Does 'Protz' Deal a 'Life-Threatening Injury' to Trauma Billing Under Pa’s Workers’ Comp Act?

In one of the most notorious Pennsylvania workers’ compensation decisions in recent memory, the Pennsylvania Supreme Court in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017), held that the impairment rating evaluation (IRE) process established by the General Assembly’s Act 57 of 1996 was unconstitutional, as it prospectively adopted subsequent editions of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment without legislative oversight, in violation of the nondelegation doctrine. The General Assembly has since replaced Act 57 with Act 111 in response to Protz. However, the Protz decision calls into question other provisions of the Pennsylvania Workers’ Compensation Act (the act). Of particular noteworthiness, the reimbursement rate for emergency trauma care under the act depends on standards promulgated by the American College of Surgeons (ACS). This article will discuss the nondelegation doctrine and its applicability to both the IRE process and medical billing under the act. This article will further propose a legislative change to cure these constitutional concerns.

Commonly known as the “nondelegation doctrine,” Article II, Section 1 of the Pennsylvania Constitution exclusively vests the General Assembly with legislative authority, which may not be delegated to any other branch of government or to any other private party. Over time, the strictness of the nondelegation doctrine has relaxed, both federally and in Pennsylvania, enabling the rise of the administrative state. Today, the General Assembly may delegate rulemaking authority to an executive administrative agency, so long as the enabling legislation contains “adequate standards which will guide and restrain the exercise of the delegated administrative functions,” much like the “intelligible principle” standard utilized at the federal level. See Gilligan v. Pennsylvania Horse Racing Commission, 422 A.2d 487, 489 (Pa. 1980). However, it remains generally unconstitutional for the General Assembly to delegate legislative authority to a private entity.