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COMMONWEALTH COURT DECLARES WC ACT’S IMPAIRMENT RATING PROVISIONS UNCONSTITUTIONAL UNLESS THE FOURTH EDITION OF THE AMA GUIDES IS UTILIZED.

On September 18, 2015, the Commonwealth Court issued a Decision which significantly impacts the Impairment Rating Evaluation (IRE) process. Protz v. WCAB (Derry Area School District),__ .3d__(Pa. Cmwlth 2015), In Protz, the Court vacated the Decision of the Board which had affirmed modification of Claimant’s benefit status based on an IRE finding ten percent impairment rating under the Sixth Edition (most recent) AMA Guides. The Court remanded the case to the Board with instruction to remand to the WCJ to apply the Fourth Edition of the AMA Guides in adjudicating the same.

The Court explained that the IRE provisions are unconstitutional because it is an unlawful delegation of legislative power under Article II, Section 1 of the PA Constitution. The crux of the Decision is the Court’s reasoning that because the IRE provisions of the Act require an IRE to be determined pursuant to the most recent edition of the AMA Guides, the AMA changes the standards by which partial disability is determined. The Court noted this Section also lacks a mechanism requiring governmental review of the Guides. It distinguished the present case from Pennsylvania Builders Association by the fact that the law in that case adopting the code set forth by another agency required the DLA to review the regulations every year the codes were modified and established standards for doing so.

Claimant argued that the current Sixth Edition of the Guides provide substantially different standards than those set forth in the Fourth Edition, thereby causing some Claimants who would have been considered more than fifty percent impaired under the Fourth Edition to be less than fifty percent impaired under the Sixth Edition. However, it does not appear that Claimant submitted any medical evidence in support of such allegation.

As noted above, the Protz Decision was decided on 9/18/15 and thus the Employer may file a Petition for Allowance of Appeal anytime through 10/18/15. Whether the PA Supreme Court allows the Appeal to proceed is a matter of “sound judicial discretion.” However, the Supreme Court may grant a Petition for Allowance of Appeal when: the holding of the Commonwealth Court conflicts with another Commonwealth Court precedent or an opinion of the Supreme Court; the question presented is one of first impression; the question presented is one of such substantial public importance as to require prompt and definitive resolution by the Pennsylvania Supreme Court; and/ or the issue involves the constitutionality of a Statute of the Commonwealth.

ANALYSES: Claimant made a persuasive argument in Protz. However, this is the type of issue that can be reviewed by the Pennsylvania Supreme Court and the Employer can make several good arguments on appeal. Thus, it is certainly plausible that the Protz Decision could be reversed.

Ironically, this may be much ado about nothing. Practically speaking, we do not believe that the use of the Sixth Edition vs. Fourth Edition of the AMA Guides significantly impacts an Impairment Rating Evaluation (IRE) determination. In our experience, we have not seen that utilization of the Sixth Edition vs. Fourth Edition has changed whether or not a Claimant meets the fifty percent impairment threshold.

RECOMMENDATIONS: In light of this Decision, we recommend that any new IRE be conducted under both the Fourth and most recent (currently Sixth) Edition of the AMA Guides.

If a physician is unable or unwilling to conduct an IRE under the Fourth Edition of the Guides, we recommend that you schedule an additional IRE. In this regard the Act requires an employee to submit to an IRE exam with the caveat that employee shall not be required to submit to more than two such exams during a 12- month period. However, case law does allow the Employer to obtain a second IRE within a 12-month period without showing any change in the employee’s condition. Lewis v. WCAB (WalMart Stores, Inc.), 856 A.2d 313 (Pa Cmwlth 2004).

If an IRE has already been conducted under only the Sixth Edition and you have not yet changed Claimant’s disability status, we do not recommend that you file Form LIBC-764. Notice of Change of Workers’ Compensation Disability Status. Instead, we recommend that you ask the IRE physician whether he/she can provide an opinion under the Fourth Edition . If he can not do so, we again recommend that you schedule an additional IRE for this purpose.

If an IRE issue is already in litigation, we will give you advice specific to your case.

As always, we are available to address any questions or specific concerns that you may have based on your current caseload.