Protz, M. v. WCAB (Derry SD) Apl of: Derry SD ( 2017 )


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  •                           [J -100A-2016 and J -100B-2016]
    IN THE SUPREME COURT OF PENNSYLVANIA
    WESTERN DISTRICT
    SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
    MARY ANN PROTZ,                              :   No. 6 WAP 2016
    Appellant                :   Appeal from the Order of the
    :   Commonwealth Court entered
    :   September 18, 2015 at No. 1024 CD
    v.                              :   2014, vacating the Order of the
    :   Workers' Compensation Appeal Board
    :   entered May 22, 2014 at No. A13-0096
    WORKERS' COMPENSATION APPEAL                 :   and remanding with instructions.
    BOARD (DERRY AREA SCHOOL
    DISTRICT),                                   :   ARGUED: November     1,   2016
    Appellees
    MARY ANN PROTZ                               :   No. 7 WAP 2016
    :   Appeal from the Order of the
    v.                              :   Commonwealth Court entered
    :   September 18, 2015 at No. 1024 CD
    :   2014, vacating the Order of the
    WORKERS' COMPENSATION APPEAL                 :   Workers' Compensation Appeal Board
    BOARD (DERRY AREA SCHOOL                     :   entered May 22, 2014 at No. A13-0096,
    DISTRICT)                                    :   and remanding with instructions.
    :   ARGUED: November     1,   2016
    APPEAL OF: DERRY AREA SCHOOL
    DISTRICT
    OPINION
    JUSTICE WECHT                                    DECIDED: JUNE 20, 2017
    Section 306(a.2) of the Workers' Compensation Act allows employers to demand
    that a claimant undergo an impairment -rating evaluation (IRE), during which a physician
    must determine the "degree of impairment" that is due to the claimant's compensable
    injury.        See 77 P.S. § 511.2(1).       In   order to make this assessment, the Act requires
    physicians to apply the methodology set forth in "the most recent edition" of the
    American          Medical Association        (AMA)    Guides to the Evaluation of Permanent
    Impairment.         
    Id. In these
    consolidated appeals, we consider whether this mandate
    violates the constitutional requirement that all legislative power "be vested in a General
    Assembly, which shall consist of a Senate and a House of Representatives."                    PA.
    CONST. art. II, § 1.      We hold that it does.
    In    2007, Mary Ann Protz sustained a work -related knee injury. Shortly thereafter,
    her employer, Derry Area School District (Derry), voluntarily began paying temporary
    total disability benefits.        In   October 2011, Protz underwent an IRE at Derry's request.
    The IRE physician evaluated Protz and assigned to her a 10% impairment rating based
    upon the Sixth Edition of the American Medical Association Guides to the Evaluation of
    Permanent Impairment (the Guides).' Because Protz's impairment rating was less than
    50%, Derry filed a modification petition seeking to convert Protz's disability status from
    total to partial-the effect of which would be to limit the duration that Protz could receive
    workers' compensation benefits.2 See 77 P.S. § 511.2(2) (providing that a claimant with
    "a threshold impairment rating that is equal to or greater than fifty per centum" is
    presumed to be totally disabled); 77 P.S. § 511.2(7) (limiting partial disability payments
    1
    When Section 306(a.2) was enacted in 1996, the Fourth Edition of the Guides
    was the "most recent edition." Since then, the Guides have undergone two major
    revisions, the Fifth Edition (in 2001) and the Sixth Edition (in 2008).
    2
    an employer requests an IRE within sixty days of the claimant's receipt of 104
    If
    weeks of total -disability benefits, and the IRE yields an impairment rating of less than
    50%, the IRE is self-executing, meaning that the claimant's disability status can be
    modified from total to partial without the involvement of a Workers' Compensation
    Judge. 77 P.S. § 511.2(1)-(2). Because Derry requested the instant IRE well beyond
    that timeframe, Derry could not automatically modify Protz's disability status. See
    Gardner v. W.C.A.B. (Genesis Health Ventures), 
    888 A.2d 758
    (Pa. 2005).
    [J -100A-2016 and J -100B-2016] - 2
    to five hundred weeks).     After holding a hearing on Derry's modification petition, a
    Workers' Compensation Judge (WCJ) ruled that Protz's whole -body impairment was
    less than 50%, and accordingly granted the petition.
    Protz appealed to the Workers' Compensation Appeal Board, arguing that the
    General Assembly unconstitutionally delegated to the AMA the authority to establish
    criteria for evaluating permanent impairment.             See 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.").                      The Board rejected
    Protz's constitutional argument and affirmed the WCJ's decision.
