IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania AFL-CIO, by its :

Trustees ad litem, Richard W. :

Bloomingdale and Frank Snyder, :

Petitioners :

 :

 :

v. : No. 62 M.D. 2019

 : Argued: September 10, 2019

Commonwealth of Pennsylvania, :

Governor Tom Wolf, in his official :

capacity; W. Gerard Oleksiak, :

Secretary of the Department of Labor :

and Industry, in his official capacity, :

Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY

JUDGE COHN JUBELIRER FILED: October 11, 2019

Before this Court in its original jurisdiction are the Preliminary Objections

(POs) of the Commonwealth of Pennsylvania, Governor Tom Wolf, in his official 

capacity, and W. Gerard Oleksiak, Secretary of the Department of Labor and 

Industry, in his official capacity (together, Commonwealth), to the Petition for 

Review in the Nature of a Request for Declaratory Relief and Preliminary and 

Permanent Injunctive Relief (Petition for Review) filed by the Pennsylvania AFLCIO, by its Trustees ad litem, Richard W. Bloomingdale and Frank Snyder (PA 

AFL-CIO). In the Petition for Review, PA AFL-CIO asserts that Section 306(a.3) 
2

of the Workers’ Compensation Act1(Act), which provides for impairment rating 

evaluations (IRE) and was enacted by the General Assembly and signed by 

Governor Wolf in 2018, violates article II, section 1 of the Pennsylvania 

Constitution2 because it constitutes an unlawful delegation of the General 

Assembly’s legislative authority. Also before the Court is the Application to 

Intervene of the Leaders of the Pennsylvania House of Representatives 

(Application)3filed pursuant to Pennsylvania Rule of Civil Procedure 2327(4), 

Pa.R.C.P. No. 2327(4). House Leaders assert they have a legally enforceable 

interest that may be affected by the resolution of the Petition for Review and 

should be allowed to intervene to protect that interest.

Our Supreme Court found Section 306(a.2), the predecessor to Section 

306(a.3), unconstitutional under article II, section 1 in Protz v. Workers’ 

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

2017) (Protz II). Before the Court is the Commonwealth’s demurrer to PA AFLCIO’s claim that Section 306(a.3) suffers from the same constitutional infirmity. 

Having carefully reviewed the Petition for Review, the POs, and our Supreme 

Court’s decision in Protz II, we conclude PA AFL-CIO has not stated a legally 

sufficient claim under article II, section 1, and, therefore, we sustain the 

 

1 Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of October 

24, 2018, P.L. 714, 77 P.S. § 511.3.

2 PA. CONST. art. II, § 1 (“[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.”).

3 Specifically, the Application seeks intervention on behalf of Speaker of the House 

Michael C. Turzai, Majority Leader Bryan D. Cutler, House Majority Whip Kerry A. 

Benninghoff, Chair of the House Appropriations Committee Stan E. Saylor, Chair of the House 

Majority Caucus Marcy Toepel, Secretary of the House Majority Caucus Mike Reese, 

Administrator of the House Majority Caucus Kurt A. Masser, and Chair of the House Policy 

Committee Donna Oberlander (collectively, House Leaders). House Leaders have submitted 

their own preliminary objections for consideration if their Application is granted.
3

Commonwealth’s POs, dismiss the Petition for Review, and dismiss the 

Application as moot. 

I. Background

A. Section 306(a.2) of the Act

In 1996, the General Assembly enacted Section 306(a.2) of the Act,4 which 

allowed employers to require workers’ compensation (WC) claimants to undergo 

 

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

Section 1 of the Act of October 24, 2018, P.L. 714. Section 306(a.2) was found unconstitutional 

by this Court in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 

124 A.3d 406 (Pa. Cmwlth. 2015) (Protz I), aff’d in part, 161 A.3d 827 (Pa. 2017). Relevantly, 

Section 306(a.2)(1), (2) provided: 

(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 
4

an IRE, during which a physician would determine the claimant’s “degree of 

impairment” that was attributable to the claimant’s compensable injury. Formerly 

77 P.S. § 511.2(1). Under this section, the physician was to make this assessment 

by applying the methodology set forth in “the most recent edition” of the American 

Medical Association’s (AMA) Guide to the Evaluation of Permanent Impairment 

(Guides). Id. If the result of the IRE was a whole-body impairment rating of less 

than 50 percent, the claimant’s benefits would be modified from total disability to 

partial disability. While this change did not alter the amount of weekly benefits the 

claimant received, it did cap the receipt of those benefits to 500 weeks. Formerly 

77 P.S. § 511.2(2). At the time Section 306(a.2) was enacted, the “most recent 

edition” of the Guides was the Fourth Edition. As time passed, however, the AMA 

issued two new editions, the Fifth Edition and Sixth Edition. Each new edition 

meant that claimants who underwent IREs were subject to the newest edition’s 

methodology.

