Mаry Ann PROTZ, Appellant v. WORKERS’ COMPENSATION APPEAL BOARD (DERRY AREA SCHOOL DISTRICT), Appellees Mary Ann Protz v. Workers’ Compensation Appeal Board (Derry Area School District) Appeal of: Derry Area School District
No. 6 WAP 2016 No. 7 WAP 2016
Supreme Court of Pennsylvania
June 20, 2017
161 A.3d 827
ARGUED: November 1, 2016
Joshua D. Shapiro, Esq., Attorney General, Participant.
Daniel Joel Siegel, Esq., Law Offices of Daniel J. Siegel, L.L.C., for Pennsylvania Association Justice, Appellant Amicus Curiae.
Thomas C. Baumann, Esq., Sandra Weigel Kokal, Esq., Abes Baumann, P.C., for Protz, Mary Ann, Designated Appellant.
Michael D. Sherman, Esq., Chartwell Law Offices, LLP, for Pennsylvania Self-Insurers’ Association, Appellee Amicus Curiae, and Greater Philadelphia Executive Claims Council, Appellee Amicus Curiae.
Amber Marie Kenger, Esq., Pennsylvania Department of Labor & Industry, Workers’ Compensation Appeal Board, for Compensation Appeal Board, Designated Appellee.
Karl Stewart Myers, Esq., for The Insurance Federation of Pennsylvania, Amicus Curiae, and American Insurance Association, Amicus Curiae.
David Harold Dille, Esq., Ira L. Podheiser, Esq., Matthew Austin Meyers, Esq., Burns White, LLC, for Derry Area School District, Designated Appellee.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
JUSTICE WECHT
Section 306(a.2) of the Workers’ Compensation Act allows employers to demand that a claimant undergo an impairment-rating evaluation (IRE), during which a physician must determine the “degree of impairment” that is due to the claimant‘s compensable injury. See
In 2007, Mary Ann Protz sustained a work-related knee injury. Shortly thereafter, her employer, Derry Area School District (Derry), voluntarily began paying temporary total disability benefits. In October 2011, Protz underwent an IRE at Derry‘s request. The IRE physician evaluated Protz and assigned to her a 10% impairment rating based upоn the Sixth Edition of the American Medical Association
Protz appealed to the Workers’ Compensation Appeal Board, arguing that the General Assembly unconstitutionally delegated to the AMA the authority to establish criteria for evaluating permanent impairment. See
(“[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.“). The Board rejected Protz‘s constitutional argument and affirmed the WCJ‘s decision.
Protz appealed to the Commonwealth Court, where she again argued that Section 306(a.2) of the Act violates Article II, Section 1 of the Pennsylvania Constitution. The Commonwealth Court, sitting en banc, reversed the Board‘s decision. The en banc panel agreed with Protz that Section 306(a.2)‘s requirement that physicians use “the most recent edition” of the Guides violates Article II, Section 1. Writing for the four-judge majority, Senior Judge Dan Pellegrini recited the basic principle that the General Assembly alone has the power to make laws, and it cannot constitutionally delegate that power to any other branch of government or to any other body. Protz v. W.C.A.B. (Derry Area Sch. Dist.), 124 A.3d 406, 412 (Pa. Cmwlth. 2015).
The court acknowledged that, despite this seemingly broad prohibition, “the General Assembly may delegate authority and discretion in connectiоn with the execution and administration of a law to an independent agency or an executive branch agency where the General Assembly first establishes primary standards and imposes upon others the duty to carry out the declared legislative policy in accordance with the general provisions of the enabling legislation.” Id. at 413 (citing Blackwell v. Commonwealth, State Ethics Commission, 523 Pa. 347, 567 A.2d 630, 637 (1989)). The court explained that, when the legislature chooses to so delegate, two critical limitations apply: first, “the basic policy choices must be made by the [l]egislature;” and second, “the legislation must contain adequate standards which will guide and restrain the exercise of the delegated administrative functions.” Id. (citing Gilligan v. Pa. Horse Racing Commission, 492 Pa. 92, 422 A.2d 487, 489 (1980)).