    Protz appealed to the Commonwealth Court, where she again argued that
    Section 306(a.2) of the Act violates Article   II,   Section   1   of the Pennsylvania Constitution.
    The Commonwealth Court, sitting en banc, reversed the Board's decision. The en banc
    panel agreed with Protz that Section 306(a.2)'s requirement that physicians use "the
    most recent edition" of the Guides violates Article II, Section 1.                Writing for the four -
    judge majority, Senior Judge Dan Pellegrini recited the basic principle that the General
    Assembly alone has the power to make laws, and it cannot constitutionally delegate that
    power to any other branch of government or to any other body.                       Protz   v.   W.C.A.B.
    (Derry Area Sch. Dist.), 
    124 A.3d 406
    , 412 (Pa. Cmwlth. 2015).
    The court acknowledged that, despite this seemingly broad prohibition, "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 establishes primary standards and imposes
    upon others the duty to carry out the declared legislative policy in accordance with the
    general provisions of the enabling legislation."                   
    Id. at 413
      (citing Blackwell       v.
    Commonwealth, State Ethics Commission, 
    567 A.2d 630
    , 637 (Pa. 1989)). The court
    [J -100A-2016 and J -100B-2016] - 3
    explained that, when the legislature chooses to so delegate, two critical limitations
    apply: first, "the basic policy choices must be made by the [I]egislature;" and second,
    "the legislation must contain adequate standards which will guide and restrain the
    exercise of the delegated administrative functions."     
    Id. (citing Gilligan
    v. Pa. Horse
    Racing Commission, 
    422 A.2d 487
    , 489 (Pa. 1980)).
    Applying this test, the Commonwealth Court concluded that "the Act is wholly
    devoid of any articulations of public policy governing the AMA," and that the Act lacks
    "adequate standards to guide and restrain the AMA's exercise" of its delegated power to
    create a methodology for grading impairment. 
    Id. at 415.
    Instead, the court remarked,
    the General Assembly bestowed upon the AMA "carte blanche authority to implement
    [the AMA's] own policies and standards," which are then automatically adopted, sight
    unseen. 
    Id. at 416.
    The court went on to explain that, even if the General Assembly had included
    "adequate standards" to "guide and restrain" the AMA's exercise of delegated authority,
    Section 306(a.2) still would be unconstitutional because the AMA is a private
    organization. Along these lines, the court noted that:
    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. 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.
    
    Id. Rather than
    striking all of Section 306(a.2), or undertaking a severability analysis,
    the Commonwealth Court declared the law unconstitutional only "insofar as it
    proactively approved versions of the AMA Guides beyond the Fourth Edition without
    [J -100A-2016 and J -100B-2016] - 4
    review." 
    Id. Consistent with
    that narrow remedy, the court remanded the instant matter
    to the WCJ with instructions to apply the Fourth Edition of the Guides, the version in
    existence when the General Assembly enacted Section 306(a.2) in 1996.
    Judges Anne Covey and Robert Simpson each authored dissenting opinions.             In
    Judge Simpson's view, Section 306(a.2) withstands constitutional scrutiny in light of the
    fact that "the General Assembly delegated initial impairment ratings to an independent,
    Pennsylvania -licensed, board -certified, clinically -active physician," not to the AMA itself.
    
    Id. at 417
    (Simpson, J., dissenting).           Judge Simpson also maintained that, because it
    would be impractical to expect the legislature to establish and constantly revise a set of
    standards for evaluating physical impairment, "the General Assembly may rely on the
    medical expertise of the AMA, a well -recognized independent authority, in expressing
    current, best -practice medical knowledge."              
    Id. at 420.
         Finally, Judge Simpson
    observed that "other states have adopted and judicially upheld similar workers'
    compensation provisions requiring the use of the most recent edition of the AMA Guides
    in   evaluating impairment in workers' compensation cases." 
    Id. at 419
    (citing Madrid         v.
    St. Joseph Hosp., 
    928 P.2d 250
    (N.M. 1996) (rejecting a non -delegation challenge
    involving the New Mexico legislature's adoption of "the most recent edition" of the
    Guides)).        Judge Covey joined Judge Simpson's dissent and authored a separate
    dissent addressing the majority's alternative holding that all delegations to private
    entities are unconstitutional.
    Both parties filed petitions for allowance of appeal with this Court, which we
    granted. Derry takes issue with the Commonwealth Court's conclusion that the General
    Assembly's prospective adoption of "the most recent edition" of the Guides violates
    Article   II,   Section   1,   whereas Protz argues that the Commonwealth Court, after finding
    [J -100A-2016 and J -100B-2016] - 5
    Section 306(a.2) to be unconstitutional, erred in remanding her case to the WCJ for
    application of the Fourth Edition of the Guides.
