JUSTICE BAER DECIDED: JUNE 20, respectfully dissent from the majority's holding that Section 306(a.2) of Workers' Compensation Act, 77 P.S. 511.2, which directs physician evaluate claimant's degree impairment pursuant the most recent edition of the American Medical Association ("AMA") "Guides Evaluation Permanent Impairment," *2 constitutes an unlawful delegation of legislative power in violation of Article II, Section I of the Pennsylvania Constitution.' Unlike the majority, do interpret Section 306(a.2) 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 active in clinical practice. The statute directs these physicians to utilize the most recent edition of the AMA Guides As noted by the majority, Section 306(a.2), entitled "Medical examination; impairment rating," provides in relevant part:

(1) When an employe has received total disability compensation pursuant to clause (a) for period of one hundred four weeks, unless otherwise agreed to, the employe shall be required to submit to 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 this Commonwealth, who is certified an American Board of Medical Specialties approved board or its osteopathic equivalent who active clinical practice for least twenty hours per week, chosen agreement of the parties, or as designated the department, pursuant to the most recent edition of the American Medical Association "Guides the Evaluation Permanent Impairment." (2) If such determination results an impairment rating that meets threshold impairment rating equal or greater than fifty per centum impairment under the most recent edition the American Medical Association "Guides Evaluation Permanent Impairment," the employe shall be presumed be totally disabled and shall continue receive total disability compensation benefits under clause (a). If such determination results impairment rating less than fifty per centum impairment under the most recent edition American Medical Association "Guides Evaluation Permanent Impairment," employe shall then receive partial disability benefits under clause (b): Provided, however, That reduction shall made until sixty days' notice modification is given.

77 P.S. 511.2.

in connection with their initial impairment determination. There 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 physicians when evaluating whether classify a claimant as totally or partially disabled. Stated differently, requiring the use of the most recent AMA Guides is not delegating authority make law; it is simply declaring the applicable standard by which physicians should conduct impairment rating evaluations. Accordingly, would uphold the constitutionality Section 306(a.2) reverse the decision Commonwealth Court, which held to the contrary.

Constitutional challenges alleging that a statutory provision unlawfully delegates legislative power emanate from Article II, Section ^[1] Pennsylvania Constitution. PA. CONST. art. II, ^[1] (stating that "[t]he legislative power of this Commonwealth shall vested in General Assembly, which shall consist a Senate a House of Representatives"). Section ^[1] has been interpreted requiring the Legislature make the basic policy choices involved legislative power, W. Mifflin Area Sch. Dist. v. Zahorchak, A.3d 1042, 1045 n. 5 (Pa. 2010), so as to preserve the separation of powers. Lehman v. Pa. State Police, 839 A.2d 265, 274 (Pa. 2003). In addition making basic policy choices embodied law, the General Assembly must also supply adequate standards guide and restrain the exercise delegated administrative functions. Pennsylvanians Against Gambling Expansion Fund v. Commonwealth, 877 A.2d 383, 418 (2005).

Section 306(a.2) does violate these constitutional mandates. As observed by esteemed Judge Robert Simpson his dissent below, the Legislature made the policy decision the first instance, the degree impairment determination must be made independently selected (or agreed -upon), certified medical specialist, *4 engaged 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 current AMA Guides. Id. As Judge Simpson cogently noted, "[i]t is hard see what other basic policy choices remain to be made." Id.

As did Judge Simpson below, agree with sentiments set forth Supreme Court New Mexico Madrid v. St. Joseph Hospital, 928 P.2d 250, 256 (1996), which examined the same issue regarding whether a workers' compensation statute constitutes unlawful delegation legislative authority requiring the use of the most recent edition the AMA Guides evaluating impairment. Id. The court found unlawful delegation, recognizing that "many jurisdictions have articulated compelling rationales for allowing adoption of a private organization's standards into statutory scheme without finding a delegation legislative authority . . even when the . standards subject periodic revision by the private entity." Id.

The New Mexico Supreme Court explained that "[i]t impractical expect our Legislature establish standards for evaluating physical impairment workers' compensation claims." Id. 258-59. Noting a possible lack legislative resources adopt independent medical impairment standards, the court surmised that the legislature chose utilize objective standards established the AMA, which highly respected impartial entity that possesses the expertise for such task. Id. at 259. Judges Leadbetter Covey joined Judge Simpson's dissent. *5 The New Mexico High Court stated, "[p]rohibiting the Legislature from adopting the standards developed experts within rapidly changing medical specialty would obstruct the Workers' Compensation Administration's efforts to provide accurate evaluations impairment." Id. Recognizing that new scientific developments relevant to impairment evaluation demand modification, the court concluded that "[p]eriodic revisions standard will not transform otherwise constitutional and non- delegatory statutory provision into an unconstitutional delegation of legislative power." Id.

Consistent with this approach, it my view that thwarting the Pennsylvania Legislature's ability incorporate medical standards that periodically updated due to new scientific developments does safeguard any constitutionally protected interest but, rather, hinders the accuracy claimant impairment ratings workers' compensation cases. Additionally, I fear majority's decision will have far reaching consequences it would apply various other Pennsylvania statutes that rely on the most current standards definitions promulgated entities other than the legislature itself. See Opening Brief Appellee/Cross-Appellant Derry Area School District 37-40 (citing numerous statutes that reference current standards and definitions developed knowledgeable professional independent entities). Accordingly, would hold that General Assembly's common sense decision direct physicians utilize the most current medical knowledge when making impairment determinations constitutionally sustainable policy decision that should left undisturbed.