IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shane J. Clapper

, :

Petitioner :

:

v. : No. 517 C.D. 2021

: S ubmitted : December 3 0 , 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 w orkers’ c ompensation j udge (WCJ) modifying Claimant’s total

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

conducted pursuant to Section 306(a.3) of the W orkers’ C ompensation 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 disabilit y 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 is suance 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 p rovisions 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 affir med 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 continuatio n” 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) , 26 0 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 del egation 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. T he

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 claim ants who se 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 A dded 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 compensa tion, was entitled to reinstatement as of the date she filed her reinstatement petition )

.4

In reenacting the IRE provisions invalidated by Protz II

, Sectio n 3 (1)

- (2) of Act 111

provide s 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 ba ldly asserts

, without supporting

references to legal authority or fact

, that the partial disability credit provision in

Section 3 ( 2) of Act 111 6 unconstitutionally deprive s 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)

. S ee 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 disabilit y 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

fir st 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 1 11 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 a nd 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 com port with the require ments 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 t hat of his first, as

Claimant simply asserts that regulat ions 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 Gener al Assembly , in violation of article II, Section 1 of the Pennsylvania6

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 contr ol” 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 t he 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, J udge

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 13 th day of April, 20 2 2

, the April 20, 2021 order of the
Workers’ Compensation Appeal Board is AFFIRMED.

__________________________________ ELLEN CEISLER , J udge