 

B. Constitutional Challenge to Section 306(a.2)

In 2011, Mary Ann Protz underwent an IRE, using the Sixth Edition of the 

Guides, at the request of her employer, Derry Area School District (Derry), the 

result of which was a 10-percent impairment rating. Protz II, 161 A.3d at 830. 

Based on the IRE, a Workers’ Compensation Judge modified Protz’s benefits from 

total to partial. Protz challenged this modification on the basis that the General 

Assembly unconstitutionally delegated to the AMA the authority to establish the 

 

disability benefits under clause (b): Provided, however, That no reduction 

shall be made until sixty days’ notice of modification is given.

Formerly 77 P.S. § 511.2(1), (2).
5

criteria for evaluating a claimant’s permanent impairment when it required that the 

“most recent edition” of the Guides be used. This Court agreed, holding that only 

the General Assembly has the power to make laws and cannot, constitutionally, 

delegate that power to any other branch of the government or other entity. Protz v. 

Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 124 A.3d 406, 416 (Pa. 

Cmwlth. 2015) (Protz I), aff’d in part by Protz II. By requiring the use of “the 

most recent edition” of the Guides, we explained, the General Assembly had, 

without making basic policy choices related to the issue of impairment or 

providing adequate standards to guide and restrain the AMA, delegated its 

authority to make laws to the AMA. Id. at 415-16. This Court further concluded 

that, even if the General Assembly had made those policy choices and provided 

adequate standards, the delegation was constitutionally infirm because the AMA 

was a private organization. Id. at 416. To remedy this constitutional violation, we 

did not strike Section 306(a.2) in its entirety, instead holding that all IREs had to 

be performed using the Fourth Edition of the Guides, the version that existed at the 

time Section 306(a.2) was enacted.

Protz and Derry appealed to the Supreme Court, which affirmed in part and 

reversed in part. After reviewing “the heart of the non-delegation doctrine,” the 

Supreme Court held the General Assembly had delegated its authority to the AMA 

without “favor[ing] any particular policies relative to the Guides’ methodology for 

grading impairments” or “prescrib[ing] any standards to guide and restrain the 

AMA’s discretion to create such a methodology.” Protz II, 161 A.3d at 835. 

Observing that the AMA could revise the Guides at any time, adding new chapters 

or removing existing chapters, which would then have to be used by physicians in 

the IRE process, the Supreme Court held that the General Assembly had given 
6

“AMA de facto, unfettered control over a formula that ultimately will determine 

whether a claimant’s partial[]disability benefits will cease after 500 weeks.” Id. at 

835-36. It similarly noted that the General Assembly has not “include[d] in 

Section 306(a.2) any of the procedural mechanisms that [the] Court has considered 

essential to protect against ‘administrative arbitrariness and caprice,’” including 

the holding of hearings, taking public comments, or explaining the bases for its 

methodology. Id. at 836. As for the AMA’s private status, the Supreme Court 

explained there was tension in the jurisprudence regarding whether delegation to a 

private entity would be constitutional, which did not need to be resolved at that 

time. However, it expressed that its decision “should not be read as an 

endorsement or rejection of the Commonwealth Court’s view that” such delegation 

“is per se unconstitutional.” Id. at 838. 

The remedy for the violation of the non-delegation clause, the Supreme 

Court concluded, was not to revert to the Fourth Edition of the Guides, but to strike 

down Section 306(a.2) in its entirety because the unconstitutional provisions could 

not be separated from the valid provisions. Id. at 841. In response to the argument 

that the Fourth Edition, the edition in effect at the time of Section 306(a.2)’s 

enactment, should be used, the Supreme Court held it would “beggar[] belief that 

the General Assembly would have used the words ‘most recent edition’ when it 

really meant ‘Fourth Edition.’” Id. at 839. Thus, the Supreme Court reversed that 

part of Protz I.
7

C. Section 306(a.3) of the Act

After the Supreme Court’s decision in Protz II, the General Assembly 

repealed Section 306(a.2) and enacted Section 306(a.3). Section 306(a.3) provides, 

in pertinent part:

(1) When an employe has received total disability compensation 

pursuant to clause (a) for a period of one hundred and 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 and 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 American Medical 

Association “Guides to the Evaluation of Permanent 

Impairment,” 6th edition (second printing April 2009).