Applying this test, the Commonwealth Court concluded that “the Act is wholly
The court went on to explain that, even if the General Assembly had included “adequate standards” to “guide and restrain” the AMA‘s exercise of delegated authority, Section 306(a.2) still would be unconstitutional because the AMA is a private organization. Along these lines, the court noted that:
Unlike governmental agencies which are supposed to act disinterestedly and only for the public good, that presumption cannot be made with regard to private entities. There is no accountability to the public, either directly through the rulemaking process providing for public input and comment or indirectly through the appointment and confirmation power and the power of the purse. More simply, the keystone behind the prohibition against unlawful delegation is that the General Assembly, not private bodies, enacts laws which the government agencies implement in accordance with the standard given to them in the enactment.
Id.
Rather than striking all of Section 306(a.2), or undertaking a severability analysis, the Commonwealth Court declared the law unconstitutional only “insofar as it proactively approved versions of the AMA Guides beyond the Fourth Edition without review.” Id. Consistent with that narrow remedy, the court remanded the instant matter to the WCJ with instructions to apply the Fourth Edition of the Guides, the version in existence when the General Assembly enacted Section 306(a.2) in 1996.
Judges Anne Covey and Robert Simpson each authored dissenting opinions. In Judge Simpson‘s view, Section 306(a.2) withstands constitutional scrutiny in light of the fact that “the General Assembly delegated initial impairment ratings to an independent, Pennsylvania-licensed, board-certified, clinically-active physician,” not to the AMA itself. Id. at 417 (Simpson, J., dissenting). Judge Simpson also maintained that, because it would be impractical to expect the legislature to establish and constantly revise a set of standards for evaluating physical impairment, “the General Assembly may rely on the medical expertise of the AMA, a well-recognized independent authority, in expressing current, best-practice medical knowledge.” Id. at 420. Finally, Judge Simpson observed that “other states have adopted and judicially upheld similar workers’ compensation provisions requiring the use of the most recent edition of the AMA Guides in evaluating impairment in workers’ compensation cases.” Id. at 419 (citing Madrid v. St. Joseph Hosp., 122 N.M. 524, 928 P.2d 250 (1996) (rejecting a non-delegation challenge involving the New Mexico legislature‘s adoption of “the most recent edition” of the Guides)). Judge Covey joined Judge Simpson‘s dissent and authored a separate dissent addressing the mаjority‘s alternative holding that all delegations to private entities are unconstitutional.
Both parties filed petitions for allowance of appeal with this Court, which we granted. Derry takes issue with the Commonwealth Court‘s conclusion that the General Assembly‘s prospective adoption of “the most recent edition” of the Guides violates
We begin with the non-delegation issue, as to which our standard of review is de novo and our scope of review plenary. City of Phila. v. Fraternal Order of Police Lodge No. 5 (Breary), 604 Pa. 267, 985 A.2d 1259, 1269 n.13 (2009). Because the parties’ arguments largely reflect the views expressed in the majority and dissenting opinions below, we need not recite them at length. In short, Derry argues that the General Assembly is free to adopt current and future standards that are published by “a well-recognized independent authority.” Brief for Derry at 28 (quoting Protz, 124 A.3d at 420 (Simpson, J., dissenting)). Protz, on the other hand, maintains that Section 306(a.2) violates the non-delegation doctrine embodied in our Constitution because it gives the AMA unfettered discretion over Pennsylvania‘s impairment-rating methodology. See Brief for Protz at 16.
Article II, Section 1 of the Pennsylvania Constitution states 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.”
At the heart of the non-delegation doctrine, which we have described as a “natural corollary” to the text of Article II, Section 1, is the tenet that the General Assembly cannot delegate “to any other branch of government or to any other body or authority” the power to make law. Blackwell, 567 A.2d at 636; State Bd. of Chiropractic Exam‘rs v. Life Fellowship of Pa., 441 Pa. 293, 272 A.2d 478, 480 (1971). Or, as John Locke put it, legislative power consists of the power “to make laws, and not to make legislators.” JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 87 (R. Cox ed.1982). Indeed, the rule is essential to the American tripartite system of representative government. The framers of the Constitution believed that the integrity of the legislative function was vital to the preservation of liberty. See Dep‘t of Trаnsp. v. Ass‘n of Am. Railroads, 575 U.S. 43, 135 S.Ct. 1225, 1237, 191 L.Ed.2d 153 (2015) (Alito, J., concurring) (“The principle that Congress cannot delegate away its vested power exists to protect liberty.“); see also THE FEDERALIST NO. 47, at 301 (J. Cooke ed. 1961) (J. Madison) (“The accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny.“).