    We begin with the non -delegation issue, as to which our standard of review is de
    novo and our scope of review plenary. City of Phila.             v.   Fraternal Order of Police Lodge
    No. 5 (Breary), 
    985 A.2d 1259
    , 1269 n.13 (Pa. 2009). Because the parties' arguments
    largely reflect the views expressed in the majority and dissenting opinions below, we
    need not recite them at length. In short, Derry argues that the General Assembly is free
    to adopt current and future standards that are published by "a well -recognized
    independent authority." Brief for Derry at 28 (quoting 
    Protz, 124 A.3d at 420
    (Simpson,
    J., dissenting)).      Protz, on the other hand, maintains that Section 306(a.2) violates the
    non -delegation doctrine embodied in our Constitution                   because it gives the AMA
    unfettered discretion over Pennsylvania's impairment -rating methodology. See Brief for
    Protz at 16.
    Article   II,   Section    1   of the Pennsylvania Constitution states that "[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." PA. CONST. art.                  II, § 1.   That is
    why, when the General Assembly empowers some other branch or body to act, our
    jurisprudence requires "that the basic policy choices involved in 'legislative power'
    actually be made by the [I]egislature as constitutionally mandated."                    Tosto    v.   Pa.
    Nursing Home Loan Agency, 
    331 A.2d 198
    , 202 (Pa. 1975). This constraint serves two
    purposes. First, it ensures that duly authorized and politically responsible officials make
    all of the necessary policy decisions, as is their mandate per the electorate.              Wm. Penn
    Parking Garage, Inc.         v.       City of Pittsburgh, 
    346 A.2d 269
    , 291 (Pa. 1975) (plurality
    opinion). And second, it seeks to protect against the arbitrary exercise of unnecessary
    and uncontrolled discretionary power. 
    Id. [J -100A-2016
    and J -100B-2016] - 6
    At the heart of the non -delegation doctrine, which we have described as a
    "natural corollary" to the text of Article II, Section 1, is the tenet that the General
    Assembly cannot delegate "to any other branch of government or to any other body or
    authority" the power to make law. 
    Blackwell, 567 A.2d at 636
    ; State Bd. of Chiropractic
    Exam'rs     v.   Life Fellowship of Pa., 
    272 A.2d 478
    , 480 (Pa. 1971). Or, as John Locke put
    it,   legislative power consists of the power "to make laws, and not to make legislators."
    JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 87 (R. Cox                     ed.1982). Indeed, the rule is
    essential to the American tripartite system of representative government. The framers
    of the Constitution believed that the integrity of the legislative function was vital to the
    preservation of liberty. See Dep't of Transp.       v.   Ass'n of Am. Railroads,            U.S.     ,
    
    135 S. Ct. 1225
    , 1237 (2015) (Alito, J., concurring) ("The principle that Congress cannot
    delegate away its vested power exists to protect liberty."); see also The Federalist No.
    47, at 301         (J. Cooke ed.   1961) (J. Madison) ("The accumulation of all powers,
    legislative, executive, and judiciary, in the same hands         .   .   .   may justly be pronounced
    the very definition of tyranny.").
    Although our Constitution generally forbids the delegation of "legislative power," it
    nonetheless permits the General Assembly, in some instances, to assign the authority
    and discretion to execute or administer a law. 
    Blackwell, 567 A.2d at 637
    . When the
    General Assembly does so, the Constitution imposes two fundamental limitations. First,
    as mentioned, the General Assembly must make "the basic policy choices," and
    second, the legislation must include "adequate standards which will guide and restrain
    the exercise of the delegated administrative functions."                      Pennsylvanians Against
    Gambling Expansion Fund, Inc.        v.   Commonwealth, 
    877 A.2d 383
    , 418 (Pa. 2005); State
    Bd. of Chiropractic 
    Exam'rs, 272 A.2d at 481
    (quoting Chartiers Valley Joint Sch. v. Cty.
    Bd.    of Sch. Dirs. of Allegheny Cty.,    
    211 A.2d 487
    , 492-93 (Pa. 1965)). This means, to
    [J -100A-2016 and J -100B-2016] - 7
    borrow Chief Justice Taft's oft -quoted expression, that the law must contain some
    "intelligible principle to which the person or body authorized to [act] is directed to
    conform." J.W. Hampton, Jr., & Co.     v.   United States, 
    276 U.S. 394
    , 409 (1928).
    In   many non -delegation cases, this Court also has stressed the importance of
    procedural mechanisms that serve to limit or prevent the arbitrary and capricious
    exercise of delegated power.        
    Tosto, 331 A.2d at 203
    ; see W. Phila. Achievement
    Charter Elementary Sch.   v.   Sch. Dist. of Phila., 
    132 A.3d 957
    , 966 (Pa. 2016). In Tosto,
    for example, the statute at issue required that the administrative agency establish
    neutral operating procedures, develop standardized documents, and give the public
    notice of proposed agency rules and regulations before promulgating them.                    In
    upholding the law, we described these elements as "important safeguard[s] against the
    arbitrariness of ad hoc decision making." 
    Tosto, 331 A.2d at 204
    .
    Similarly, in William Penn, we upheld a tax enabling statute that delegated to the
    judiciary the power to assess whether certain local taxes were "excessive or
    unreasonable." Wm. Penn Parking Garage, 
    Inc., 346 A.2d at 291
    . There, a plurality of
    this Court found it significant that the General Assembly had assigned this task to the
    courts, rather than to an administrative body, because the very structure of the judiciary
    serves to protect against the arbitrariness of ad hoc decision making.     In   this regard, we
    emphasized that a trial court operating under the statute "must explain the grounds of its
    decision in a reasoned opinion which will serve as a precedent to guide decisions in
    future cases," and that "trial courts are subject to careful review by appellate courts to
    [e]nsure the general consistency of their actions with one another and to confine them
    within their proper sphere." 
    Id. at 291-92.
    This Court's most recent non -delegation decision involved a provision in the
    Public School Code, see 24 P.S. §§ 1-101         - 27-2702, that gave a five -member School
    [J -100A-2016 and J -100B-2016] - 8
    Reform Commission (comprised mostly of individuals appointed by the Governor)
    sweeping powers to improve the finances of distressed school districts. Among other
    things, the law delegated to the School Reform Commission the authority to suspend
    regulations of the State Board of Education and to suspend provisions of the Public
    School Code. W. Phila. Achievement Charter Elementary 
    Sch., 132 A.3d at 959
    . The
    General Assembly placed only minor restrictions upon the Commission's authority.
    First, the General Assembly put a few provisions of the Public School Code beyond the
    reach of the Commission's suspension power, most of which related to local school -
    board elections. Second, the General Assembly required that the Commission submit
    annually a report to the Governor and the Education Committees of both the House and
    the Senate detailing the progress made in fiscal and academic performance.         Finally,
    individual members of the Commission, as public employees, could be removed by the
    Governor for "malfeasance or misfeasance."       
    Id. at 971
    (Baer, J., dissenting).   This
    Court held that the law violated the non -delegation doctrine because it did not include
    concrete measures to channel the Commission's discretion to wield its suspension
    power, nor did it include safeguards to protect against arbitrary, ad hoc decision making,
    such as a requirement that the Commission hold hearings, allow for public notice and
    comment, or explain the grounds for its suspensions in a reasoned opinion subject to
    judicial review.
    By any objective measure, the authority delegated to the AMA in Section
    306(a.2) of the Workers' Compensation Act is even more broad and unbridled than that
    of   the School    Reform Commission     in   West Philadelphia Achievement Charter
    Elementary School. The General Assembly did not favor any particular policies relative
    to the Guides' methodology for grading impairments, nor did it prescribe any standards
    [J -100A-2016 and J -100B-2016] - 9
    to guide and restrain the AMA's discretion to create such a methodology.3 Without any
    parameters cabining its authority, the AMA would be free to: (1) concoct a formula that
    yields impairment ratings which are so inflated that virtually every claimant would be
    deemed to be at least 50% impaired; or (2) draft a version of the Guides guaranteed to
    yield impartment ratings so miniscule that almost no one who undergoes an IRE clears
    the 50% threshold; or (3) do anything in between those two extremes. The AMA could
    add new chapters to the Guides, or it could remove existing ones. It could even create
    distinct criteria to be applied only to claimants of a particular race, gender, or
    nationality.4
    3
    It is not even clear that the General Assembly, within the bounds of the
    Constitution, could meaningfully "guide" the AMA's discretion over the Guides'
    methodology. See Agency for Intl. Dev. v. Alliance for Open Soc'y Intl., Inc., 570 U.S.
