Commonwealth Court Holds Impairment Rating Evaluations Unconstitutional If AMA Guides Beyond 4th Edition Are Used

09.18.15

Category: Pennsylvania

In an unexpected decision handed down today, the Commonwealth Court in Protz v WCAB (Derry Area School District), held that Impairment Rating Evaluations (IREs) are unconstitutional if they were performed using any edition of the AMA Guides of Permanent Impairment beyond the 4th Edition.

The facts of this case are straightforward. The employee sustained an injury in 2007 to her right knee. She went out of work and returned to work in early 2008, but then went out of work again and received total disability benefits. In October 2011, after the employee had received over 104 weeks of TTD, her employer sent her for an IRE. The IRE physician utilized the most recent edition of the AMA Guides, the 6th edition (as mandated by Section 306 (a.2) of the PA Workers' Compensation Act), and found a 10 percent permanent impairment. The employer filed a Modification Petition which the Workers' Compensation Judge (WCJ) granted, reducing the employee's benefits from total disability to partial disability, effective October 2011 because the employee's total body impairment was less than 50 percent. The employee appealed, arguing that Section 306 (a.2) of the Act constituted an "unconstitutional delegation of authority by the state legislature." The Workers' Compensation Appeal Board (WCAB) affirmed citing multiple cases where the Commonwealth Court had found Section 306 (a.2) to be constitutional. The employee appealed to the Commonwealth Court, raising the same constitutional argument.

The Commonwealth Court decided today (September 18th) that although Section 306 (a.2) of the Act - the IRE Section, is constitutional, the portion of Section 306 (a.2) of the Act that requires the IRE doctor to use the most recent of the AMA Guides, is unconstitutional. That is, the Commonwealth Court accepted the employee's argument that the periodic revisions to the AMA Guides of Permanent Impairment can result in different standards and, as such, could cause an employee who was greater than 50 percent impaired under the 4th Edition (and entitled to ongoing TTD) to be deemed less than 50 percent impaired under a later edition (and thus placed on the 500 week partial). The Court found that this was an improper delegation of authority to a private party (the AMA) and hence unconstitutional.

Comment: How does this affect you, your cases and your exposure? There is no question that all IREs that used an edition of the AMA Guides beyond the 4th Edition are invalid by the Protz decision. This, however, does not end the discussion. The Commonwealth Court in Protz remanded the case to the WCJ to apply the 4th Edition of the AMA Guides. If the utilization of the 4th Edition of the AMA Guides in Protz results in a finding of less than 50 percent, then the employee will remain on partial disability. If the use of the 4th Edition of the AMA Guides results in a finding of 50 percent or greater, then TTD will continue. From a practical standpoint, any difference in the Guides from the 4th Edition until now should be extremely minor and should only affect a few cases in the past, but it could affect cases that are in the pipeline.

We would recommend the following:

  • If you changed the character of the employee's benefits from total to partial based on a properly filed Notice of Change in Status Form, and the employee did not challenge this within 60 days, then we believe the employee needs to get an IRE of greater than 50 percent to obtain total disability. We would not recommend doing anything in this context.
  • If you obtained a modification of benefits from total disability to partial disability from a WCJ decision, and that decision was not appealed, we believe the issue has been waived and you don't need to do anything in this situation either.
  • If you have an IRE that has been performed but you haven't taken any action on it yet, then you need to have the IRE doctor give you an addendum based on the 4th Edition of the AMA Guides.
  • If you have an IRE that is about to be performed, contact the doctor and explain this case to him or her so that the doctor uses the 4th Edition of the AMA Guides. Have the doctor also provide an analysis based on the most recent edition of the AMA Guides, just in case this decision gets reversed by the PA Supreme Court.

Please feel free to call us with any questions regarding this case, how it affects any of your cases, or any Pennsylvania workers' compensation questions.

For more information, please contact David Greene at dgreene@wglaw.com or 215.972.7910 or Peter Weber at pweber@wglaw.com or 215.972.7901.
 

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