Although our Constitution generally forbids the delegation of “legislative power,” it nonetheless permits the General Assembly, in some instances, to assign the authority and discretion to execute or administer a law. Blackwell, 567 A.2d at 637. When the General Assembly does so, the
In many non-delegation cases, this Court also has stressed the importance of procedural mechanisms that serve to limit or prevent the arbitrary and capricious exercise of delegated power. Tosto, 331 A.2d at 203; see W. Phila. Achievement Charter Elementary Sch. v. Sch. Dist. of Phila., 635 Pa. 127, 132 A.3d 957, 966 (2016). In Tosto, for example, the statute at issue required that the administrative agency establish neutral operating procedures, develop standardized documents, and give the public notice of proposed agency rules and regulations before promulgating them. In upholding the law, we described these elements as “important safeguard[s] against the arbitrariness of ad hoc decision making.” Tosto, 331 A.2d at 204.
Similarly, in William Penn, we upheld a tax enabling statute that delegated to the judiciary the power to assess whether certain local taxes were “excessive or unreasonable.” Wm. Penn Parking Garage, Inc., 346 A.2d at 291. There, a plurality of this Court found it significant that the General Assembly had assigned this task to the courts, rather than to an administrative body, because the very structure of the judiciary serves to protect against the arbitrariness of ad hoc decision making. In this regard, we emphasized that a trial court operating under the statute “must explain the grounds of its decision in a reasoned opinion which will serve as a precedent to guide decisions in future cases,” and that “trial courts are subject to careful review by appellate courts to [e]nsure the general consistency of their actions with one another and to confine them within their proper sphere.” Id. at 291-92.
This Court‘s most recent non-delegation decision involved a provision in the Public School Code, see
By any objective measure, the authority delegated to the AMA in Section 306(a.2) of the Workers’ Compensation Act is even more broad and unbridled than that of the School Reform Commission in West Philadelphia Achievement Charter Elementary School. 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.3 Without any parameters cabining its authority, the AMA would be free tо: (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 impartment 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.4
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 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
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.” Tosto, 331 A.2d at 203. 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.5 Further, the AMA physicians who
author the Guides are, of course, not public employees who may be subject to discipline or removal.
Echoing Judge Simpson‘s dissent, Derry argues that the General Assembly restrained the AMA‘s authority by mandating that that all IREs be performed by a Pennsylvania-licensed, clinically active physician. See Brief for Derry at 27. We fail to sеe how this does anything to prevent the AMA from acting arbitrarily. Again, Section 306(a.2) provides that “[t]he degree of impairment shall be determined based upon an evaluation by a physician ... pursuant to the most recent edition of the [AMA] ‘Guides to the Evaluation of Permanent Impairment.‘”
We also find unavailing Derry‘s suggestion that the General Assembly‘s prospective adoption of future editions of the Guides constitutes a “policy decision” to use the “the most up-to-date medical knowledge when making impairment assessments.” Brief for Derry at 29, 33 (arguing that that the General Assembly made the “policy decision” to “apply the most up-to-date standards reflecting the most current medical thinking“). As an initial matter, we question Derry‘s portrayal of the Guides as merely a collection of medical knowledge. See Ellen Smith Pryor, Flawed Promises: A Critical Evaluation of the American Medical Association‘s Guides to the Evaluation of Permanent Impairment, 103 HARV. L. REV. 964 (1990) (stating that the Guides, “like any impairment rating scheme, [rest] in large part on important and difficult normative judgments“). More importantly, Derry‘s contention distills to a tautology: that the non-delegation doctrine, which exists to prevent the General Assembly from delegating its lawmaking authority, is not violated whenever the General Assembly “decides” to delegate its lawmaking authority. Because this reasoning would render
