PENNSYLVANIA SUPREME COURT HOLDS THAT THE WORKERS’ COMPENSATION IMPAIRMENT RATING EVALUATIONS ARE UNCONSTITUTIONAL
As noted in a previous article on this blog, the Pennsylvania Supreme Court agreed to hear and decide the case of Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015), to determine whether impairment rating evaluations (IREs) were an unconstitutional delegation of the General Assembly’s legislative power by including the language that a physician performing an IRE must utilize “the most recent edition” of the AMA Guidelines. The Court was concerned that there might not be any legislative oversite of the process and also whether a private entity could be so delegated to modify one’s benefits from total disability to partial. The majority of the Commonwealth Court held that Section 306(a.2) of the Pennsylvania Workers’ Compensation Act was constitutional as long as the designated physician utilized only the 4th edition of the AMA Guidelines, which was in place at the time the legislation was enacted. That Court held only that edition could have been contemplated by the General Assembly and therefore had to be used—all other examinations under any other AMA edition would have no legal effect.
On June 20, 2017 our Supreme Court after reviewing the Commonwealth Court’s opinion in Protz, held that Section 306(a.2), the provision which gave birth to the IRE process, was an unconstitutional delegation of the General Assembly’s legislative power and the Section was voided. The Supreme Court, with only one Justice dissenting, held that there indeed was no oversight over the AMA designated process and guidelines and that the General Assembly could not have delegated to this private entity the authority to determine impairment ratings over Pennsylvania workers’ compensation claimants. Although the fallout from this pronouncement has yet to be determined, it appears from the plain language of the opinion that any IRE performed by a Pennsylvania physician using any of the AMA Guidelines in which litigation has not commenced or is ongoing, would be invalid. This means that even if an IRE has been completed and the IRE physician has opined that the injured worker is less than 50% whole body impaired, that the Employer will not be able to convert an injured workers benefits from total to partial. The one unanswered question is what will happen in cases in which litigation has ended and benefits have already been modified from total to partial disability through the IRE process. This situation will likely be argued and need to be decided next.
In either scenario, if you are an injured worker who is currently facing an Impairment Rating Examination or has had their benefits modified from total to partial as a result of an Impairment Rating Examination, you should contact a specialized, workers’ compensation attorney immediately to review your options.
