IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Roy Estel, Jr., :
Petitioner :
: No. 290 C.D. 2021
v. :
: Submitted: August 13, 2021
SSSI Inc. d/b/a Songer Steel :
(Workers’ Compensation Appeal :
Board), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: December 29, 2021
Roy Estel, Jr. (Claimant) petitions for review of the February 19, 2021
order of the Workers’ Compensation Appeal Board (Board), which affirmed the
decision of Workers’ Compensation Judge Pamela Briston (WCJ) to grant the
modification petition of SSSI, Inc. d/b/a Songer Steel (Employer). We affirm.
Background
Claimant sustained a work-related injury to his right shoulder on March
20, 2017, as a result of which he received total disability benefits under the
Pennsylvania Workers’ Compensation Act (Act or Workers’ Compensation Act).1
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.1, 2501-2710.
On June 20, 2017, the Supreme Court of Pennsylvania issued its decision in Protz v.
Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827
(Pa. 2017), holding that the Impairment Rating Evaluation (IRE) provisions of former
section 306(a.2) of the Act2 violated the non-delegation doctrine of the Pennsylvania
Constitution, and striking the entirety of former section 306(a.2) as unconstitutional.
In response to Protz, in 2018, the General Assembly enacted Act 111 and added
section 306(a.3) of the Act, 77 P.S. §511.3, which reestablished the IRE procedure in
a manner intended to cure the constitutional deficiency identified in Protz.
The former version of the statute provided that a physician conducting
an IRE was to use “the most recent edition” of the American Medical Association
(AMA) Guides to the Evaluation of Permanent Impairment (the Guides). Protz, 161
A.3d at 830. The Protz Court held that this amounted to an unconstitutional
delegation to the AMA of the General Assembly’s law-making power, inasmuch as
the AMA could revise the standards for determining impairment at any time, and that
the organization therefore had unfettered discretion to establish the criteria under
which a claimant would be found entitled to benefits under the IRE provisions of
former section 306(a.2). Id. at 835-38. By contrast, section 306(a.3)(1) now
specifies that IREs are to be conducted “pursuant to the American Medical
Association ‘Guides to the Evaluation of Permanent Impairment,’ 6th edition (second
printing April 2009)” (Sixth Edition of the Guides). 77 P.S. §511.3(1). Under the
current version of the Act, if an IRE yields an impairment rating that is greater than
or equal to 35%, the claimant is presumed to be totally disabled, and if the IRE results
2
Added by the Act of June 24, 1996, P.L. 350, formerly 77 P.S. §511.2, repealed by the Act
of October 24, 2018, P.L. 714, No. 111 (Act 111).
2
in an impairment rating of less than 35%, then the claimant is entitled to partial
disability benefits.3 Section 306(a.3)(2) of the Act, 77 P.S. §511.3(2).
On November 7, 2019, Claimant underwent an IRE pursuant to section
306(a.3), which was conducted by Jeffrey M. Moldovan, D.O. Dr. Moldovan
determined that Claimant had an impairment rating of 10%. As this was under the
35% threshold specified by section 306(a.3)(2) of the Act, on January 14, 2020,
Employer filed a modification petition seeking to change Claimant’s disability status
from total to partial.
By a decision and order circulated on June 24, 2020, the WCJ granted
Employer’s modification petition. The WCJ accepted Dr. Moldovan’s
uncontroverted opinion concerning Claimant’s impairment rating, and found that
Employer had thus met its burden to establish that Claimant’s status should be
changed from total to partial disability. Accordingly, the WCJ modified Claimant’s
status effective November 7, 2019. The WCJ noted that Claimant solely argued that
it was unconstitutional to apply Act 111, but the WCJ was without jurisdiction to rule
upon the constitutional validity of the statute.
Claimant then appealed to the Board. Claimant contended that, under
Protz, Act 111 is unconstitutional for the same reasons that former section 306(a.2)
was unconstitutional, inasmuch as the statute continues to delegate legislative
authority to the AMA. The Board noted that this Court rejected an identical
constitutional argument in Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306
(Pa. Cmwlth. 2019). However, the Board noted that, like the WCJ, it lacks
3
Under section 306(b)(1) of the Act, a change from total to partial disability status does not
alter the amount of compensation paid, but limits the number of weeks a claimant can receive
disability compensation to 500 weeks. 77 P.S. §512(1).
