Section 306(a.2) requires that a claimant submit to an Impairment Rating Evaluation (IRE) after the expiration of the claimant’s receipt of 104 weeks of temporary total disability (TTD) benefits. The IRE provides a mechanism for adjusting a claimant’s status from total to partial disability. The Act requires that the amount of impairment be determined pursuant to the most recent edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment. 77 P.S.§ 511.2(2).

In Protz, the claimant submitted to an IRE, and the sixth edition (“most recent”) of the Guides was used by the IRE physician in rating the claimant’s permanent impairment. The employer sought to modify the claimant’s benefit status to partial based on the impairment rating of less than 50% by filing a Modification Petition, which the judge granted. The claimant appealed, arguing that Section 306(a.2) of the Act constitutes an “unconstitutional delegation of authority by the state legislature.” According to the claimant, the state legislature violated Article II Section I of the Pennsylvania Constitution when it mandated that the amount of impairment be determined pursuant to “the most recent edition of the Guides.” The Board affirmed the Judge’s decision, citing two prior Commonwealth Court decisions. In her appeal to the Commonwealth Court, the claimant argued that the Section 306(a.2) gives the AMA rather than the General Assembly authority to establish the criteria under which a claimant is to be determined partially or totally disabled. Since the section of the Act was enacted, the AMA Guides have undergone two significant revisions that set forth substantially different standards than the fourth edition, which was the “most recent edition” when the section was originally enacted.

The Commonwealth Court agreed with the claimant’s argument, stating that only the General Assembly can make laws and that the General Assembly cannot constitutionally delegate the power to make laws to any other branch of the government or to any other body or authority, such as the American Medical Association (AMA). The Commonwealth Court deemed Section 306(a.2) to be an unconstitutional delegation of legislative authority due to the fact that it essentially adopts a new version of the AMA’s Guides as new editions are published. The Commonwealth Court remanded the case to the Board with instructions to remand the case to the judge to apply the fourth edition of the Guides to determine the claimant’s impairment rating.

As of the time of this publication, a Petition for Allowance of Appeal has not yet been filed with the Pennsylvania Supreme Court. However, the claimant’s attorney has advised that both parties intend to file such petitions, which should be granted due to the constitutional issue. The claimant’s argument is that the Commonwealth Court should not have remanded it for the fourth edition of the Guides to be used in rating the claimant’s impairment. The defense will certainly argue that the section is constitutional as written. Alternatively, the defense will argue that the fourth edition of the Guides should be used in order to maintain a basis for ongoing IREs. It is possible that the Supreme Court will deem the entire section to be unconstitutional, invalidating all IREs regardless of what edition of the Guides was used.

What It Means to You

The Commonwealth Court’s ruling in Protz is significant. Arguably, all IREs performed since 2000, when the fifth edition of the Guides was published, are invalid. Although the Supreme Court will certainly hear an appeal, there is much confusion about what to do until a final determination is made.

We should expect Review Petitions to be filed by the claimant’s attorneys seeking to set aside Notices of Change in Disability Status, Supplemental Agreements, and even Orders that modified their client’s benefits status from total to partial based on an IRE that was conducted pursuant to either the fifth or sixth editions of the Guides. Litigation will likely be stayed pending the Supreme Court’s ruling. However, the most critical question is what to do in cases where a claimant is at or over the 104-week threshold? At this time, the best recommendation for this difficult question is to request that the designated IRE physician provide a rating consistent with both the fourth and sixth editions of the Guides. If the physician does so, you will be ensured a valid rating whether the Pennsylvania Supreme Court affirms the Commonwealth Court or deems that the section is constitutional as enacted. Unfortunately, this will do nothing though if the Supreme Court takes it one step further and declares that the fourth edition of the Guides cannot be used.

The issue with asking an IRE physician to rate a claimant under the fourth edition of the Guides involves the Bureau regulations regarding the physician’s qualifications to perform IREs. Section 123.103 sets forth a list of criteria that IRE physicians need to meet to conduct Impairment Rating Evaluations. Many may recall the confusion that arose during the transition between the fifth and sixth editions of the Guides concerning the fact that some physicians were not certified to conduct IREs pursuant to the sixth edition immediately upon its publication. We should expect all of these arguments. In sum, the Commonwealth Court’s ruling in Protz sets up a significant road block in an already difficult to navigate process of converting a claimant’s benefit status from total to partial in order to cap indemnity exposure at 500 weeks.

We strongly encourage clients to contact Cipriani & Werner with questions on individual cases to develop the most cost-effective, legally sufficient way of proceeding with an IRE during this upheaval.