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

a threshold impairment rating that is equal to or greater than thirtyfive per centum impairment under the American Medical 

Association “Guides to the Evaluation of Permanent 

Impairment,” 6th edition (second printing April 2009), the 

employe shall be presumed to be totally disabled and shall 

continue to receive total disability compensation benefit under 

clause (a). If such determination results in an impairment rating 

less than thirty-five per centum impairment under the American 

Medical Association “Guides to the Evaluation of Permanent 

Impairment,” 6th edition (second printing April 2009), 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.

. . . .
8

77 P.S. § 511.3(1), (2) (emphasis added). Section 306(a.3) changed the IRE 

process from the pre-Protz II process in two ways: (1) it reduced the threshold 

impairment rating from 50 percent to 35 percent; and (2) IRE determinations were 

to be made “pursuant to the American Medical Association ‘Guides to the 

Evaluation of Permanent Impairment,’ 6th edition (second printing April 2009)”

rather than “pursuant to the most recent edition of the American Medical 

Association ‘Guides to the Evaluation of Permanent Impairment.’” Compare 77 

P.S. § 511.3, with former 77 P.S. § 511.2.

II. The Current Petition for Review and Responses

A. Petition for Review

On February 5, 2019, PA AFL-CIO filed the instant Petition for Review 

under the Declaratory Judgments Act, 42 Pa. C.S. §§ 7531-7541, seeking 

declaratory (Count I) and injunctive relief (Count II). The PA AFL-CIO alleges 

that “[d]ue to this amendment to the Act, workers represented by the PA AFL-CIO 

will lose [WC] annuity benefits.” (Petition at 4.) PA AFL-CIO, through its 

various affiliated local unions, councils, and federations, represents more than 

800,000 workers throughout the Commonwealth, including “workers who have 

been, or could be, subject to workplace injury and/or disease.” (Id. ¶ 2.) On this 

basis, PA AFL-CIO claims it has “associational standing to assert state 

constitutional claims on behalf of its represented bargaining unit employees.” (Id.

¶ 3.) PA AFL-CIO brought this action against the Governor and the Secretary as 

they “possess the authority to generate and implement decisions and policies on 

behalf of the Commonwealth, including over the administration and enforcement 

of the . . . Act.” (Id. ¶ 7.)
9

The Petition for Review contends that, through Section 306(a.3)’s use of the 

“American Medical Association ‘Guides to the Evaluation of Permanent 

Impairment,’ 6th edition (second printing April 2009),” language similar to that

used in former Section 306(a.2), the General Assembly has, again, violated article 

II, section 1 of the Pennsylvania Constitution. This amended language, PA AFLCIO asserts, delegates the General Assembly’s legislative function to the AMA, a 

private entity. It did so without “mak[ing] ‘the basic policy choices,’” or 

establishing “adequate standards which will guide and restrain the exercise of the 

delegated administrative functions,” as required by Protz II, to render such 

delegation constitutionally valid. (Petition ¶ 37 (quoting Protz II, 161 A.3d at 

834).) Further, PA AFL-CIO avers that nothing in Section 306(a.3) requires the

AMA to “hold hearings, accept public comments, or explain the grounds for its 

methodology in a reasoned opinion, which then could be subject to judicial 

review” nor are the “physicians who author the Guides . . . public employees who 

may be subject to discipline or removal,” yet another reason, PA AFL-CIO 

maintains, Section 306(a.3) is unconstitutional. (Id. ¶¶ 40-41 (quoting Protz II, 

161 A.3d at 836).) Finally, PA AFL-CIO challenges the General Assembly’s 

delegation of its legislative authority to a private entity, the AMA, “which is[] 

