Protz v. Workers' Compensation Appeal Board

124 A.3d 406, 2015 Pa. Commw. LEXIS 404

• Court: Commonwealth Court of Pennsylvania
• Decided: September 18, 2015
• Status: Published

Opinions

OPINION BY

President Judge PELLEGRINI.

Mary Ann Protz (Claimant) petitions for review of the order of the Workers’ Compensation Appeal Board (Board) affirming the decision of the Workers’ Compensation Judge (WCJ) which granted Derry Area School District’s (Employer) petition to modify Claimant’s benefits (modification petition) from total to partial disability under Section 306(a.2) of the Workers’ Compensation Act (Act).¹ Because we find Section 306(a.2) of the Act unconstitutional pursuant to Article II, Section 1 of the Pennsylvania Constitution, we vacate and remand for further proceedings.

I.

The following facts are not in dispute. In April 2007, Claimant sustained a work injury to her right knee when she fell while working for Employer, and Employer issued a notice of temporary compensation payable. When Claimant returned to work in August 2007, her benefits were suspended pursuant to Employer’s notice of suspension. In February 2008, Claimant’s work injury recurred, and her benefits were reinstated as per a supplemental agreement.

Subsequently, Employer filed a request for designation of a physician to perform an impairment rating evaluation (IRE), following which Jeffrey M. Moldovan, D.O. evaluated Claimant in October 2011 and provided a ten-percent impairment rating under the Sixth Edition of the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment (iGuides ).² In April 2012, Employer filed a modification petition, seeking to convert Claimant’s total disability benefits to partial disability benefits thereby reducing the amount of compensation that can be paid to 500 weeks. See Section 306(a.2)(7) of the Act, 77 P.S. § 511.2(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....”).

A claimant is partially disabled if he or she has a total impairment rating of less than fifty percent. See Section 306(a.2)(2) of the Act, 77 P.S. § 511.2(2). The impairment rating is determined pursuant to Section 306(a.2) of the Act, providing that it shall be determined under “the most recent edition of the American Medical Association ‘Guides to the Evaluation of Permanent Impairment,’ ” which provide a percent of impairment for each particular injury.³ When the Act was enacted, the Fourth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (Guides) was in effect but at the time of Claimant’s examination, the most current version (the Sixth Edition) was being used. Each edition can change the impairment rating for the same injury.

Following a hearing,⁴ the WCJ determined that as of January 16, 2012, Claimant’s impairment rating was less than fifty percent under the Sixth Edition of the Guides. Accordingly, the WCJ granted Employer’s modification petition, finding that Claimant was entitled only to partial disability benefits.⁵

II.

Claimant appealed to the Board, asserting that Section 306(a.2) of the Act, 77 P.S. § 511.2, constitutes an “unconstitutional delegation of authority by the state legislature.” (Claimant’s Appeal from WCJ’s Findings of Fact and Conclusions of Law, at 1.) The Board affirmed the WCJ’s decision, finding that:

The constitutionality of Section 306(a.2), 77 P.S. § 511.2, was addressed by the Commonwealth Court in Johnson v. [Workers’ Compensation Appeal Board] (Sealy Components Group), 982 A.2d 1253 (Pa.Cmwlth.2009)[, appeal. denied, 606 Pa. 674, 996 A.2d 493 (2010) ], where it found a claimant’s constitutional rights to due process were not violated. The Commonwealth Court further upheld Section 306(a.2) where it required the use of the [Sjixth [Ejdition of the Guides despite a regulation allowing for a grace period. Stanish v. [Workers’ Compensation Appeal Board] (James J. Anderson Construction] Co.), 11 A.3d 569 (Pa.Cmwlth.2010). Furthermore, the Commonwealth Court held up Section 306 as an example of a constitutional delegation of power in Pennsylvania] Builders Association] v. Department] of Labor & Industry], 4 A.3d 215 (Pa.Cmwlth.2010) [(en banc)].

(Reproduced Record [R.R.] at 72a.) This appeal followed.⁶

III.

On appeal,⁷ Claimant challenges the constitutionality of Section 306(a.2) of the Act, 77 P.S. § 511.2, as an unconstitutional delegation of legislative authority pursuant to Article II, Section 1 of the Pennsylvania Constitution.⁸ She. contends that this provision gives the AMA rather than the General Assembly authority to establish the criteria under which a claimant is adjudicated partially or totally disabled.

By way of background, Claimant asserts that Section 306(a.2) was added to the Act in 1996, at which time IREs were performed pursuant to the Fourth Edition of the AMA Guides. She claims that the AMA, Guides have undergone two revisions since that time and that the current (Sixth) Edition provides substantially different standards than those set forth in the Fourth Edition, thereby causing some claimants who would have been considered more than fifty percent impaired under the Fourth Edition to be less than fifty .percent impaired under the Sixth Edition.

Employer, echoing the Board’s reasoning, initially contends that we have already addressed this issue and decided that Section 306(a.2) does not constitute an unlawful delegation in both Stanish v. Workers’ Compensation Appeal Board (James J. Anderson Construction Co.), 11 A.3d 569 (Pa.Cmwlth.2010) and Wingrove v. Workers’ Compensation Appeal Board (Allegheny Energy), 83 A.3d 270 (Pa.Cmwlth.), appeal denied, 626 Pa. 680, 94 A.3d 1011 (2014).

In Stanish, a claimant challenged an April 2008 IRE performed pursuant to the Fifth Edition of the Guides, claiming that the physician’s calculations should have been' made under the more recent Sixth Edition, published in January 2008. 11 A.3d at 572. However, the employer relied on a Bureau of Workers’ Compensation (Bureau) regulation stating that the Bureau would accept IREs performed under either the Fifth or Sixth Edition until August 31, 2008, to allow physicians time to attend an approved training course on the Sixth Edition. Id., The Board affirmed the WCJ’s decision holding that as per the Bureau’s regulation, physicians were not required to use the.Sixth Edition of the Guides until September 2008. Id.

On appeal, we found that the Bureau’s regulation allowing for a grace period violated Section 306(a.2)(l)’s mandate that “The degree of impairment shall be determined ... pursuant to the most recent edition of the American Medical Association ‘Guides to the Evaluation of Permanent Impairment.”’ Id. at 573 (quoting Section 306(a.2)(l) of the Act, 77 P.S. § 511.2). We explained that the term “shall” is mandatory and that although the Bureau’s interpretation of this provision may be reasonable, it contradicts the statute’s plain language. Id. at 576. Importantly, we specifically stated that neither party in that case challenged Section 306(a.2) of the Act as an unconstitutional delegation of legislative power under Article II, Section 1 of the Pennsylvania Constitution:

Neither party raises any constitutional argument concerning whether the Legislature’s use of the phrase “the degree of impairment shall be determined based upon an evaluation by a physician ... pursuant to the most recent edition of the American Medical Association ‘Guides to the Evaluation of Permanent Impairment’ ” gives rise to any impermissible delegation of any law making power to the AMA when it issues a new text. Thus, we will not pursue this issue any further.

Id. at 573 n. 2.

In Wingrove, a claimant challenged the constitutionality of Section 306(a.2) of the Act when his status was changed from totally to partially disability following an IRE performed in accordance with the Sixth Edition of the Guides. 83 A.3d at 276. Specifically, the claimant asserted that “in some circumstances, a claimant who would have been considered to be more than 50% disabled under the most recent [Fourth] edition of the AMAs in 1996, might be less than 50% disabled under the most recent [Sixth] edition today,” and that “a different claimant with a different type of injury, who was less than 50% disabled in 1996, might be considered to be more than 50% under the most recent edition today.” Id. (citing Claimant’s Brief, at 18) (internal quotations omitted).

We determined that in Wingrove, the claimant failed to develop his constitutional argument, explaining that “[a]lthough he asserts that different editions of the AMA Impairment Guidelines may change a claimant’s impairment evaluation, he does not assert that any of these changes would have affected his 2005 IRE.” Id. at 277. Further, wfe discussed several of the difficulties in addressing a claim that Section 306(a.2) of the Act was an unconstitutional delegation of legislative authority to the AMA, finding that the claimant had addressed none of the pertinent issues and therefore failed to develop his argument to the point that he established a plain and palpable constitutional violation. Id.

IV.

Article II, Section 1 of the Pennsylvania Constitution vests legislative power in our General Assembly, “embod[ying] the fundamental concept that only the General Assembly may make laws, and cannot constitutionally delegate the power to make law to any other branch of government or to any other body or authority.” Association of Settlement Companies v. Department of Banking, 977 A.2d 1257, 1265 (Pa.Cmwlth.2009) (en banc).

As our Supreme Court explained in Holgote Brothers Co. v. Bashore:

Legislative power in Pennsylvania is vested solely in the General Assembly. Regardless of exigencies which at times arise or of how trying our economic or social conditions become, the powers and duties imposed by the Constitution upon the legislative branch of our government remain steadfast and neither the urgency of the necessity at hand nor the gravity of the situation allow the legislature to abdicate, transfer or delegate its authority or duty to another branch of the government. Our system of checks and balances in the government was wisely instituted by the framers of the Constitution for the protection of all the people of the Commonwealth and has proved an effective method to prevent unwise, hasty and imprudent legislation. So effective has been this system of government no attempt has been made to amend that part of the Constitution and it remains the fundamental law of this Commonwealth.

331 Pa. 255, 200 A. 672, 675 (1938).

Nonetheless, it has been held that the General Assembly may “delegate authority and discretion in connection with the execution and administration of a law” to an independent agency or an executive branch agency where the General Assembly first “establish[es] primary standards and impose[s] upon others the duty to carry out the declared legislative policy in accordance with the general provisions of the enabling legislation.” Blackwell v. Commonwealth, State Ethics Commission, 523 Pa. 347, 567 A.2d 630, 637 (1989). The limits on delegating such power are two fold: “(1) the basic policy choices must be made by the Legislature”; and (2) the “legislation must contain adequate standards which will guide and restrain the exercise of the delegated administrative functions.” Gilligan v. Pennsylvania Horse Racing Commission, 492 Pa. 92, 422 A.2d 487, 489 (1980), remanded, 60 Pa.Cmwlth. 541, 432 A.2d 275 (1981).

In Bell Telephone Company of Pennsylvania v. Driscoll, 343 Pa. 109, 21 A.2d 912, 915 (1941), Bell challenged Section 702 of the Public Utility Law of 1937,⁹ which then provided, “No public utility ... shall, without the prior approval of the [Public Utility] [C]omission [ (PUC)], make effective or modify any contract with an affiliated interest. ...” Id. at 913 n. 1. Our Supreme Court noted that this provision contained “no explicit standard ... to guide the [PUC],” indicating that “the legislature did not intend to set up any standard for the [PUC] in approving contracts, for its power to approve or disapprove is untrammeled by any conditions.” Id. at 915.

In rejecting the PUC’s contention that “public interest” was the implied standard for approval, the Court explained that unless further defined or limited in its meaning, the term could not serve as a proper standard because to determine whether a contract was contrary to the public interest, it is first “necessary to find what is or what is not in the public interest,” and “[t]he power to make such determination rests -with the legislature.” Id. Explaining, “[i]f the legislature fails, however, to prescribe with reasonable clarity the limits of the power delegated or if those limits are too broad its attempt to delegate is a nullity,” the Court determined that the General Assembly failed to provide standards for the PUC to employ in approving or disproving contracts. Id. at 916.

Similarly, in Association of Settlement Companies, this Court adjudicated the Department of Banking’s preliminary objections to debt-settlement services providers’ petition for review, asserting that then-Section 3(b) of the Debt Management Services Act¹⁰ unconstitutionally delegated the General Assembly’s power to regulate debt-settlement service providers’ conduct to the Department of Banking. 977 A.2d at 1263. The provision at issue stated, in pertinent part, “No person may ... provide debt settlement services to a consumer for a- fee unless the person is licensed by the department under this act and is operating in accordance with regulations promulgated by the department regarding the conduct of debt settlement services.” Section 3(b) of the Debt Management Services Act, formerly 63 P.S. § 2403(b) (emphasis added).

Determining that Section 3(b) “provide[d] the Department with no guidance or restraint regarding the regulation of ‘the conduct of debt settlement services’ ” in' that it “[wa]s silent on how debt settlement services [we]re to be provided, what an agreement to provide debt settlement services must contain, or any other provisions similar to the ones established for [Debt Management Service] Providers,” we found that Section 3(b) lacked intelligible standards to guide the Department of Banking with regard to the activities of debt settlement services providers. Association of Settlement Companies, 977 A.2d at 1268-69. We held that ill the absence of such standards, we could not find that the General Assembly’s delegation of authority to the Department of Banking was legitimate, and therefore overruled the Department’s preliminary objections in this regard. Id. at 1272.

