State News : Pennsylvania

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By Kevin L. Connors, Esquire



“We cannot solve our problems with the same thinking we used when we created them”, citing Albert Einstein.


On September 18, 2015, the Pennsylvania Commonwealth Court invalidated an Impairment Rating Evaluation that had been conducted under Section 306(a.2) of the Pennsylvania Workers’ Compensation Act, concluding that the Impairment Rating Evaluation at issue was invalid, as the IRE had been conducted under the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment, when the IRE was not conducted in reliance upon the “most recent edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment’’, when the “most recent edition” of the AMA Guides, when Section 306(a.2) of the Act was enacted, in 1996, was the Fourth Edition, not the Sixth Edition, which is the most current, or, if using English literally, is the “most recent” edition of the AMA Guides.




The case decided by the Commonwealth Court was Protz v. WCAB, decided on September 18, 2015.


The Opinion was written by the President Judge, Pellegrini.


The undisputed facts were that the Claimant was injured in 2007, that her injury involved an injury to her right knee, that she initially received temporary compensation benefits, followed by a suspension of compensation benefits when she returned to work, and a subsequent reinstatement of her workers’ compensation benefits, due to a recurrence of her work injury.


Consistent with Section 306(a.2), the Employer requested that an IRE physician be designated, with the designated IRE physician then finding that the Claimant’s Impairment Rating was 10%, in reliance upon the Sixth Edition of the AMA’s Guides to the Evaluation of Permanent Impairment.


A prior IRE of the Claimant, performed in 2009, resulted in the determination that the Claimant had not reached maximum medical improvement, with the Employer filing a Notice of Change after the Claimant’s second IRE in 2011.


In response to the Notice of Change, the Claimant filed a Petition to Review, claiming that her injury had been incorrectly described, as well as challenging the unilateral conversion of her temporary total disability benefits.


The Claimant’s Review Petition was ultimately granted, with the Workers’ Compensation Judge finding that the Employer was not entitled to automatically convert the Claimant’s total disability benefits to partial disability benefits, resulting in the Notice of Change being set aside.


The Employer then filed a Modification Petition, seeking to convert the Claimant’s temporary total disability benefits to temporary partial disability benefits.


The Employer’s Petition was ultimately granted by the Workers’ Compensation Judge, finding the Claimant’s Impairment Rating was less than 50%, resulting in the Claimant’s compensation benefits being converted from temporary total to temporary partial disability benefits.


The Claimant appealed that Decision to the Appeal Board, with the Appeal Board affirming the Judge’s Decision, finding that constitutionality challenges to Section 306(a.2) had been addressed by the Commonwealth Court inJohnston v. WCAB, 982 A.2d 1253 (Pa. Cmwlth. 2009), in which it had been determined that the Claimant’s constitutional rights to due process were not violated by IRE procedures.


The Claimant next appealed to the Commonwealth Court, challenging the constitutionality of Section 306(a.2) of the Act, arguing that it was an unconstitutional delegation of legislative authority.


In support of Claimant’s constitutional challenge, the Claimant argued that the “most recent” edition of the AMA Guides was the Fourth Edition when the Act was amended to allow IREs, and that the AMA Guides had undergone two revisions since the Fourth Edition, with each subsequent edition providing substantially different standards than those set forth in the Fourth Edition, potentially resulting in Claimants, who would have been considered more than 50% impaired under the Fourth Edition, to be less than 50% impaired under the Sixth Edition.


Arguing in support of the validity of the IRE, the Employer argued that the constitutional challenge argument had already been previously addressed by prior Court Decisions, which had decided that Section 306(a.2) did not constitute an unlawful delegation of legislative authority under Stanish v. WCAB, 11 A.3d 569 (Pa. Cmwlth. 2010), as well as underWingrove v. WCAB, 83 A.3d 270 (Pa. Cmwlth.), appeal denied, 94 A.3d 1011 (Pa. 2014).


Determining that the Legislature had failed to prescribe any intelligible standards to guide the AMA’s determination regarding the methodology being used in grading impairment under Section 306(a.2), with the Commonwealth Court finding that Section 306(a.2) was “wholly devoid of any articulations of public policy governing the AMA in this regard and of adequate standards to guide and restrain the AMA’s exercise of this delegated determination by which physicians and WCJs are bound”, the Commonwealth Court held that Section 306(a.2) only requires IREs to be conducted under the “most recent version of the AMA Guides”, in the course of determining a Claimant’s Impairment Rating, and the Court found, in reliance upon that basis alone, that Section 306(a.2) of the Act was unconstitutional, resulting in the IRE in Protz being invalidated.