‘isolated from the political process, and, . . . [is] shielded from political 

accountability.’” (Id. ¶ 42 (quoting Protz II, 161 A.3d at 837).) Based on these 

claims, PA AFL-CIO seeks a declaration that Section 306(a.3) violates article II, 

section 1 because the General Assembly impermissibly delegated its legislative 

authority. It also requests a preliminary and permanent injunction to enjoin the 

enforcement of Section 306(a.3), maintaining that it satisfies the requirements for 

obtaining such relief.
10

B. The Commonwealth’s POs

The Commonwealth filed its POs in the nature of a demurrer, asserting that 

the Petition for Review should be dismissed because it is legally insufficient. In its 

demurrer to Count I seeking declaratory relief, the Commonwealth contends that 

there has been no improper delegation to the AMA because “physicians are limited 

to using the standards set forth in the [Sixth] Edition, second printing – regardless 

of future editions being printed or changes being made to the current edition.” 

(POs ¶ 18.) According to the Commonwealth, in enacting Section 306(a.3) and 

specifically identifying the Sixth Edition, second printing, which was already in 

existence at the time of enactment, the General Assembly adopted that edition as 

the standard for determining a claimant’s impairment rating. (Id. ¶ 24.) The 

adoption of existing standards, the Commonwealth asserts, is permissible under 

Protz II and is not an improper delegation of the General Assembly’s legislative 

functions. As there has been “no delegation of [the General Assembly’s] rulemaking authority to the AMA,” the Commonwealth contends, “there is no 

violation of the non-delegation doctrine . . . ,” and the Petition for Review is 

without merit. (Id. ¶¶ 20, 25-26.) For the same reasons, the Commonwealth 

asserts in its demurrer to Count II, the Petition for Review is legally insufficient to 

state a claim for injunctive relief. (Id. ¶¶ 30-34.)

PA AFL-CIO filed an Answer in which it denied many of the 

Commonwealth’s averments as being conclusions of law. It did, however, admit 

that the Sixth Edition of the Guides was in existence in 2018 when the General 

Assembly enacted Section 306(a.3). (Answer ¶ 19.) PA AFL-CIO further 

admitted that “the General Assembly adopted the [Sixth] Edition, second printing, 
11

of the AMA’s Guides” in Section 306(a.3). (Id. ¶ 24 (emphasis added).) PA AFLCIO responds to the averments in the demurrer to Count II by denying that the 

Sixth Edition, second printing, “constitute[d] standards that were already in 

existence” and that the General Assembly’s adoption thereof did not violate article 

II, section 1 of the Pennsylvania Constitution. (Id. ¶ 32.)

III. Analysis

“[I]n ruling on . . . preliminary objections, we must accept as true all wellpleaded material allegations in the petition for review” and any reasonable 

inferences that may be drawn from those averments. Meier v. Maleski, 648 A.2d 

595, 600 (Pa. Cmwlth. 1994). We are not, however, bound by legal conclusions, 

expressions of opinion, unwarranted inferences from facts, or argumentative 

allegations. Id. We may sustain preliminary objections only where the law makes 

clear that the petitioner cannot succeed on the claim, resolving any doubt in the 

petitioner’s favor. Id. “We review preliminary objections in the nature of a 

demurrer under the above guidelines and may sustain a demurrer only when a 

petitioner has failed to state a claim for which relief may be granted.” Armstrong 

Cty. Mem’l Hosp. v. Dep’t of Pub. Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013).

Article II, section 1 of the Pennsylvania Constitution states: “The 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. To

avoid violating this provision, the General Assembly must make the “basic policy 

choices involved in [its] ‘legislative power’” when it authorizes some other entity

to act. Protz II, 161 A.3d at 833. This restriction services dual purposes: “it 

ensures that duly authorized and politically responsible officials make all of the 

necessary policy decisions, as is their mandate per the electorate,” and it 
12

“protect[s] against the arbitrary exercise of unnecessary and uncontrolled 

discretionary power.” Id. (citation omitted). The restriction on delegation is not 

absolute, however, and the General Assembly may “assign the authority and 

discretion to execute or administer a law” to some other entity if it makes “the 

basic policy choices” and “include[s] ‘adequate standards which will guide and 

restrain the exercise of the delegated administrative functions.’” Id. at 833-34 

(quoting Pennsylvanians Against Gambling Expansion Fund, Inc. v. 