This case involves one additional wrinkle not present in West Philadelphia Achievement Charter Elementary School or in Tosto. Here, unlike in those cases, the General Assembly delegated authority to a private entity, not to a government agency or body. Conceptually, this fact poses unique concerns that are absent when the General Assembly, for instance, vests an executive-branch agency with the discretion to administer the law. One such concern is that private entities are isolated from the political process, and, as a result, are shielded from political accountability.6 Because оf this, it is perhaps unsurprising that our precedents have long expressed hostility toward delegations of governmental authority to private actors. Hetherington v. McHale, 458 Pa. 479, 329 A.2d 250, 254 (1974) (holding that the Constitution “prohibits delegation to private groups of the power to make governmental appoint-
ments“); Olin Mathieson Chem. Corp. v. White Cross Stores, Inc., No. 6, 414 Pa. 95, 199 A.2d 266, 267-68 (1964) (holding that the General Assembly may delegate regulatory power to “responsible governmental agencies,” but not to private persons). Venerable opinions of the Supreme Court of the United States have done so as well. See e.g., Carter v. Carter Coal Co., 298 U.S. 238, 311, 56 S.Ct. 855, 80 L.Ed. 1160 (1936) (“This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business.“); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 553, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) (remarking that the National Industrial Recovery Act, which conferred upon private parties the authority to promulgate rules of “fair competition,” represented “delegation running riot“) (Cardozo, J., concurring).
That said, our precedents to date have not unequivocally supported the Commonwealth Court‘s view that the General Assembly cannot, under any set of circumstances, delegate authority to a private person or entity. See Protz, 124 A.3d at 416. Notably, this Court occasionally has suggested in non-delegation cases that the traditional constitutional requirements (i.e., “policy choices” and “adequate standards“)
Although we highlight this tension in our jurisprudence, we need not resolve it today. As we have explained, Section 306(a.2) could not withstand constitutional scrutiny even if the AMA were a governmental body. See supra, at 657-60, 161 A.3d at 834-36 (comparing the facts of this case to those in West Philadelphia Achievement Charter Elementary School, 132 A.3d 957). We merely caution that our holding today should not be read as an endorsement or rejectiоn of the Commonwealth Court‘s view that the delegation of authority to a private actor is per se unconstitutional. Nor do we foreclose the distinct possibility that a more exacting form of judicial scrutiny is warranted when the General Assembly vests private actors with regulatory or administrative powers.
Having determined that the General Assembly unconstitutionally delegated lawmaking authority to the AMA, we now must consider whether the Commonwealth Court erred in remanding this case to the WCJ with instructions to apply the Fourth Edition of the Guides. Although the Commonwealth Court‘s rationale in this regard is not entirely clear, it appears that the court‘s holding was based upon the fact that the General Assembly, when it enacted Section 306(a.2) in 1996, could have incorporated by reference the Fourth Edition of the Guides.
According to Protz, the Commonwealth Court should have struck down Section 306(a.2) in its entirety. Protz notes that “the plain language of Section 306(a.2) contains no mention оf the Fourth Edition of the AMA Guides; rather [it] simply mandates usage of the ‘most recent edition.‘” Brief for Protz at 18. Thus, Protz concludes, “the Commonwealth Court essentially redrafted Section 306(a.2) in a manner that would, in the court‘s view, pass constitutional muster.” Id. By contrast, Derry argues that the Commonwealth Court did not err in remanding to the WCJ with instructions to apply the Fourth Edition of the Guides. Derry underscores that the Commonwealth Court “believed that the primary flaw in the statute was not that it invoked [the Guides], but that there was no policy review or guidance for determining whether the most ‘recent’ edition should be applied.” Brief for Derry at 44. Thus, Derry believes that the Fourth Edition of the Guides should govern IREs moving forward.
At the outset, 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
In matters of statutory interpretation, the General Assembly has instructed us to assume that it “does not intend to violate the Constitution of the United States or of this Commonwealth.”
As a reminder, the relevant portion of Section 306(a.2) provides as follows:
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.”
