A section of the Workers’ Compensation Act requiring impairment ratings to be determined under current American Medical Association (AMA) guidelines is an unconstitutional delegation of legislative authority, a divided en banc Pennsylvania Commonwealth Court panel held in Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), __ A.3d __ (No. 1024 CD 2014, filed Sept. 18, 2015). Employer in this case filed a modification petition to convert claimant’s total disability benefits to partial disability based upon an impairment rating evaluation (IRE) of 10%. Following a hearing, the workers’ compensation judge (WCJ) determined that claimant’s impairment rating was less than 50% under the Sixth Edition of the AMA’s Guides to the Evaluation of Permanent Impairment and granted employer’s petition. Claimant appealed to the WCAB, asserting that Section 306(a.2) of the Act, 77 P.S. §511.2, which mandates that an IRE be determined under “the most recent edition” of the AMA Guides, constituted an unconstitutional delegation of legislative authority. The Board affirmed the WCJ’s decision, holding that the Commonwealth Court had previously upheld the constitutionality of Section 306(a.2).
On review, the Commonwealth Court reversed and held that Section 306(a.2) is unconstitutional. Writing for the 4-3 majority, President Judge Pellegrini first rejected the Board’s conclusion that the constitutional question had already been decided. The Court discussed the seminal cases on delegation of legislative authority, which is permissible so long as the legislature makes the basic policy choices and provides adequate standards for exercising the delegated administrative functions. The Court held that Section 306(a.2) is “wholly devoid of any articulations of public policy” governing the AMA’s methodology of grading impairments, and lacks “adequate standards to guide and restrain the AMA’s exercise of this delegated determination.” The Court also observed that Section 306(a.2) lacks a mechanism for governmental review of the AMA Guides, which have changed twice since the Fourth Edition in effect when Section 306(a.2) was adopted. Finally, the Court concluded that, even if the General Assembly had provided adequate standards, Section 306(a.2) would still be unconstitutional because the delegation was to a private party, i.e., the AMA.
Judge Simpson, in a dissenting opinion joined by Judges Leadbetter and Covey, opined that the majority “missed the mark” because the General Assembly did make basic policy decisions and provide safeguards by, inter alia, “delegating initial determinations of impairment ratings to impartial, Pennsylvania-licensed, board-certified, clinically active physicians,” not to the AMA. Furthermore, Judge Simpson observed, in a case such as this where the employer files a modification petition, the impairment rating is just one item of evidence in an adjudicative process resolved by an impartial WCJ. In a separate dissenting opinion, Judge Covey disagreed with the majority’s conclusion that Section 306(a.2) is unconstitutional as a delegation of legislative authority to a private entity. That conclusion, in Judge Covey’s view, is contrary to established precedent rejecting the notion that involvement of a private party in the General Assembly’s rule-making is always unconstitutional.