Commonwealth, 877 A.2d 383, 418 (Pa. 2005) (PAGE)). Accordingly, a “law 

must contain some intelligible principle to which the person or body authorized to 

[act] is directed to conform.” Id. at 834 (internal quotation marks and citation 

omitted) (alteration in the original). Further, a law must include “procedural 

mechanisms that serve to limit or prevent the arbitrary and capricious exercise of 

the delegated power.” Id.

In Protz II, our Supreme Court applied these standards to conclude that 

Section 306(a.2) was an impermissible delegation of the General Assembly’s 

legislative authority to the AMA because that provision did not include any

standards or basic policy choices to restrain the AMA’s future enactment of the 

Guides, which would then become the law by which IREs would be performed. 

Id. at 835-36. This left the AMA with the ability to “revise the Guides once every 

ten years or once every ten weeks,” which “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.” Id. at 835-36 (emphasis 

added). Because Section 306(a.2) failed to meet even the basic requirements for a 

permissible delegation, the Supreme Court did not address the question of whether 

the General Assembly’s delegation to a “private entity” could ever validly occur. 
13

Although it cited precedent raising concerns about such delegations, including the 

lack of political accountability of a private entity, it also cited other precedent that 

did not rule out the constitutional propriety of those delegations. Id. at 837-38. 

However, if the General Assembly adopts an existing set of standards as 

its own, there is no delegation and no violation of article II, section 1 of the 

Pennsylvania Constitution. As our Supreme Court in Protz II explained:

it is important to clarify that the non-delegation doctrine does not 

prevent the General Assembly from adopting as its own a 

particular set of standards which already are in existence at the 

time of adoption. However, for the reasons we have explained, the 

non-delegation doctrine prohibits the General Assembly from 

incorporating, sight unseen, subsequent modifications to such 

standards without also providing adequate criteria to guide and 

restrain the exercise of the delegated authority.

Id. at 838-39 (citing PAGE, 877 A.2d at 418) (emphasis added). 

PA AFL-CIO claims that the General Assembly has delegated its authority 

to the AMA, as it had in Section 306(a.2), despite the AMA being a private entity 

that is not subject to political process and without making the basic policy 

decisions and imposing adequate standards to restrain the AMA’s discretion to act. 

Although PA AFL-CIO admits that the Sixth Edition, second printing, was in 

existence at the time of Section 306(a.3)’s enactment, it asserts this enactment did 

not favor any particular policies as to the Guides’ methodology and use by the IRE 

physician and, therefore, “was not an exercise in policymaking, but a careless 

attempt to correct its error with [Section 306(a.2)].” (PA AFL-CIO’s Brief (Br.) at 

15; see also PA AFL-CIO’s Suppl. Br. at 9-10.) Further, PA AFL-CIO contends 

the adoption of the Sixth Edition, second printing, without evidence that the AMA 

“h[e]ld hearings, accept[ed] public comments, or explain[ed] the grounds for its 
14

methodology,” reflects that the General Assembly did not make the basic policy 

choices or standards to guide and restrain the AMA’s action. (Id. at 16 (quoting 

Protz II, 161 A.3d at 836) (alterations in original); see also PA AFL-CIO’s Suppl.

Br. at 10-11.) PA AFL-CIO contends this lack of guidance is similar to that found 

unconstitutional in West Philadelphia Achievement Charter Elementary School v. 

School District of Philadelphia, 132 A.3d 957 (Pa. 2016), in which the Supreme 

Court held that the delegation of authority to the School Reform Commission for 

the School District of Philadelphia to, among other things, suspend regulations and 

statutory requirements to improve the school district’s finances was 

unconstitutional because “it did not include concrete measures to channel the 

[School Reform] Commission’s discretion to wield its suspension power, nor . . . 

safeguards to protect against arbitrary, ad hoc decision making . . . .” (AFL-CIO’s 

Br. at 18 (quoting Protz II, 161 A.3d at 834-35).) 

While PA AFL-CIO’s arguments raise important points as to nondelegation, those points are not applicable here because, as the Commonwealth 

responds, no delegation to the AMA occurred in the enactment of Section 

306(a.3). As clarified by the Supreme Court in Protz II, it is the adoption, “sight 

unseen” of future standards or editions, without guidance by the General 

Assembly as to the basic policy decisions and standards to restrain the discretion of 

the entity setting those standards that is problematic. 161 A.3d at 839 (emphasis 

added). 