3
jurisdiction to declare a statute unconstitutional; accordingly, the Board presumed
that Act 111 is constitutional, and deemed Claimant’s constitutional challenge
preserved for judicial review. Finally, the Board rejected Claimant’s contention that
Act 111 does not apply to injuries such as his, which occurred prior to its effective
date. Accordingly, the Board affirmed the WCJ’s decision and order.
Claimant sought review in this Court.4 Claimant’s sole argument is the
constitutional challenge that he raised below—that Act 111, and specifically section
306(a.3) of the Act, failed to remedy the defect in the prior statutory provision found
unconstitutional in Protz. Because the Act specifies that the IRE process is to be
conducted pursuant to the Sixth Edition of the Guides, Claimant contends that section
306(a.3) continues to reflect an unconstitutional delegation of legislative authority to
the AMA. (Claimant’s Br. at 11-13.) Claimant recognizes that we rejected this
argument in Pennsylvania AFL-CIO, but he argues that our decision was incorrect
and, thus, should not control this matter.
Claimant’s position is without merit. As Claimant acknowledges, his
argument is squarely foreclosed by precedent. Shortly after the enactment of Act
111, the Pennsylvania AFL-CIO brought an action against the Commonwealth,
seeking declaratory and injunctive relief on the theory that section 306(a.3)’s
adoption of the Sixth Edition of the Guides failed to remedy the constitutional defect
identified in Protz. Pennsylvania AFL-CIO, 219 A.3d at 312-13. After a thorough
analysis of the statute and the rationale of Protz, this Court dismissed the action for
4
Our standard of review is limited to determining whether the WCJ’s findings of fact were
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. Lehigh Specialty Melting, Inc. v. Workers’ Compensation
Appeal Board (Bosco), 260 A.3d 1053, 1058 n.3 (Pa. Cmwlth. 2021) (citing Phoenixville Hospital
v. Workers’ Compensation Appeal Board (Shoap), 81 A.3d 830, 838 (Pa. 2013)).
4
failure to state a claim. The defect in the prior statutory scheme was that, by allowing
the standards for IREs to be conducted pursuant to the “most recent edition” of the
AMA Guides, the Act “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 314 (citing Protz, 161 A.3d at 835-
36) (emphasis in original). This, in turn, “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. (quoting
Protz, 161 A.3d at 835-36) (emphasis in original).
However, this Court emphasized, the Protz Court made clear 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.” Id. at 315 (quoting Protz, 161 A.3d at 838-39) (emphasis omitted). This,
we reasoned, was precisely what the General Assembly had done through Act 111.
Id. at 316. The legislature “adopted the Sixth Edition, second printing” of the Guides,
which was in existence when Act 111 was enacted, “as its own.” Id. at 316 (quoting
Protz, 161 A.3d at 838). This remedied the constitutional defect because the
standards for IRE determinations were therefore not adopted “sight unseen,” and they
could not be altered through the AMA’s future actions in revising the Guides, but,
rather, only by future actions of the General Assembly. Accordingly, we rejected the
claim that section 306(a.3) of the Act is unconstitutional under the non-delegation
doctrine.
Here, Claimant’s sole argument amounts to a reiteration of the claim
squarely rejected in Pennsylvania AFL-CIO. Contrary to Claimant’s contention,
5
Pennsylvania AFL-CIO was not wrongly decided; rather, the decision reflects a
thorough statutory and constitutional analysis, and it correctly determined that the
challenged statutory provision adequately remedied the constitutional defect of its
prior version. We accordingly reject Claimant’s present challenge.
The order of the Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Roy Estel, Jr., :
Petitioner :
: No. 290 C.D. 2021
v. :
:
SSSI Inc. d/b/a Songer Steel :
(Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
AND NOW, this 29th day of December, 2021, the February 19, 2021
order of the Workers’ Compensation Appeal Board is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge