Over 20 years after Section 306(a.2) of the Pennsylvania Workers’ Compensation Act was enacted, employers will no longer be able to limit partial disability benefits to 500 weeks based on an Impairment Rating Evaluation (IRE). On June 20, 2017, the Pennsylvania Supreme Court issued its opinion in Protz v. W.C.A.B. (Derry Area School District), holding that Section 306(a.2) of the Act, which establishes the procedure to modify an injured worker’s benefits from total to partial disability by way of an IRE, is unconstitutional. The Court determined that the General Assembly unconstitutionally delegated lawmaking authority to the AMA by requiring physicians to perform IREs under the “most recent edition” of the AMA’s “Guides to the Evaluation of Permanent Impairment.” It also found that the Legislature did not intend that the Fourth Edition of the Guides, which was the most recent edition in effect when Section 306(a.2) was enacted, was to be used. As a result, the Court struck Section 306(a.2) in its entirety and reversed the Commonwealth Court’s Order, which remanded the case to the Workers’ Compensation Judge (WCJ) and instructed the WCJ to apply the Fourth Edition of the Guides.
Questions remain regarding the validity of previously-performed IREs and the resulting change in status under various circumstances such as where:
- a timely IRE request was made, the employee’s status was changed without litigation, and the 500-week period for the payment of partial disability benefits has not run;
- a timely IRE request was made, the employee’s status was changed without litigation and the 500-week period for the payment of partial disability benefits has expired;
- a timely IRE request was made, a challenge was filed within 60 days, the WCJ issued a decision changing the employee’s status to partial disability, and, during the litigation, the injured worker did not raise either the non-delegation issue or any other constitutional issue; and
- a Petition to Modify based on an IRE was litigated, the WCJ issued a decision changing the employee’s status to partial disability, and during the litigation, the injured worker did not raise either the non-delegation issue or any other constitutional issue.
Will the Courts ultimately rule that every injured worker whose status was changed from total to partial disability based on an IRE, except perhaps those who resolved their claims by way of Compromise and Release Agreements, is entitled to reinstatement to total disability? Are there circumstances under which the Court may find that Protz is not applicable because the constitutional challenge was waived? See Winchilla v. W.C.A.B. (Nexstar Broadcasting), 126 A.3d 364 (Pa. Cmwlth. 2015), appeal denied 130 A.3d 1293 (Pa. 2015) (raising non-specific constitutional challenge to Section 306(a.2) while litigating a Petition to Modify, but failing to assert that the IRE provisions of the Act unconstitutionally delegated legislative authority to the AMA waived the unconstitutional delegation argument).
What, if anything, the Legislature will do in response to the Court’s opinion in Protz is also a question. The opinion leaves open the possibility that a statutory provision naming the specific edition of the Guides to be used in conducting an IRE could withstand constitutional scrutiny. In the meantime, absent the availability of work with the employer within the injured employees’ physical and vocational capabilities, employers will be required to pursue earning power assessments in an attempt to limit their exposure for workers’ compensation benefits.
This Law Blog was written by Barbara L. Hollenbach, Esquire, and Ellen J. Kaska, Esquire. If you have any questions about the information contained in this alert or any other questions related to workers’ compensation law, please feel free to contact them at firstname.lastname@example.org or email@example.com.