For example, this Court recently invalidated certain statutory provisions 

related to the sale of fireworks in certain locations as violating the non-delegation 

doctrine. In Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1228 

(Pa. Cmwlth. 2018), the statutory provision at issue referenced future standards of 
15

a private entity’s code by using the phrase “or any subsequent edition,” without 

including any guidelines or standards to restrain the private entity’s future 

enactments. Id. at 1213. We held that the use of the phrase “any subsequent 

edition” suffered the same constitutional infirmity as Section 306(a.2) of the Act 

and, under Protz II, was an unconstitutional delegation because it allowed the 

private entity “to create, alter, or remove, as frequently or infrequently as it 

chooses, any standard it chooses . . . .” Id. at 1227-28.

In contrast, we held in Pennsylvania Builders Association v. Department of 

Labor and Industry, 4 A.3d 215, 224-26 (Pa. Cmwlth. 2010), that the General 

Assembly did not violate the non-delegation doctrine when it delegated the 

authority to adopt the Uniform Construction Code (UCC), see 34 Pa. Code §§ 401-

401.16, 403.1-403-142, including future editions, to the Department of Labor and 

Industry (L & I) and International Code Council (ICC). This was because, when it 

did so, the General Assembly made the basic policy choices and imposed definite 

and reasonable standards for the adoption of future revisions. One such standard 

was the General Assembly’s establishment of a review and advisory council, made 

up of construction industry representatives, which reviewed and evaluated any 

changes to the UCC and made recommendations as to whether the changes were 

consistent with Pennsylvania’s law or inappropriate for inclusion in that law. If the 

advisory council recommended that a change was inappropriate, L & I was 

required to exclude that change when it adopted the most recent edition of the 

UCC. Pennsylvania Builders Ass’n, 4 A.3d at 218, 222. Such process meant that 

there was no adoption of the ICC codes “sight unseen.” Id. at 222. Further, the 

General Assembly provided criteria to be used by the advisory council to 

determine whether changes to the UCC should be omitted from Pennsylvania’s 
16

law, another means of restricting the scope of the delegated authority. Id. Having 

made the basic policy choices and imposed reasonable standards on the delegated 

authority, we held the General Assembly did not violate article II, section 1 of the 

Pennsylvania Constitution. Id. at 223-24.

The non-delegation doctrine does not prohibit the General Assembly from 

“adopting as its own a particular set of standards which already are in existence at 

the time of adoption.” Protz II, 161 A.3d at 838 (emphasis added). That is what 

the General Assembly did here – it adopted the Sixth Edition, second printing, 

which PA AFL-CIO admits was in existence when Section 306(a.3) was enacted, 

“as its own.” Id. When such an adoption occurs, the General Assembly is 

exercising its legislative and policy making authority by deciding that it is those 

particular standards that will become the law of this Commonwealth. It is not 

delegating its authority to legislate. The General Assembly made a policy decision 

regarding the standards that will apply to IREs in the Commonwealth going 

forward. PA AFL-CIO may disagree with that policy decision, but that does not 

make that decision an improper delegation of the General Assembly’s legislative 

authority.

While PA AFL-CIO points to concerns regarding the AMA’s process of 

enacting its standards, these have little bearing on the General Assembly’s actions 

in specifically adopting as law a particular, existing set of standards. The standards 

adopted were not “unseen” or unknown to the General Assembly at the time it 

enacted Section 306(a.3). Moreover, these adopted standards will remain the 

standards by which impairment ratings are determined unless or until the 

General Assembly revisits the issue and amends the WC Act to change those 

standards. The AMA’s future actions in revising the Guides, whether next 
17

month, next year, or in 10 years, will have no effect on the status of IRE 

determinations in Pennsylvania absent future action by the General Assembly. 

Thus, Section 306(a.3) is significantly different than Section 306(a.2) and the 

challenged legislation in West Philadelphia Achievement Charter Elementary 

School and Phantom Fireworks. This is also different from the discussion in Protz

II regarding the delegation of authority to a private entity. Protz II, 161 A.3d at 

837-38. The cases cited by Protz II describe the delegation of future action, such 

as making governmental appointments, Hetherington v. McHale, 329 A.2d 250, 

254 (Pa. 1974), and exercising regulatory power, Olin Mathieson Chemical 

Corporation v. White Cross Stores, Inc., 199 A.2d 266, 267-68 (Pa. 1964), or 

authority over chiropractic continuing education, State Board of Chiropractic 

Examiners v. Life Fellowship of Pennsylvania, 272 A.2d 478, 479 (Pa. 1971). 