Employer directs us to Pennsylvania Builders Association v. Department of Labor & Industry, 4 A.3d 215 (Pa.Cmwlth.2010) (fin banc), a case in which we addressed an association’s contention that a provision of the Pennsylvania Construction Code Act¹¹ was invalid as an unconstitutional delegation of authority by the Gen•eral Assembly. Id. at 219. . Pursuant to .Section 301(a) of the Pennsylvania Construction Code Act, 35 P.S. § 7210.301(a), the Department of Labor and Industry (Department) was required to promulgate regulations adopting the then-current versions of the National Building Code¹² and the International One- and Two-Family Dwelling Code.¹³ Pennsylvania Builders Association, 4 A.3d at 218. Further, Section 304(a) of the Pennsylvania Construction Code Act, 35 P.S. § 7210.304(a), required the Department to promulgate regulations at the end of each year in which these codes were modified, adopting or rejecting the changes pursuant to the recommendation of the Uniform Construction Code Review and Advisory Council (Advisory Council), the members of which were appointed by the Governor. See Section 107(b)(2) of the Pennsylvania Construction Code Act, added by Act of October 9, 2008, P.L. 1386, as 'amended, 35 P.S. § 7210.107(b)(2). Following the issuance of revisions in 2009, the Advisory Council notified the Department that it had no exclusions to recommend, and the Department promulgated regulations adopting the changes. Pennsylvania Builders Association, 4 A.3d at 218-19 & n. 6; see also 39 Pa. Bull. 7196 (December 26, 2009).

In sustaining the Department’s preliminary objections to the association’s claim that the General Assembly had improperly vested its legislative authority in the International Code Council, we explained:

[T]o the extent the General Assembly was attempting via the [Pennsylvania Construction Code Act] to delegate its rule-making authority over Pennsylvania’s building codes to [the Department] and, consequently [International Code Council], it had the authority to do so as long as, in light of the subject matter covered and the scope of the powers granted therein, the [Pennsylvania Construction Code Act] sets forth a definite and reasonable standard for such authority.

Pennsylvania Builders Association, 4 A.3d at 221.

Just as in Bell Telephone Company of Pennsylvania and Association of Settlement Companies, and unlike in Pennsylvania Builders Association, in the instant case, the General Assembly has failed to prescribe any intelligible standards to guide the AMA’s determination regarding the methodology to be used in grading impairments. Section 306(a.2) of the Act is wholly devoid of any articulations of public policy governing the AMA in this regard and of adequate standards to guide and restrain the AMA’s exercise of this delegated determination by which physicians and WCJs are bound. Indeed, Section 306(a.2) merely requires that the most recent version of the AMA Guides be used to determine a claimant’s impairment rating. 77 P.S. § 511.2. Accordingly, under this basis alone, we find Section 306(a.2) of the Act unconstitutional.¹⁴

Additionally, Section 306(a.2) of the Act lacks a mechanism requiring governmental-review of the Guides by the promulgation of regulations. In' the above cases, we examined if there were adequate standards to guide and restrain governmental agencies in carrying out the General Assembly’s legislative intent. The challenged delegation here is not to a governmental agency but to a private party — the AMA. While it is well-established that the General Assembly may adopt as its own standards established by specialized groups with' intimate factual knowledge of the subject matter, it must make the basic policy choices or provide standards to government agencies charged with adopting regulations to implement the standards established by specialized groups. In Pennsylvania Builders Association, the Pennsylvania Construction Code Act required the Department to promulgate regulations by the end of. each year in which the subject codes were modified to update the Pennsylvania UCC, and we approved a Department regulation adopting the International Code Council’s 2009 codes pursuant to this Act. 4 A3d.at 226. Critically, the Act required the Department to promulgate regulations each year the codes were modified and established standards for doing so; it did not merely adopt all new codes proactively. Id. at 218.

In this case, the General Assembly adopted as its own the methodology enumerated by the AMA at the time it enacted Section 306(a.2) — that is, the methodology contained in the Fourth Edition of the Guides. The General Assembly has not reviewed and re-adopted the methodology contained in subsequent editions. Moreover, unlike in Pennsylvania Builders Association where the General Assembly provided for review of the new codes by the Department of Labor and Industry, in this case, any form of review of subsequent editions of the AMA Guides is wholly absent, leaving unchecked discretion completely in the hands of a private entity. The legislature has simply provided a private party — the AMA — with carte blanche authority to implement its own policies and standards, proactively adopting those standards, sight unseen.

