidence to suggest that Employer ever paid Claimant partial disability benefits 

under an IRE invalidated by Protz II. As a result, the credit provisions of Section 3 do not apply 

to the instant matter. 
5

Claimant’s purported constitutional argument consists of two paragraphs, the 

first of which simply relates to various provisions of Act 111. The second paragraph 

provides as follows:

The new language in Section [3] of [the] Act, which was 

also included in Act 111, represents an unconstitutional 

deprivation of property rights. Act 111 permits the 

[e]mployer to take a credit for partial disability benefits 

that were paid prior to the effective date of Act 111. By 

providing for such a credit, Act 111 violates the due 

process and equal protections [sic] provisions of the 

Pennsylvania and United States Constitutions.

Claimant’s Br. at 8-9. This generic reference to property rights and constitutional 

due process and equal protection provisions hardly constitutes the development of 

an argument and utterly fails to comport with the requirements of Pa.R.A.P. 2119(a). 

Claimant’s argument is therefore deemed waived as insufficiently developed, and 

we will not address it further. 

The deficiency of Claimant’s second argument exceeds that of his first, as 

Claimant simply asserts that regulations have not yet been promulgated to effectuate 

the provisions of Act 111. “Thus, Claimant respectfully suggests that it is a violation 

of the Act to proceed with IRE’s [sic] before such regulations are adopted.” 

Claimant’s Br. at 9. Claimant’s second argument is also waived, having been 

insufficiently developed.

Claimant’s final argument, the only one brought properly before this Court, 

contends that Act 111 unconstitutionally confers legislative powers to a body other 

than the General Assembly, in violation of article II, Section 1 of the Pennsylvania 
6

Constitution.

8 Claimant asserts that Act 111 has not alleviated the deficiencies 

identified in Protz II, in which our Supreme Court rejected the language in former 

Section 306(a.2) of the Act that an IRE be performed in accordance with “the most 

recent edition” of the AMA Guides.

9

 The Supreme Court held that such language 

effectively adopted, “sight unseen,” any future edition of the AMA Guides, thus 

granting the AMA “unfettered control” over the standards that would determine a 

claimant’s disability status. Protz II, 161 A.3d at 836, 839. 

We disagree with Claimant, as we have previously reviewed, and rejected, 

this argument in Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306, 316 (Pa. 

Cmwlth. 2019), affirmed per curiam (Pa., No. 88 MAP 2019, filed August 18, 2020),

holding that the General Assembly’s enactment of Act 111 did not violate article II, 

Section 1 of the Pennsylvania Constitution, as it merely adopted the existing set of 

standards set forth in the Sixth edition, second printing, of the AMA Guides. 

IV. Conclusion 

Claimant’s first two arguments are waived, having been insufficiently 

developed. As this Court has previously held that the enactment of Section 306(a.3) 

of the Act did not violate article II, Section 1 of the Pennsylvania Constitution, we 

affirm the Board’s order. 

__________________________________

ELLEN CEISLER, Judge

8 Article II, Section 1 provides 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.” 

Pa. Const. art. II, § 1.

9 Formerly 77 P.S. § 511.2.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shane J. Clapper, :

Petitioner :

:

v. : No. 517 C.D. 2021

:

Commonwealth of Pennsylvania :

(Workers’ Compensation Appeal :

Board), :

Respondent :

O R D E R

AND NOW, this 13th day of April, 2022, the April 20, 2021 order of the 

Workers’ Compensation Appeal Board is AFFIRMED. 

__________________________________

ELLEN CEISLER, Judge