    , 
    133 S. Ct. 2321
    (2013) (holding that the First Amendment prevents the government
    from forcing a private organization to profess publicly a viewpoint not held by the
    organization); Knox v. Serv. Emps. Int'l Union, Local 1000, 
    567 U.S. 298
    ,      
    132 S. Ct. 2277
    , 2288 (2012) ("The government may not     .   .compel the endorsement of ideas that
    .
    it approves."); Turner Broad. Sys., Inc. v. FCC, 
    512 U.S. 622
    , 641 (1994) ("At the heart
    of the First Amendment lies the principle that each person should decide for himself or
    herself the ideas and beliefs deserving of expression, consideration, and adherence.").
    Furthermore, because the use of the Guides is not unique to Pennsylvania law (or even
    to workers' compensation law generally), it is doubtful that the AMA would take
    marching orders from any one state legislature. See AM. MED. Ass'N, GUIDES TO THE
    EVALUATION OF PERMANENT IMPAIRMENT 20 (6th ed. 2008) ("In the United States, 44
    states, 2 commonwealths, and federal employee compensation systems (in about 90+%
    of US jurisdictions) either mandate or recommend using the Guides to measure
    impairment in workers' compensation claims.").
    4
    To be clear, we have no reason to suspect that the AMA has exercised its
    authority in an arbitrary or unreasonable manner. Cf. Amicus Brief for The Insurance
    Federation of Pennsylvania & The American Insurance Association at 17 (arguing that
    the Commonwealth Court's opinion below portrays the AMA as "some shady,
    untrustworthy enterprise" and "reflects a surprising hostility towards the medical
    profession"). Our Constitution restricts the General Assembly's ability to delegate
    legislative authority regardless of the manner in which the recipient wields it. That the
    AMA has opted to use its powers for good, so to speak, is no antidote.
    [J -100A-2016 and J -100B-2016] - 10
    Consider also that the AMA could revise the Guides once every ten years or
    once every ten weeks.      If   the AMA chooses to publish new editions infrequently,
    Pennsylvania law may fail to account for recent medical advances.          By contrast,
    excessive revisions would likely pose severe administrative headaches, inasmuch as
    the Guides automatically have the force and effect of law once published.      As these
    hypotheticals illustrate, the General Assembly 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.
    Equally problematic, the General Assembly did not include in Section 306(a.2)
    any of the procedural mechanisms that this Court has considered essential to protect
    against "administrative arbitrariness and caprice." 
    Tosto, 331 A.2d at 203
    . The General
    Assembly did not, for example, require that the AMA hold hearings, accept public
    comments, or explain the grounds for its methodology in a reasoned opinion, which then
    could be subject to judicial review.5 Further, the AMA physicians who author the Guides
    are, of course, not public employees who may be subject to discipline or removal.
    5
    To the contrary, the AMA's revision process has been denounced for its lack of
    transparency. In a 2004 article, a group of physicians who authored a chapter of the
    Fifth Edition of the Guides offered the following critique.
    The paucity of research on the AMA system is striking, given the fact that
    evaluations based on it determine the allocation of billions of dollars in
    medical and wage replacement payments. In the absence of scientific
    data, the AMA system relies almost exclusively on the opinions of panels
    of medical consultants. Unfortunately, no details have been published
    about how the expert panels were selected or the processes they followed
    to reach decisions about impairment. Moreover, since several different
    groups of experts contributed to the AMA Guides[,] there are significant
    inconsistencies throughout the text.       The combination of inadequate
    validation research and ambiguity regarding the expert panels makes it
    difficult for us or any other observers to determine which elements of the
    AMA system are well substantiated, and which ones need significant
    revision.
    (continued...   )
    [J -100A-2016 and J -100B-2016] - 11
    Echoing Judge Simpson's dissent, Derry argues that the General Assembly
    restrained the AMA's authority by mandating that that all IREs be performed by a
    Pennsylvania -licensed, clinically active physician. See Brief for Derry at 27. We fail to
    see how this does anything to prevent the AMA from acting arbitrarily. Again, Section
    306(a.2) provides that "[t]he degree of impairment shall be determined based upon an
    evaluation by a physician   .   .   .   pursuant to the most recent edition of the [AMA] 'Guides
    to the Evaluation of Permanent Impairment." 77 P.S. § 511.2(1). Thus, the evaluating
    physician, who is constrained by law to follow the Guides, has no power to limit the
    AMA's delegated authority.