Determining that Section 306(a.2) lacked a mechanism requiring governmental review of the Guides with the promulgation of supporting regulations, the Commonwealth Court determined that the delegation of Legislative/regulatory authority, in terms of which Impairment Rating Standards should be utilized, was being referred to a private party, the AMA, and not to a governmental agency, in violation of constitutional requirements.


So holding, the Commonwealth Court has issued the following ORDER:


                        “AND NOW, this 18th day of September, 2015, upon finding Section 306(a.2) of the Workers’ Compensation Act, Act of June 2, 1915, P.L. 736,as amended, 77 P.S. §511.2, added by the Act of June 24, 1996, P.L 350, an unconstitutional delegation of legislative authority insofar as it purports to adopt a new version of the American Medical Association’sGuides to the Evaluation of Permanent Impairment (Guides), the order of the Workers’ Compensation Appeal Board dated May 22, 2014, in the above-captioned case is vacated.  This matter is remanded to the Workers’ Compensation Appeal Board with instruction to remand further to the Workers’ Compensation Judge to apply the Fourth Edition of theGuides in effect when the provision was enacted in adjudicating Derry Area School District’s petition to modify benefits.


                        Jurisdiction relinquished.”

Yes, there was a Dissent, authored by Judge Simpson.  The Dissent argues that the General Assembly delegated initial Impairment Ratings to independent, Pennsylvania-licensed, board-certified, and clinically-active physicians, with the ultimate resolution of the impairment rating issues being determined by impartial Workers’ Compensation Judges after a full adjudicative process.


That is not the complete picture, but certainly one that we would be happy to continue living under.


Judge Simpson’s Dissent begins with the premise that “legislative enactments enjoy a strong presumption that they do not violate the Constitution”, underWingrove.


In reliance thereupon, Judge Simpson argues that the General Assembly delegated the initial determination of Impairment Ratings to impartial, Pennsylvania-licensed, board-certified, clinically-active physicians, and that the AMA itself does not participate in conducting Impairment Ratings under the Act.


Moreover, the General Assembly had provided numerous standards to guide Impairment Rating decisions made by physicians, of which one standard was the most recent edition of the AMA Guides.


For that reason, Judge Simpson did not believe that the legislative deference to the AMA’s professional expertise in periodically updating complex medical standards in the AMA’s Guides amounted to an unconstitutional delegation of legislative power, such that the updated editions should have been legally sufficient to support determinations made by impartial physicians conducting Impairment Rating Evaluations.


No less true, when the Employer must litigate a Modification Petition to support converting the Claimant’s disability benefit status from temporary total to temporary partial disability benefits, the Impairment Rating is simply evidence, in a proceeding ultimately determined by an impartial Workers’ Compensation Judge, concerning impairment issues.


As such, the issue of impairment is a disputed issue, subject to controverting evidence.


A second Dissenting Opinion is authored by Justice Covey, who also did not believe that the Majority had correctly invalidated the IRE inProtz, as Covey argued that the Majority’s Decision directly contradicted and effectively overruled anen banc Decision by the Pennsylvania Commonwealth Court in Pennsylvania Builders Association v. Department of Labor and Industry, 4 A.3d 215 (Pa. Cmwlth. 2010), wherein it was held that the General Assembly would not be expected to enact laws that would keep abreast of every advance in science and invention, as that is an unreasonable burden to impose upon the General Assembly.


So, what do you do now?


Well, in all likelihood, any IREs that are in the pipeline, are ones that were conducted under the Sixth Edition of the AMA’s Guides, because that is what everyone has been doing, as more recent Editions of the AMA’s Guides have come out, the “more recent” Guides have been the ones that have been used by the IRE-designated physicians to conduct IREs.


Who knew?


Well, with kudos to Claimant’s Counsel for a clever procedural argument in Protz, the presumption is that the Protz Decision will be appealed to the Pennsylvania Supreme Court, with it being expected that the Commonwealth Court will be overturned, with the Supreme Court holding that the “most recent edition” is actually what it sounds like, the last in time.


If that is the case, then invalidated IREs under Protz become validated IREs.


In the interim, the Protz Decision would at least support the argument that any IREs to be conducted prior to the Pennsylvania Supreme Court overturningProtz should be done in reliance upon the Fourth Edition, not the Sixth Edition, of the AMA’s Guides, but who actually knows?


At least for the immediate future, until this issue is resolved by the Pennsylvania Supreme Court, theProtz Decision clearly seems to mandate that the validity of an IRE is dependent upon it being conducted in reliance upon the Fourth Edition, and not the Sixth Edition, of the AMA’s Guides.


Who knows if the Fourth Edition is still even available to IRE physicians?


“Those are my principals, if you don’t like them… well, I have others”, citing Groucho Marx.


ConnorsO’Dell LLP

Trust us, we just get it!  It is trust well spent!


We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.


Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.