Doubtless, most would understand this language to mean that the IRE physician must use the edition of the Guides that is the most recent at the time of the examination. See Stanish v. W.C.A.B. (James J. Anderson Const. Co.), 11 A.3d 569, 576 (Pa. Cmwlth. 2010) (holding that the “most recent edition” of the Guides is the most recent version in force at the time of the IRE). But, if the above language reasonably can be understood to mean that physicians should use the edition of the Guides that was the most recent edition when the General Assembly enacted Section 306(a.2) (i.e., the Fourth Edition), we should adopt that construction instead. Bricklayers of W. Pa., supra.
Ultimately, however, we cannot accept that such a reading is a reasonable one. It beggars belief that the General Assembly would have used the words “most recеnt edition” when it really meant “Fourth Edition.” Even more telling is that the General Assembly, in other sections of the Workers’ Compensation Act, explicitly stated that the Fourth Edition of the Guides should govern. See
Having concluded that the requirement that IRE physicians use the most recent version of the Guides is unconstitutional,
Consistent with our holding, we must, at minimum, strike from Section 306(a.2) the unconstitutional “most recent edition” requirement. As demonstrated below, such references are pervasive.
(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 expirаtion 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,”thе 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 impairmentunder the mostrecent 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 of modification is given.* * * *
(4) An employe may appeal the change to partial disability at any time during the five hundred-week period of partial disability; Provided, That there is a determination that the employe meets the 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.”(5) Total disability shall continue until it is adjudicated or agreed under clause (b) that total disability has ceased or the employe‘s condition improves to an impairment rating that is less than fifty per centum of the degree of impairment
defined under the most recent edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment.”* * * *
(7) In no event shall the total number of weeks of partial disability exceed five hundred weeks for any injury or recurrence thereof, regardless of the changes in status in disability that may occur. In no event shall the total number of weeks
of total disability exceed one hundred four weeks for any employe who does not meet 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”for any injury or recurrence thereof.
Although the prevalence of the offending language, of coursе, does not by itself preclude severance, excising only this language would render the remainder of Section 306(a.2) incomprehensible. As the above provisions make clear, the Guides are what provide critical context to the statute‘s otherwise hollow phrases, such as “the degree of impairment.” Id. Without the aid of the Guides (or some other similar methodology), what could it possibly mean, for example, to say that a person has “a threshold impairment rating that is equal to or greater than fifty per centum impairment“? Id.
We view Section 306(a.2) as a paradigmatic example of a law containing valid provisions that are inseparable from void provisions. Consequently, we must strike Section 306(a.2), in its entirety, from the Act. See
The Pennsylvania Constitution prevents the General Assembly from passing off to another branch or body de facto control over matters of policy. As we have explained, this is exactly what the General Assembly did in Section 306(a.2). Because we must enforce Article II, Section 1 without consideration of the exigencies that arise or “how trying our economic or social conditions become,” we affirm the Commonwealth Court‘s holding that Section 306(a.2) violates the non-delegation doctrine. Holgate Bros. Co. v. Bashore, 331 Pa. 255, 200 A. 672, 675 (1938). Unlike the Commonwealth Court, however, we hold that Section 306(a.2) is unconstitutional in its entirety.
Order affirmed in part and reversed in part.
Justices Todd, Donohue, Dougherty and Mundy join the opinion.
Chief Justice Saylor files a concurring opinion.
Justice Baer files a dissenting opinion.
CHIEF JUSTICE SAYLOR, Concurring
I support the core legal analysis contained in the majority opinion. At least in the absence of some sort of ongoing legislative or administrative review or oversight, I agree that prospective medical texts cannot be incorporated into a scheme affecting citizens’ substantial rights. My differences with the majority opinion are more a matter of approach than substance, as, for example, I find it unnecessary to even consider that the American Medical Association might concoct anything, see Majority Opinion, at 658, 161 A.3d at 835, or that the General Assembly may have acted on an avoidance rationale, see id. at 661 n.6, 161 A.3d at 837 n.6.
