IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Craig A. Bradosky, :

Petitioner :

 :

v. : No. 1567 C.D. 2015

 : Submitted: December 8, 2017

Workers’ Compensation Appeal :

Board (Omnova Solutions, Inc.), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: February 2, 2018

Craig A. Bradosky (Claimant) petitions for review of an Order of the 

Workers’ Compensation Appeal Board (Board), dated July 28, 2015, which affirmed 

a Decision and Order by a Workers’ Compensation Judge (WCJ) modifying his 

benefits. Because the modification was based upon an impairment rating evaluation 

(IRE) using the Sixth Edition of the American Medical Association’s Guides to the 

Evaluation of Permanent Impairment (AMA Guides), the IRE is invalid under Protz 

v. Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 

827 (Pa. 2017). Accordingly, we reverse. 

The relevant facts of this case are not in dispute. Claimant strained his left 

calf while in the course of his employment with Omnova Solutions, Inc. (Employer) 
2

on July 18, 2006. Employer issued a Notice of Compensation Payable accepting the 

injury and began paying benefits. Benefits were modified in 2006 but were 

ultimately reinstated in 2010 pursuant to a stipulation by the parties that was 

memorialized in a decision by a WCJ. 

On March 15, 2012, Employer filed a Modification Petition alleging that 

Claimant’s status should be changed from total disability to partial disability as of 

February 1, 2012.1 The basis for the Modification Petition was an IRE performed 

by Dr. Milton Klein, who calculated Claimant’s whole body impairment rating to be 

five percent. The IRE was performed using the Sixth Edition of the AMA Guides. 

In his answer to the Modification Petition, Claimant denied the allegations and also 

challenged the constitutionality of the IRE process. 

Based upon the IRE, the WCJ granted Employer’s Modification Petition 

changing Claimant’s status from total disability to partial disability effective 

February 1, 2012. In her Decision, the WCJ noted Claimant’s continued objection 

to the constitutionality of IREs but found she did not have authority to rule on 

constitutional issues. The WCJ appended to her February 15, 2013 Decision a prior 

decision and order she issued on December 15, 2011, ordering Claimant to appear 

for the IRE. Claimant had refused to attend the IRE on a number of bases, including, 

inter alia, that the IRE provisions “are unconstitutional as a private entity, [the 

AMA,] not the Pennsylvania Legislature, set the disability eligibility standards under 

the Act.” (WCJ Decision, Dec. 15, 2011, Finding of Fact (FOF) ¶ 4(a).) There, the 

 

1 On July 8, 2011, Employer also filed petitions to terminate or suspend benefits, alleging 

Claimant fully recovered or sufficiently recovered from his work injury such that he was able to 

return to work without restrictions as of June 20, 2011. The WCJ denied and dismissed those 

petitions. Employer initially appealed from the WCJ decision but withdrew the appeal to the 

Board. Therefore, the petitions to terminate or suspend benefits are not before us. 
3

WCJ similarly found she could not address the constitutional challenges to IREs and 

overruled Claimant’s objections but expressly noted them for purposes of appeal. 

Claimant appealed to the Board, which affirmed. The Board likewise noted 

Claimant’s argument “that the IRE process is constitutionally defective because it 

impermissibly delegates power to the AMA where the [Workers’ Compensation] 

Act[2]is effectively amended with each new edition of the AMA Guides.” (Bd. Op. 

at 6 n.4.) However, it, too, found that its “scope of review does not include review 

of constitutional questions.” (Id. (citing Ligonier Tavern, Inc. v. Workmen’s Comp. 

Appeal Bd. (Walker), 714 A.2d 1008, 1009 n.7 (Pa. 1998)).) Therefore, it refused to 

address Claimant’s constitutional claims. 

On August 26, 2015, Claimant filed his Petition for Review (Petition). In his 

Petition, Claimant stated:

The Workers’ Compensation Appeal Board was not able to address the 

fact that the Pennsylvania Legislature, pursuant to Section 306(a.2)(1) 

of the Workers’ Compensation Act, has created a constitutionally 

flawed methodology to measure the percentage of impairment of a 

permanently disabled worker. 

Therefore, [Claimant] raise[s] the following arguments before this 

Honorable Court:

A. THE IRE METHODOLOGY OF SECTION 306(a.2)(1)[3] OF 

THE WORKERS’ COMPENSATION ACT IS AN IMPERMISSIBLE 

 

2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708. 