Here, it is the General Assembly that adopted the standards, and, importantly,

unlike the AMA, the General Assembly clearly is not isolated from the political 

process and shielded from political accountability for its actions. 

As for PA AFL-CIO’s assertions that Section 306(a.3) does not restrain or 

guide IRE physicians on how to use the Sixth Edition, the proper application of the 

Sixth Edition, second printing’s standards would be a question answered during a 

challenge to an IRE’s results. The Guides establish a standard methodology for 

grading medical impairments, which is used by WC systems in the federal 

government, 44 states, and 2 commonwealths to measure a worker’s medical 

impairment. Protz II, 161 A.3d at 835 n.3. It is apparent from Section 306(a.3) 

that an IRE physician is to utilize the Guides’ methodology, along with the results 

of the physician’s review of the worker’s medical condition, to ascertain the degree 

of the worker’s medical impairment attributable to the work-related injury. These
18

determinations are not made in a vacuum, but are made within the existing WC 

administrative framework, which requires IRE physicians to submit written 

documentation to support their conclusions and allows for administrative and 

judicial challenges to those conclusions. See, e.g., Section 306(a.3)(4), 77 P.S. 

§ 511.3(4) (setting forth a claimant’s right to appeal IRE results); 34 Pa. Code 

§ 123.105(c) (requiring IRE physicians to complete various forms and reports 

related to the IRE’s results), (d)(5) (providing the right to appeal the adjustment of 

a claimant’s benefit status by filing a petition for review); Duffey v. Workers’ 

Comp. Appeal Bd. (Trola-dyne, Inc.), 152 A.3d 984, 990-91 (Pa. 2017) (holding 

that, in performing an IRE, a physician must apply professional judgment to assess 

conditions that could be fairly attributable to a compensable injury and the failure 

to exercise that judgment may render the IRE invalid). PA AFL-CIO’s attempt to 

inject uncertainty into an otherwise clear provision and established administrative 

process is not a reasonable reading of Section 306(a.3).

For the foregoing reasons, we agree with the Commonwealth that the 

Petition for Review is legally insufficient and does not state a claim that Section 

306(a.3) violates article II, section 1 of the Pennsylvania Constitution. 

Accordingly, we sustain the Commonwealth’s demurrer to Count I of the Petition 

for Review. 

We next consider the Commonwealth’s demurrer to Count II to determine 

whether PA AFL-CIO has stated a legally sufficient claim in Count II, which seeks 

to enjoin the use of Section 306(a.3). A preliminary injunction will issue where 

the petitioner establishes: (1) the injunctive relief “is necessary to prevent 

immediate and irreparable harm that cannot be adequately compensated by 

damages”; (2) greater injury will occur from refusing to grant the injunction than 
19

from granting it; (3) the injunction will restore the parties to the status quo as it 

existed before the alleged wrongful conduct; (4) the activity that is sought to be 

restrained is actionable, the petitioner’s right to relief is clear, and the wrong is 

manifest, or, in short, that the petitioner is likely to succeed on the merits; (5) the 

injunction “is reasonably suited to abate the offending activity”; and (6) the public 

interest will not be harmed by granting the injunction. Summit Towne Ctr., Inc. v. 

Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1001 (Pa. 2003). A preliminary 

injunction “is to be granted only when and if each [factor] has been fully and 

completely established.” Pa. AFL-CIO by George v. Commonwealth, 683 A.2d 

691, 694 (Pa. Cmwlth. 1996) (emphasis omitted). 

PA AFL-CIO asserts it has satisfied each of these factors and, therefore, the 

IRE process set forth in Section 306(a.3) must be enjoined. It additionally argues 

that it would be premature to consider denying preliminary injunctive relief at this 

stage of the proceedings. (PA AFL-CIO’s Suppl. Br. at 15 n.3.) However, having 

concluded that PA AFL-CIO has failed to state a claim that Section 306(a.3) 

violates article II, section 1 of the Pennsylvania Constitution in Count I, it 

necessarily follows that PA AFL-CIO cannot establish that its right to relief is 

clear, which is a required element for injunctive relief. Therefore, its request for 

injunctive relief also is legally insufficient. Thus, we sustain the Commonwealth’s 

demurrer to Count II of the Petition for Review. 