    We also find unavailing               Derry's suggestion that the General Assembly's
    prospective adoption of future editions of the Guides constitutes a "policy decision" to
    use   the   "the   most   up-to-date          medical   knowledge   when    making   impairment
    assessments." Brief for Derry at 29, 33 (arguing that that the General Assembly made
    the "policy decision" to "apply the most up-to-date standards reflecting the most current
    medical thinking"). As an initial matter, we question Derry's portrayal of the Guides as
    merely a collection of medical knowledge. See Ellen Smith Pryor, Flawed Promises: A
    Critical Evaluation of the American Medical Association's Guides to the Evaluation of
    Permanent Impairment, 103 HARV. L. REV. 964 (1990) (stating that the Guides, "like any
    impairment rating scheme, [rest] in large part on important and difficult normative
    judgments"). More importantly, Derry's contention distills to a tautology: that the non -
    delegation doctrine, which exists to prevent the General Assembly from delegating its
    lawmaking authority, is not violated whenever the General Assembly "decides" to
    (... continued)
    James P. Robinson, Dennis C. Turk & John D. Loeser, Pain, Impairment, and Disability
    in the AMA Guides, 
    32 Johns. L
    . MED. & ETHICS 315-16 (2004) (footnote omitted).
    [J -100A-2016 and J -100B-2016] - 12
    delegate its lawmaking authority.          Because this reasoning would render the non -
    delegation doctrine a nullity, we must reject it.
    This case involves one additional wrinkle not present in West Philadelphia
    Achievement Charter Elementary School or           in Tosto.   Here, unlike in those cases, the
    General Assembly delegated authority to a private entity, not to a government agency or
    body. Conceptually, this fact poses unique concerns that are absent when the General
    Assembly, for instance, vests an executive -branch agency with the discretion to
    administer the law.        One such concern is that private entities are isolated from the
    political process, and, as a result, are shielded from political accountability.6 Because of
    this, it is perhaps unsurprising that our precedents have long expressed hostility toward
    delegations of governmental authority to private actors. Hetherington          v.    McHale, 329
    6
    With regard to the federal non -delegation doctrine, at least one United States
    Supreme Court Justice rejected the notion that the legislature can delegate authority to
    entities that are not accountable to the public.
    If rulemaking can be entirely unrelated to the exercise of judicial or
    executive powers, foresee all manner of "expert" bodies, insulated from
    I
    the political process, to which Congress will delegate various portions of
    its lawmaking responsibility. How tempting to create an expert Medical
    Commission (mostly M.D.'s, with perhaps a few Ph.D.'s in moral
    philosophy) to dispose of such thorny, "no -win" political issues as the
    withholding of life-support systems in federally funded hospitals, or the use
    of fetal tissue for research. This is an undemocratic precedent that we
    set-not because of the scope of the delegated power, but because its
    recipient is not one of the three Branches of Government.
    Mistretta   v.   United States, 
    488 U.S. 361
    , 422 (1989) (Scalia, J., dissenting).
    Although we do not know for certain why the General Assembly delegated to the
    AMA the task of creating and revising impairment -rating standards, it is not difficult to
    imagine that it simply viewed the never-ending task of adopting new impairment -rating
    standards as the type of "no -win" political issue (in the nonpartisan sense) that Justice
    Scalia described. See DAVID B. TORREY & ANDREW E. GREENBERG, WEST'S PA. PRAC.,
    WORKERS' COMPENSATION § 6:51.70 (suggesting that the General Assembly sought to
    avoid "the thorny political issue of partial disability determination every time the AMA
    issued a new guidebook").
    [J -100A-2016 and J -100B-2016] - 
    13 A.2d 250
    , 254 (Pa. 1974) (holding that the Constitution "prohibits delegation to private
    groups of the power to make governmental appointments"); Olin Mathieson Chem.
    Corp. v. White Cross Stores, Inc., No. 6, 
    199 A.2d 266
    , 267-68 (Pa. 1964) (holding that
    the General Assembly may delegate regulatory power to "responsible governmental
    agencies," but not to private persons). Venerable opinions of the Supreme Court of the
    United States have done so as well. See e.g., Carter         v.   Carter Coal Co., 
    298 U.S. 238
    ,
    311 (1936) ("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."); A.L.A. Schechter Poultry Corp.        v.   United States, 
    295 U.S. 495
    , 553
    (1935) (remarking that the National Industrial Recovery Act, which conferred upon
    private parties the authority to promulgate rules of "fair competition," represented
    "delegation running riot") (Cardozo, J., concurring).
    That said, our precedents to date have not unequivocally supported the
    Commonwealth Court's view that the General Assembly cannot, under any set of
    circumstances, delegate authority to a private person or entity. See 
    Protz, 124 A.3d at 416
    .   Notably, this Court occasionally has suggested in non -delegation cases that the
    traditional constitutional requirements (i.e., "policy choices" and "adequate standards")
    are necessary whenever the General Assembly delegates its authority "to any other
    branch of government or to any other body or authority."             