3 Added by Section 4 of the Act of June 24, 1996, P.L. 350, 77 P.S. § 511.2(1). Section 

306(a.2)(1) provides:

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 
4

DELEGATION OF THE GENERAL ASSEMBLY’S LAW MAKING 

POWER TO THE AMA: EACH TIME THAT THE AMA ISSUES A 

NEW EDITION OF THE GUIDES, THE WORKERS’ 

COMPENSATION ACT IS AMENDED[;]

B. DELEGATING LEGISLATIVE AUTHORITY AND 

RULEMAKING TO A PRIVATE BODY, SUCH AS THE AMA, 

ABROGATES THE GENERAL ASSEMBLY’S LEGISLATIVE 

AUTHORITY AND VIOLATES THE FUNDAMENTAL PRECEPTS 

OF A DEMOCRACY[; AND]

C. THE PREVAILING CASE LAW OF PENNSYLVANIA’S 

SISTER STATES PROVIDES ADDITIONAL INSIGHT INTO THE 

TREATMENT OF “THE MOST RECENT EDITION” OF THE 

[AMA] GUIDES[.]

(Petition ¶ 5.) Claimant noted that the issues raised in his appeal were currently 

pending in other cases before this Court, including Protz v. Worker’s Compensation 

Appeal Board (Derry Area School District) (Pa. Cmwlth., No. 1024 C.D. 2014), 

which had been argued before the Court en banc on April 15, 2015. This Court 

issued its opinion reversing the Board in Protz on September 18, 2015, finding that 

Section 306(a.2) violated the Constitution by delegating the authority to make law 

to the AMA. Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 124 A.3d 

406, 412 (Pa. Cmwlth. 2015). A petition for allowance of appeal to the Pennsylvania 

Supreme Court was filed in Protz on October 16, 2015. While that petition was 

pending, Employer filed its Unopposed Motion to Stay, seeking an order staying this 

 

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.”

77 P.S. § 511.2(1). 
5

action “until the Pennsylvania Supreme Court issues a ruling on the identical issue 

in” Protz. (Employer’s Unopposed Motion to Stay at 1.) Employer averred that “[a] 

final determination [in Protz] will establish the applicable law regarding whether the 

IRE methodology of Section 306(a.2)(1) of the Workers’ Compensation Act is 

constitutional.” (Id. ¶ 5.) By Order dated December 9, 2015, the Court granted the 

motion, and the stay was renewed a number of times thereafter. 

On June 20, 2017, the Pennsylvania Supreme Court issued its opinion in 

Protz. The Supreme Court found that Section 306(a.2) of the Act violates Article II, 

Section 1 of the Constitution, which provides that all legislative power “shall be 

vested in a General Assembly, which shall consist of a Senate and a House of 

Representatives,” Pa. Const. art. II, § 1, because it delegates this authority to the 

AMA by allowing it to use the most recent version of the AMA Guides. Protz, 161 

A.3d at 838. The Supreme Court explained the problems with AMA’s “unbridled” 

authority:

The General Assembly did not favor any particular policies relative to 

the Guides’ methodology for grading impairments, nor did it prescribe 

any standards to guide and restrain the AMA’s discretion to create such 

a methodology. Without any parameters cabining its authority, the 

AMA would be free to: (1) concoct a formula that yields impairment 

ratings which are so inflated that virtually every claimant would be 

deemed to be at least 50% impaired; or (2) draft a version of the Guides

guaranteed to yield impairment ratings so miniscule that almost no one 

who undergoes an IRE clears the 50% threshold; or (3) do anything in 

between those two extremes. The AMA could add new chapters to the 

Guides, or it could remove existing ones. It could even create distinct 

criteria to be applied only to claimants of a particular race, gender, or 

nationality.

Consider also that the AMA could revise the Guides once every ten 

years or once every ten weeks. If the AMA chooses to publish new 

editions infrequently, Pennsylvania law may fail to account for recent 
6

medical advances. By contrast, excessive revisions would likely pose 

severe administrative headaches, inasmuch as the Guides automatically 

have the force and effect of law once published. As these hypotheticals 

illustrate, the General Assembly gave the AMA de facto, unfettered 

control over a formula that ultimately will determine whether a 

claimant’s partial-disability benefits will cease after 500 weeks.

Equally problematic, the General Assembly did not include in Section 

306(a.2) any of the procedural mechanisms that this Court has 

considered essential to protect against “administrative arbitrariness and 

caprice.” The General Assembly did not, for example, require that the 

AMA hold hearings, accept public comments, or explain the grounds 

for its methodology in a reasoned opinion, which then could be subject 

to judicial review. Further, the AMA physicians who author the Guides

are, of course, not public employees who may be subject to discipline 

or removal.

Id. at 835-36 (footnotes and citations omitted).

The Supreme Court struck down Section 306(a.2) in its entirety, finding it 

could not be severed from the Act. Id. at 841 (citing 1 Pa. C.S. § 1925 (“[P]rovisions 

of every statute shall be severable . . . unless the court finds that the valid provisions 

of the statute are so essentially and inseparably connected with, and so depend upon, 

the void provision or application, that it cannot be presumed the General Assembly 

would have enacted the remaining valid provisions without the void one.”)). 