Even then if we had found that there are adequate standards allowing for a delegation to a governmental agency, Section 306(a.2)(l) would still be unconstitutional because the delegation here was to a private party. 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.¹⁵ 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.¹⁶

Accordingly, we declare Section 306(a.2) of the Act, 77 P.S. § 511.2, an unconstitutional delegation of legislative authority insofar as it proactively approved versions of the AMA Guides beyond the Fourth Edition without review. Further, we vacate the Board’s decision with respect to Employer’s modification petition and remand this matter to the Board with instruction to remand to the WCJ to apply the Fourth Edition of the AMA Guides in adjudicating the same.

ORDER

AND NOW, this 18th day of September, 2015, upon finding Section 306(a.2) of the Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.2, added by the Act of June 24,1996, P.L. 350, an unconstitutional delegation of legislative authority insofar as it purports to adopt a new version of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Guides), the order of the Workers’ Compensation Appeal Board dated May 22, 2014, in the above-captioned case is vacated. This matter is remanded to the Workers’ Compensation Appeal Board with instruction to remand further to the Workers’ Compensation Judge to apply the Fourth Edition of the Guides in effect when the provision was enacted in adjudicating Derry Area School District’s petition to modify benefits.

Jurisdiction relinquished.

1 . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.2, added by the Act of June 24, 1996, P.L. 350.

2 . Dr. Moldovan previously evaluated Claimant in December 2009, but could not perform an IRE as Claimant had not yet obtained maximum medical improvement from her work injury. Following the second IRE, in November 2011, Employer issued a notice of change of workers' compensation disability status, changing Claimant’s status from total to partial disability, effective the date of Dr. Moldovan’s IRE. Claimant then filed a petition to review compensation benefits, alleging an incorrect description of her work injury and challenging Employer’s unilateral conversion of her total disability benefits. The WCJ issued an order finding that Employer was not entitled to automatically convert Claimant’s total disability benefits to partial disability benefits and setting aside Employer's notice of change of workers’ compensation disability status.

3 . Section 306(a.2) of the Act provides:

(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 disability benefits under clause (b): Provided, however, That no reduction shall be made until sixty days' notice of modification is given.

(3) Unless otherwise adjudicated or agreed to based upon a determination of earning power under clause (b)(2), the amount of compensation shall not be affected as a result of the change in disability status and shall remain the same. An insurer or employe may, at any time prior to or during the five hundred-week period of partial disability, show that the employe’s earning power has changed.

(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 fifly 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.”

(6) Upon request of the insurer, the employe shall submit to an independent medical examination in accordance with the provisions of section 314 to determine the status of impairment: Provided, however, That for purposes of this clause, the employe shall not be required to submit to more than two independent medical examinations under this clause during a twelvemonth period.

(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.

(8)(i) For purposes of this clause, the term “impairment” shall mean an anatomic or functional abnormality or loss that results from the compensable injury and is reasonably presumed to be permanent.

(ii) For purposes of this clause, the term "impairment rating” shall mean the percentage of permanent impairment of the whole body resulting from the compensable injury. The percentage rating for impairment under this clause shall represent only that impairment that is the result of the compensable injury and not for any preexisting work-related or nonwork-related impairment.

77 P.S. § *511.2 (emphasis added).

4 .Because Claimant, does not challenge the WCJ's factual findings, we need not summarize the testimony presented to the WCJ.

5 . The WCJ further granted Claimant’s review petition and amended the description of her injury.

6 . We review Board decisions to determine whether errors of law were made, whether constitutional rights were violated, and whether necessary findings of fact are supported by substantial evidence. Ward v. Workers' Compensation Appeal Board (City of Philadelphia), 966 A.2d 1159, 1162 n. 4 (Pa. Cmwlth.), appeal denied, 603 Pa. 687, 982 A.2d 1229 (2009). As we explained in Association of Settlement Companies v. Department of Banking, legislative enactments enjoy a strong presumption that they do not violate the Constitution. 977 A.2d 1257, 1261 (Pa.Cmwlth.2009) (en banc).

