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 AFL-
CIO, 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)
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)3 filed 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 AFL-
CIO’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.
2
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
3
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).
4
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
5
“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.
6
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 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 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.
....
7
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.)
8
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 AFL-
CIO 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.
9
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] rule-
making 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,
10
of the AMA’s Guides” in Section 306(a.3). (Id. ¶ 24 (emphasis added).) PA AFL-
CIO 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 well-
pleaded 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
11
“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.
12
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
13
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 non-
delegation, 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
14
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
15
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
16
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
17
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
18
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.
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Petition for Review based on the Commonwealth’s POs, the Application of House
Leaders to intervene is dismissed as moot.
_____________________________________
RENÉE COHN JUBELIRER, Judge
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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 :
ORDER
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