Shortly after the Supreme Court’s decision in Protz, this Court lifted the stay 

in the instant matter, and Claimant filed an Application for Summary Relief, 

asserting Protz controls and asking the Court to reverse the decision of the Board 

and WCJ and reinstate Claimant to total disability benefits. Employer filed an 

answer, asserting for the first time that Claimant did not preserve his constitutional 

challenge and, therefore, waived the issue on appeal. By Order dated August 21, 

2017, this Court directed the Application for Summary Relief be addressed with the 

merits of the Petition. 
7

On appeal,4 Claimant raised one issue: whether the holding in Protz applies 

to the instant case, which was pending when Protz was decided. Employer contends 

the issue is waived because it was not raised in the Petition, citing Winchilla v. 

Workers’ Compensation Appeal Board (Nexstar Broadcasting), 126 A.3d 364 (Pa. 

Cmwlth. 2015), or, alternatively, seeks a remand to determine whether modification 

of Claimant’s benefits is proper under some other mechanism, citing Kachinski v. 

Workmen’s Compensation Appeal Board (Vepco Construction Company), 532 A.2d 

374 (Pa. 1987). Claimant responds that the Protz issue has been raised at each and 

every level of review and that Employer’s assertions to the contrary make its contest 

unreasonable. 

A review of the record clearly shows that Claimant has challenged the 

constitutionality of IREs throughout this litigation. Claimant first asserted that the 

IRE provision was unconstitutional when he refused to attend the IRE and had to be 

ordered by the WCJ to attend. The WCJ in that order, as well as in her more recent 

Decision, noted Claimant’s challenge to the constitutionality of Section 306(a.2), but 

explained that she had no authority to adjudicate constitutional issues. The Board 

likewise found itself handcuffed when Claimant raised the constitutional issue 

before it. In his Petition, Claimant again asserted the issue that Section 306(a.2) 

failed to pass constitutional muster. 

Employer maintains that Claimant’s Petition is defective because it does not 

comply with Rule 1513(d) of the Pennsylvania Rules of Appellate Procedure. The 

 

4 Our “standard of review is limited to determining whether constitutional rights were 

violated, whether an error of law was committed, or whether necessary findings of fact are 

supported by substantial evidence.” Thompson v. Workers’ Comp. Appeal Bd. (Exelon Corp.), 

168 A.3d 408, 412 n.3 (Pa. Cmwlth. 2017). 
8

version of Rule 1513(d) that was in effect at the time Claimant’s Petition was filed 

provided, in pertinent part:

Content of appellate jurisdiction petition for review. An appellate 

jurisdiction petition for review shall contain: (1) a statement of the 

basis for the jurisdiction of the court; (2) the name of the party or person 

seeking review; (3) the name of the government unit that made the order 

or other determination sought to be reviewed; (4) reference to the order 

or other determination sought to be reviewed, including the date the 

order or other determination was entered; (5) a general statement of the 

objections to the order or other determination; and (6) a short statement 

of the relief sought. A copy of the order or other determination to be 

reviewed shall be attached to the petition for review as an exhibit. The 

statement of objections will be deemed to include every subsidiary 

question fairly comprised therein. No notice to plead or verification is 

necessary.

Former Pa.R.A.P. 1513(d).5

Employer contends that the Petition does not reference the orders sought to be 

reviewed, including the date the orders were entered, pursuant to Pa.R.A.P. 

1513(d)(4), but Paragraph 2 of the Petition states that “Petitioner is appealing from 

the decision of the [Board] dated July 28, 2015.” (Petition ¶ 2.) Employer also 

argues that the Petition does not set forth a short statement of the relief sought, 

pursuant to Pa.R.A.P. 1513(d)(6); however, the Wherefore Clause states that the 

“Petitioner prays [that this Court] grant the Petition for Review, reverse the decision 

of the [Board], and grant such other relief as may be justified under the 

circumstances.” (Petition, Wherefore Clause.) Finally, Employer asserts the 

 

5

In December 2014, the rule was amended to modify, inter alia, subpart (5), which now 

reads: “a general statement of the objections to the order or other determination, but the omission 

of an issue from the statement shall not be the basis for a finding of waiver if the court is able to 

address the issue based on the certified record.” Pa.R.A.P. 1513(d)(5). In its official note, the 

amendment was explained as an attempt “to preclude a finding of waiver if the court is able, based 

on the certified record, to address an issue not within the issues stated in the petition for review 

but included in the statement of questions involved and argued in a brief.” Pa.R.A.P. 1513, Official 

Note 2014. 
9

Petition does not include a general statement of objections, pursuant to Pa.R.A.P. 