Having sustained the POs to Counts I and II, we dismiss the Petition for 

Review.5

 

5 House Leaders seek to intervene pursuant to Pennsylvania Rule of Civil Procedure 

2327(4) asserting that they have a legally enforceable interest in this action that may be affected 

by a determination on this Petition for Review. When “there is a discernible and palpable 

infringement on their authority as legislators,” “members of the General Assembly have [a] 

sufficient interest to participate in a legal action in their official capacity and based upon their 
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IV. Conclusion

Because the General Assembly did not delegate its legislative authority 

when it enacted Section 306(a.3), but adopted existing standards as its own in the 

exercise of its power to legislate, PA AFL-CIO has not stated a legally sufficient 

claim for declaratory or injunctive relief. Accordingly, the Commonwealth’s POs 

are sustained and the Petition for Review is dismissed. Having dismissed the 

 

authority” as legislators. (Application ¶ 9 (quoting Robinson Twp. v. Commonwealth, 84 A.3d 

1054, 1055 (Pa. 2014) (plurality)).) Central to the determination in this matter, House Leaders 

aver, is whether the General Assembly has impermissibly delegated its authority to the AMA 

when it adopted the Sixth Edition, second printing, of the Guides, which could have implication 

on their ability in the future to “enact a statute that incorporates by reference a particular iteration 

of a private organization’s published collection of standards.” (Id. ¶¶ 23-24.) PA AFL-CIO’s 

Petition for Review, they argue, is “a direct constitutional attack on [the] way that the General 

Assembly exercised its legislative authority.” (Id. ¶ 25.) In addition, House Leaders maintain 

that their interests are not being adequately represented by the current Respondents, as they are 

not members of the General Assembly and do not share House Leaders’ interest.

Both the Commonwealth and PA AFL-CIO, which adopts the Commonwealth’s brief in 

opposition as its own, oppose granting the Application on the basis that House Leaders lack the 

requisite standing to intervene. They assert there is no “special category of standing for 

legislators” and that House Leaders cannot participate in this litigation because there has been no 

“discernible and palpable infringement on their authority as legislators.” (The Commonwealth’s 

Br. in Opposition to Application at 4 (quoting, respectively, Fumo v. City of Philadelphia, 972 

A.2d 487, 501 (Pa. 2009); Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 600 

(Pa. 2005)).) The constitutional challenge here to Section 306(a.3), the Commonwealth and PA 

AFL-CIO assert, does not “affect [House Leaders’] rights to vote” or “diminish or deprive them 

of their power as legislators” and, therefore, there is no usurpation of House Leaders’ legislative 

authority that would provide them with standing. (Id. at 7-8.) The Commonwealth and PA 

AFL-CIO further argue that House Leaders’ claims based on defending the constitutionality of 

the challenged provision are likewise insufficient to establish standing. (Id. at 8-9 (citing 

Robinson Twp., 84 A.3d at 1055).) Finally, they maintain House Leaders cannot demonstrate 

standing through aggrievement because House Leaders are not being deprived of their legislative 

authority.

As House Leaders acknowledged during argument, we would not need to decide the 

Application if the Commonwealth’s POs are sustained and the Petition for Review is dismissed. 

Because that is the disposition, the Application is dismissed as moot.
21

Petition for Review based on the Commonwealth’s POs, the Application of House 

Leaders to intervene is dismissed as moot.

 

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania AFL-CIO, by its :

Trustees ad litem, Richard W. :

Bloomingdale and Frank Snyder, :

Petitioners :

 :

 :

v. : No. 62 M.D. 2019

 : 

Commonwealth of Pennsylvania; :

Governor Tom Wolf, in his official :

capacity; W. Gerard Oleksiak, :

Secretary of the Department of Labor :

and Industry, in his official capacity, :

Respondents :

O R D E R

NOW, October 11, 2019, the Preliminary Objections in the Nature of 

Demurrer filed by Respondents are SUSTAINED, and the Petition for Review is 

DISMISSED. The Application to Intervene pending before this Court in this 

matter is DISMISSED AS MOOT. 

_____________________________________

RENÉE COHN JUBELIRER, Judge