JUSTICE BAER, Dissenting
I respectfully dissent from the majority‘s holding that Section 306(a.2) of the Workers’ Compensation Act,
ty, I do not interpret Section 306(a.2) as delegating legislative authority to the AMA. Rather, the challenged statutory provision delegates preliminary determinations of claimant impairment ratings to board-certified physicians licensed in the Commonwealth who are active in clinical practice. The statute directs these physicians to utilize the most recent edition of the AMA Guides in connection with their initial impairment determination. There is no constitutional infirmity in this approach as it merely evinces the General Assembly‘s policy determination to adopt the most up-to-date medical advances as the methodology to be utilized by physicians when evaluating whether to classify a claimant as totally or partially disabled. Stated differently, requiring the use of the most recent AMA Guides is not delegating the authority to make law; it is simply declaring the applicable standard by which physicians should conduct impairment rаting evaluations. Accordingly, I would uphold the constitutionality of Section 306(a.2) and reverse the decision of the Commonwealth Court, which held to the contrary.
Constitutional challenges alleging that a statutory provision unlawfully delegates legislative power emanate from Article II, Section 1 of the Pennsylvania Constitution.
Expansion Fund v. Commonwealth, 583 Pa. 275, 877 A.2d 383, 418 (2005).
Section 306(a.2) does not violate these constitutionаl mandates. As observed by the esteemed Judge Robert Simpson in his dissent below, the Legislature made the policy decision that in the first instance, the degree of impairment determination must be made by an independently selected (or agreed-upon), certified medical specialist, engaged 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.), 124 A.3d 406, 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 basic policy choices remain to be made.” Id.
As did Judge Simpson below, I agree with the sentiments set forth by the Suрreme Court of New Mexico in Madrid v. St. Joseph Hospital, 122 N.M. 524, 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 scheme without finding a delegation of legislative authority ... even when the standards are subject to periodic revision by the 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 legislature chose to utilize objеctive standards established by the AMA, which is a highly respected and impartial entity that possesses the expertise for such a task. Id. at 259. The 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 sаfeguard 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 rely on the most current standards and definitions promulgated by entities other than the legislature itself. See Opening Brief of Appellee/Cross-Appellant Derry Area School District at 37-40 (citing
Notes
(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 fоr 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 disability
The combination of inadequate validation research and ambiguity regarding the expert panels makes it difficult for us or any other observers to determine which elements of the AMA system are well substantiated, and which ones need significant revision. James P. Robinson, Dennis C. Turk & John D. Loeser, Pain, Impairment, and Disability in the AMA Guides, 32 J. L. MED. & ETHICS 315-16 (2004) (footnote omitted).The paucity of research on the AMA system is striking, given the fact that evaluations based on it determine the allocation of billions of dollars in medical and wage replacement payments. In the absence of scientific data, the AMA system relies almost exclusively on the opinions of panels of medical consultants. Unfortunately, no details have been published about how the expert panels were selected or the processes they followed tо reach decisions about impairment. Moreover, since several different groups of experts contributed to the AMA Guides[,] there are significant inconsistencies throughout the text.
Mistretta v. United States, 488 U.S. 361, 422, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (Scalia, J., dissenting). Although we do not know for certain why the General Assembly delegated to the AMA the task of creating and revising impairment-rating standards, it is not difficult to imagine that it simply viewed the never-ending task of adopting new impairment-rating standards as the type of “no-win” political issue (in the nonpartisan sense) that Justice Scalia described. See DAVID B. TORREY & ANDREW E. GREENBERG, WEST‘S PA. PRAC., WORKERS’ COMPENSATION § 6:51.70 (suggesting that the General Assembly sought to avoid “the thorny political issue of partial disability determination every time the AMA issued a new guidebook“).If rulemaking can be entirely unrelated to the exercise of judicial or executive powers, I foresee all manner of “expert” bodies, insulated from the political process, to whiсh Congress will delegate various portions of its lawmaking responsibility. How tempting to create an expert Medical Commission (mostly M.D.‘s, with perhaps a few Ph.D.‘s in moral philosophy) to dispose of such thorny, “no-win” political issues as the withholding of life-support systems in federally funded hospitals, or the use of fetal tissue for research. This is an undemocratic precedent that we set—not because of the scope of the delegated power, but because its recipient is not one of the three Branches of Government.