1513(d)(5) and cites this Court’s decision in Winchilla for support. Unlike 

Winchilla, wherein the claimant only generally asserted that the “IRE provisions . . .

as applied to [claimant] and/or facially, are unconstitutional, as they are capricious, 

arbitrary, not reasonably calculated, confiscatory, not used to assess disability in the 

workers’ compensation sense, improperly disregard evidence that [claimant] was 

totally disabled and improperly extinguish rights,” 126 A.3d at 367 (quoting 

claimant’s petition for review ¶ 8), Claimant here expressly asserts in his Petition 

that Section 306(a.2)(1) “is an impermissible delegation of the General Assembly’s 

law making power to the AMA.” (Petition ¶ 5.) Although Claimant does not identify 

Article II, Section 1 of the Pennsylvania Constitution by name, this does not mean 

that Claimant did not properly preserve the issue. What is perhaps most puzzling 

about Employer’s current position is its about-face from the very position it asserted 

in its Unopposed Motion for Stay, wherein it recognized that disposition of Protz

would control this case. In short, we reject Employer’s arguments that the Petition 

does not comply with the rules and that the issue concerning the constitutionality of 

the IRE provision is waived. 

That brings us to the merits of Claimant’s arguments. Because this issue is 

controlled by Protz, we need not devote a great deal of discussion to it now. Suffice 

it to say that the Pennsylvania Supreme Court has declared Section 306(a.2) to be an 

unconstitutional delegation of legislative power and struck the provision in its 

entirety. As a result, we are compelled to reverse the Opinion and Order of the 

Board, as we did under a similar factual scenario in Thompson v. Workers’ 

Compensation Appeal Board (Exelon Corporation), 168 A.3d 408, 412-13 (Pa. 

Cmwlth. 2017). 
10

In an effort to avoid reversal, Employer argues in the alternative that 

modification of Claimant’s benefits is still appropriate under Kachinski. Under 

Kachinski, the Supreme Court set forth the following procedure for modification 

petitions:

1. The employer who seeks to modify a claimant’s benefits on the basis 

that he has recovered some or all of his ability must first produce 

medical evidence of a change in condition.

2. The employer must then produce evidence of a referral (or referrals) 

to a then open job (or jobs), which fits in the occupational category 

for which the claimant has been given medical clearance, e.g., light 

work, sedentary work, etc.

3. The claimant must then demonstrate that he has in good faith 

followed through on the job referral(s).

4. If the referral fails to result in a job then claimant’s benefits should 

continue.

532 A.2d at 380. 

Claimant argues, in response, that Employer failed to preserve this issue by 

not filing a cross-petition for review and, even if the issue was properly before the 

Court, the record is devoid of any evidence to support its application here. We agree

with both arguments. First, the only basis asserted by Employer in its Modification 

Petition was the IRE. Employer never asserted an alternative basis to modify 

Claimant’s benefits until now, after Protz was decided, dashing any hope it had of 

success on the merits. Second, as Claimant points out, the record was not developed 

with Kachinski in mind, and therefore, there is no evidence of record upon which to 

evaluate it. 

Finally, Petitioner asserts that although Employer’s contest was once 

reasonable, it has since turned unreasonable. Specifically, he contends that 
11

Employer’s opposition to his Application for Summary Relief is unreasonable, 

particularly in light of the Supreme Court’s holding in Protz. Claimant further cites 

Employer’s conduct in denying Protz controlled, especially after Employer itself

sought a stay of this action pending resolution of Protz, which Employer then viewed 

as dispositive. The unreasonableness of Employer’s contest was compounded, in 

Claimant’s view, by its inaccurate representations that Claimant failed to comply 

with the rules. It seeks a remand to the WCJ to consider the imposition of counsel 

fees. Given the state of the record, we agree that there is a question about the 

reasonableness of Employer’s contest. Therefore, we will remand the matter for 

consideration of reasonable counsel fees. 

For the foregoing reasons, the Board’s Opinion and Order modifying 

Claimant’s benefits from full disability to partial disability is reversed and the matter 

is remanded for a determination related to the reasonableness of Employer’s contest. 

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Craig A. Bradosky, :

Petitioner :

 :

v. : No. 1567 C.D. 2015

 :

Workers’ Compensation Appeal :

Board (Omnova Solutions, Inc.), :

Respondent :

O R D E R

NOW, February 2, 2018, Petitioner Craig A. Bradosky’s Application for 

Summary Relief is GRANTED. The Order of Workers’ Compensation Appeal 

Board, dated July 28, 2015, is REVERSED, and the above-captioned matter is 

remanded for a determination regarding the reasonableness of Respondent Omnova 

Solutions, Inc.’s contest, following the Supreme Court’s decision in Protz v. 

Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827 

(Pa. 2017). 

Jurisdiction relinquished.

_____________________________________

RENÉE COHN JUBELIRER, Judge