    Blackwell, 567 A.2d at 636
    (emphasis added).       For example, this Court has held unconstitutional a law that
    required all chiropractors seeking to renew their licenses to attend either a two-day
    conference held by the Pennsylvania Chiropractic Society (a private organization), or
    another "equivalent educational conference."      State Bd. of Chiropractic 
    Exam'rs, 272 A.2d at 479
    .   In   striking down that statute on non -delegation grounds, we recited the
    [J -100A-2016 and J -100B-2016] - 14
    general rule that the General Assembly must provide adequate standards to guide and
    restrain the exercise of delegated administrative functions. 
    Id. at 481
    (quoting Chartiers
    Valley Joint 
    Sch., 211 A.2d at 492-93
    ).     Put another way, we held that the statute in
    State Board of Chiropractic Examiners was unconstitutional because it delegated
    unchecked and unrestrained authority over chiropractic continuing education, not
    because the Chiropractic Society was a private organization. 
    Id. at 481
    .
    Although we highlight this tension in our jurisprudence, we need not resolve it
    today.    As we have explained, Section 306(a.2) could not withstand constitutional
    scrutiny even if the AMA were a governmental body. 
    See supra, at 9-11
    (comparing the
    facts of this case to those in West Philadelphia Achievement Charter Elementary
    School, 
    132 A.3d 957
    ). We merely caution that our holding today should not be read as
    an endorsement or rejection of the Commonwealth Court's view that the delegation of
    authority to a private actor is per se unconstitutional. Nor do we foreclose the distinct
    possibility that a more exacting form of judicial scrutiny is warranted when the General
    Assembly vests private actors with regulatory or administrative powers.
    Having determined that the General Assembly unconstitutionally delegated
    lawmaking authority to the AMA, we now must consider whether the Commonwealth
    Court erred in remanding this case to the WCJ with instructions to apply the Fourth
    Edition of the Guides. Although the Commonwealth Court's rationale in this regard is
    not entirely clear, it appears that the court's holding was based upon the fact that the
    General Assembly, when it enacted Section 306(a.2) in 1996, could have incorporated
    by reference the Fourth Edition of the Guides.
    According to Protz, the Commonwealth Court should have struck down Section
    306(a.2) in its entirety. Protz notes that "the plain language of Section 306(a.2) contains
    no mention of the Fourth Edition of the AMA Guides; rather [it] simply mandates usage
    [J -100A-2016 and J -100B-2016] - 15
    of the 'most recent edition."          Brief for Protz at 18.    Thus, Protz concludes, "the
    Commonwealth Court essentially redrafted Section 306(a.2) in a manner that would,              in
    the court's view, pass constitutional muster."        
    Id. By contrast,
    Derry argues that the
    Commonwealth Court did not err in remanding to the WCJ with instructions to apply the
    Fourth Edition of the Guides.           Derry underscores that the Commonwealth Court
    "believed that the primary flaw in the statute was not that        it   invoked [the Guides], but
    that there was no policy review or guidance for determining whether the most 'recent'
    edition should be applied." Brief for Derry at 44. Thus, Derry believes that the Fourth
    Edition of the Guides should govern IREs moving forward.
    At the outset, 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.
    Pennsylvanians Against Gambling Expansion Fund, 
    Inc., 877 A.2d at 418
    .
    In   matters of statutory interpretation, the General Assembly has instructed us to
    assume that    it   "does not intend to violate the Constitution of the United States or of this
    Commonwealth."          1   Pa.C.S. § 1922(3).   This means that, if a statute is reasonably
    susceptible of two constructions, one that would render it of doubtful constitutionality
    and one that would not, we must adopt the latter. See Bricklayers of W. Pa. Combined
    Funds, Inc.   v.    Scott's Dev. Co., 
    90 A.3d 682
    , 692 (Pa. 2014) ("[C]ourts give statutes a
    constitutional interpretation if that is reasonably possible.").
    As a reminder, the relevant portion of Section 306(a.2) provides as follows:
    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
    [J -100A-2016 and J -100B-2016] - 16
    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."
    77 P.S. § 511.2(1) (emphasis added).
    Doubtless, most would understand this language to mean that the IRE physician
    must use the edition of the Guides that is the most recent at the time of the examination.
    See Stanish     v.    W.C.A.B. (James J. Anderson Const. Co.),             
    11 A.3d 569
    , 576 (Pa.
    Cmwlth. 2010) (holding that the "most recent edition" of the Guides is the most recent
    version in force at the time of the IRE). But, if the above language reasonably can be
    understood to mean that physicians should use the edition of the Guides that was the
    most recent edition when the General Assembly enacted Section 306(a.2) (i.e., the
    Fourth Edition), we should adopt that construction instead. Bricklayers of W. 
