PA Workers’ Comp News Alert—Decision Regarding Impairment Rating Evaluations
WORKERS’ COMPENSATION ALERT:
Please note the Pennsylvania Workers’ Compensation news alert below on a recent Decision regarding Impairment Rating Evaluations (IREs) which will impact handling of workers’ compensation cases in Pennsylvania.
Protz v. Workers’ Compensation Appeal Board (Derry Area School District)
On September 18, 2015, the Commonwealth Court of Pennsylvania issued a 4-3 decision in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), which held that the use of the 5th and 6th Editions of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment to determine an injured worker’s level of impairment under the Pennsylvania Workers’ Compensation Act (PA WC Act) is an unconstitutional delegation of legislative authority. The Commonwealth Court decided that an Impairment Rating Evaluation (IRE) under Section 306(a.2) of the PA WC Act must utilize the 4th Edition of the AMA Guides which is the latest edition approved by the General Assembly. In summary, the Commonwealth Court held that IREs are unconstitutional if they are or were performed using any edition of the AMA Guides to the Evaluation of Permanent Impairment other than the 4th Edition.
By way of brief background, when the PA WC Act was amended in 1996 to include Section 306(a.2), the 4th Edition of the AMA Guides was in effect. Under Section 306(a.2) of the PA WC Act, an employer may request an employee to submit to an IRE in order to attempt to reduce future exposure to a period of 500 weeks of partial disability benefits. The Act provides 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. Since that time, the AMA Guides have undergone changes and the most recent edition is the 6th Edition. The Commonwealth Court analyzed Article II, Section 1 of the Pennsylvania Constitution which vests legislative power in our General Assembly. The Court decided that the legislature cannot delegate legislative authority to a private party, the AMA, since the legislature would not review or approve each new edition of the AMA Guides. As such, the Court declared that Section 306(a.2) is unconstitutional.
The Commonwealth Court’s decision will impact any Petition to Modify compensation benefits pending before a workers’ compensation judge based on an IRE. A request should be issued to the IRE physician to provide an additional IRE Determination and rating utilizing the 4th Edition of the AMA Guides.
The decision will also impact any cases in which an IRE has been requested but not yet performed. In this situation, a request should be made to the IRE physician to confirm he/she is trained and certified to perform IREs under the 4th Edition of the AMA Guides. A specific request should also be made to the IRE physician to provide two (2) IRE ratings: one under the 4th Edition and one under the 6th Edition in the event Protz eventually gets reversed by the Supreme Court of Pennsylvania.
Furthermore, the decision may also affect cases in which a claimant’s compensation benefit status has been changed from total disability to partial disability based upon IRE ratings issued under either the 5th Edition or 6th Edition of the AMA Guides. It is anticipated that claimant’s attorneys will most likely proceed with the filing of a Petition to Review or Petition to Reinstate or Petition to Modify compensation benefits to resume payment of total disability benefits.
If you have any questions about this announcement, please don’t hesitate to contact us.
Zachary Rubinich, Esquire
Partner, Workers’ Compensation Section
RAWLE & HENDERSON LLP
1339 Chestnut St., 16th Floor
Philadelphia, PA 19107