7 . At the outset, Employer asserts that Claimant-waived her right to argue that Section 306(a.2) of the Act is an unconstitutional delegation of authority since that argument is premised upon Article II, Section 1 of the Pennsylvania Constitution, a provision, that was raised for the first time before this Court. While Claimant did cite only Article III, Section 1 in her appeal before the Board and in her petition for review, there can be no doubt regarding the nature of her argument below. See Pa. R.A.P. 1513(d)(5) (stating that the petition for review shall contain "a general statement of the objections to the order or ' other determination, but the omission of an issue from the statement shall not be the basis for a finding of waiver if the court is able to address the issue based on the certified record”). Indeed, although she may have cited the wrong constitutional provision, the Board was clearly able to discern and address her argument, as are we. (See R.R. at 72a (“Claimant does not challenge’ or appeal the specific factual findings or legal conclusions of the WCJ other than to argue that Section 306 is an unconstitutional delegation of legislative authority.”)). Moreover, "[qjuestions involving the validity of a statute” may be raised before this Court even if they were not raised before the administrative agency below. Pa. R.A.P. 1551(a)(1); see also Section 703 of the Administrative Agency Law, 2 Pa. C.S. § 703 ("A party who proceeded before a Commonwealth agency under the terms of a particular statute shall not be precluded from questioning the validity of the statute in the appeal .., ”). Therefore, we will proceed to address the merits of Claimant's appeal.

8 . Article II, Section 1 states, "The legislative power of this Commonwealth.shall be vested in a General Assembly, which shall consist of a Senate and á House of Representatives.” Pa. Const, art. II, § 1.

9 . Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. § 1272, repealed and replaced by the Public Utility Code, 66 Pa.C.S. §§ 101-3316.

10 . Act of October 9, 2008, P.L. 1421, 63 P.S. § 2403(b), repealed by Act of July 9, 2014, P.L. 1022.

11 . Act of November 10, 1999, P.L. 491, as amended, 35 P.S. §§ 7210.101-.1103.

12 . Building Officials and Code Administrators International, Inc., National Building Code (14th ed. 1999).

13 .International Code Council, Inc., International One- and Two-Family Dwelling Code (1998 ed.).

14 . Judge Simpson's dissenting opinion concludes that the majority "misses the mark ... because the General Assembly delegated initial determinations of impairment ratings to impartial, Pennsylvania-licensed, board-certified, clinically active physicians; the AMA does not participate in impairment ratings under the Act.” (Dissenting Opinion, at ’418.) While it is true that individual physicians must provide impairment ratings, under Section 306(a,2) of the Act, they must apply and are bound by the method prescribed by the AMA. Likewise, a WCJ reviewing a petition to modify benefits based upon an IRE may assess the physician’s credibility but is not free to adopt a different methodology. Thus, although "the AMA does not participate in impairment ratings under the Act,” it provides the "rules” or "laws” which govern them. Further, Judge Simpson determines that the General Assembly provided numerous standards regarding the methodology to be used in rendering impairment ratings and states that the most recent edition of the AMA Guides, is but a part of this guidance. Specifically, he sets forth seven policy ^ decisions the General Assembly made in this regard. (Dissenting Opinion, at 418-19.) However, of the seven policies listed, the first three pertain to who makes the impairment ratings, and the next three policies describe what must be evaluated. Only the seventh policy, stating that the evaluating physician must proceed in accordance with the most recent edition of the AMA Guides, pertains to how those ratings ■are to be calculated, and as stated above, the General Assembly provides absolutely no standards in this regard. The fact that the AMA has professional expertise in this arena is of no consequence.

15 . In Carter v. Carter Coal Co., the United States Supreme Court struck down a provision of the Bituminous Coal Conservation Act of 1935, 15 U.S.C. §§ 801-827, delegating authority to fix maximum hours of labor and set minimum wages to a portion of the producers and a majority of the miners. 298 U.S. 238, 311, 56 S.Ct. 855, 873, 80 L.Ed. 1160 (1936). Although this issue was decided under the due process clause of the Fifth Amendment, the Court’s rationale is equally applicable here: "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.” Id.

16 . Employer further relies on Gima v. Hudson Coal Co., 310 Pa. 480, 165 A. 850, 851 (1933). However, Gima has been inferentially overruled because it is at odds with later Supreme Court decisions such as Bell Telephone Company of Pennsylvania v. Driscoll, 343 Pa. 109, 21 A.2d 912, 915 (1941), in that it did not examine whether the challenged provision, Rule 29, Article XII of the Anthracite Mine Law, Act of June 2, 1891, P.L. 176, 52 P.S. § 424, repealed and replaced by the Pennsylvania Anthracite Coal Mine Act, Act of November 10, 1965, P.L. 721, 52 P.S. §§ 70-101-1405, contained explicit standards to be applied in promulgating the subject safety rules and only cited cases involving delegation to governmental agencies.