    Pa., supra
    .
    Ultimately, however, we cannot accept that such a reading is a reasonable one.
    It   beggars belief that the General Assembly would have used the words "most recent
    edition" when    it   really meant "Fourth Edition."    Even more telling is that the General
    Assembly, in other sections of the Workers' Compensation Act, explicitly stated that the
    Fourth Edition of the Guides should govern. See 77 P.S. § 513(8)(i) -(iii) (providing that
    the "Impairment Guides" should be used to calculate the percentage of hearing
    impairment); 77 P.S. § 25.5 (defining the term "Impairment Guides" to mean "the
    American Medical Association's Guides to the Evaluation of Permanent Impairment,
    Fourth Edition"). This is important because we generally assume that, "where a section
    of a statute contains a given provision, the omission of such a provision from a similar
    section" signifies a different legislative intent.     Fletcher   v. Pa.   Prop. & Cas. Ins. Guar.
    Ass'n, 
    985 A.2d 678
    , 684 (Pa. 2009). The upshot of this is that we must construe the
    "most recent edition" requirement to mean the most recent edition in force at the time of
    [J -100A-2016 and J -100B-2016] - 17
    the IRE, a state of affairs that, for the reasons we have stated, violates the non -
    delegation doctrine.
    Having concluded that the requirement that IRE physicians use the most recent
    version of the Guides is unconstitutional, we must decide whether it can be severed
    from the Workers' Compensation Act. The Act contains a severability provision, 77 P.S.
    §   1022, and, as a rule, the individual provisions of all statutes presumptively are
    severable.   1   Pa.C.S. § 1925.   Nevertheless, we will decline to sever when, after the
    void provisions are excised, the remainder of the statute is incapable of execution in
    accordance with the General Assembly's intent. See Stilp     v.   Commonwealth, 
    905 A.2d 918
    , 972 (Pa. 2006).
    Consistent with our holding, we must, at minimum, strike from Section 306(a.2)
    the unconstitutional "most recent edition" requirement.    As demonstrated below, such
    references are pervasive.
    (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 "Guidcs to the Evaluation of Pcrmancnt Impairmcnt."
    (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
    [J -100A-2016 and J -100B-2016] - 18
    Association "Guidcs to thc Evaluation of Permancnt 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.
    (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 fifty per centum of the
    degree of impairment defined under the most recent edition of the
    American Medical Association "Guidcs to thc Evaluation of Pcrmancnt
    Impairment."
    (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.
    77 P.S. § 511.2 (footnotes omitted).
    Although the prevalence of the offending language, of course, does not by itself
    preclude severance, excising only this language would render the remainder of Section
    306(a.2) incomprehensible. As the above provisions make clear, the Guides are what
    provide critical context to the statute's otherwise hollow phrases, such as "the degree of
    impairment."   
    Id. Without the
    aid of the Guides (or some other similar methodology),
    what could it possibly mean, for example, to say that a person has "a threshold
    impairment rating that is equal to or greater than fifty per centum impairment"? 
    Id. We view
    Section 306(a.2) as a paradigmatic example of a law containing valid
    provisions that are inseparable from void provisions.     Consequently, we must strike
    [J -100A-2016 and J -100B-2016] - 19
    Section 306(a.2), in its entirety, from the Act.            See   1    Pa.C.S. § 1925 ("[P]rovisions of
    every statute shall be severable   .   .   .   unless the court finds that the valid provisions of the
    statute are so essentially and inseparably connected with, and so depend upon, the
    void provision or application, that it cannot be presumed the General Assembly would
    have enacted the remaining valid provisions without the void one.").
    The Pennsylvania Constitution prevents the General Assembly from passing off
    to another branch or body de facto control over matters of policy.                        As we have
    explained, this is exactly what the General Assembly did in Section 306(a.2). Because
    we must enforce Article II, Section        1   without consideration of the exigencies that arise or
    "how trying our economic or social conditions become," we affirm the Commonwealth
    Court's holding that Section 306(a.2) violates the non -delegation doctrine.                   Holgate
    Bros. Co.   v.   Bashore, 
    200 A. 672
    , 675 (Pa. 1938).                 Unlike the Commonwealth Court,
    however, we hold that Section 306(a.2) is unconstitutional in its entirety.
    Order affirmed in part and reversed in part.
    Justices Todd, Donohue, Dougherty and Mundy join the opinion.
    Chief Justice Saylor files a concurring opinion.
    Justice Baer files a dissenting opinion.
    [J -100A-2016 and J -100B-2016] - 20