After the Pennsylvania Supreme Court’s landmark decision in Protz v. WCAB, (Derry Area School District), 161 A.3d 827 (Pa. 2017), it appears 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. But for cases where litigation has ended and benefits have already been modified from total to partial disability through the IRE process, the question remains unanswered.
On June 20, 2017, in the Protz case, the Pa Supreme Court declared that the entirety of Section 306(a.2) of the Workers’ Compensation Act is an unconstitutional power. This Court used a technicality to overturn a law that existed for 21 years on the premise that it was a poorly drafted law because there was no oversight over the AMA designated process and guidelines and explained that the General Assembly was not permitted to delegate authority to the AMA, a private entity, to determine impairment ratings over Pennsylvania workers’ compensation claimants.
On October 2, 2017, the Pennsylvania legislature introduced Bill 1840, in an effort to correct the problem. This bill proposes reinstate the 104-week permanent disability marker for when an insurer can request an impairment rating evaluation. This new legislation provides that physicians performing impairment rating evaluations must utilize the Sixth Edition of the American Medical Association’s Guides as the prescribed guide. However, it may be awhile before the new law is passed.
In the meantime, the Pa Supreme Court has declined to address the issue and instead, is sending cases back to the Commonwealth Court to determine whether its own decision in Protz applies retroactively.
On January 18, 2018, the Supreme Court granted a petition for allowance of appeal in Gillespie v. WCAB. In this case, the claimant had unsuccessfully attempted to reopen a claim for temporary total disability benefits (TTD) that had been modified to partial disability eight years earlier via the IRE process. This order vacated a May 2017, unreported decision of the Commonwealth Court and remanded it back to that court to determine whether the Supreme Court’s own decision in Protz applies retroactively.
It seems evident that the court is hoping for an intervening legislative fix that would obviate the need to decide the issue. Hopefully this will happen soon. We will keep you informed with the latest updates on this issue. Stay tuned