As battles over the retroactivity of the Pennsylvania Supreme Court's landmark workers' compensation decision in Protz v. Workers' Compensation Appeal Board (Derry Area School District) continue, the future of impairment rating evaluations is starting to take shape.

A three-judge panel of the Commonwealth Court on Oct. 11 upheld a legislative change to the Workers' Compensation Act designed to cure the constitutional defect in the statute that was identified in the Protz case.

The Supreme Court's 2017 ruling in the Protz case (referred to as "Protz II" because it was decided on its second trip up to the appellate courts) partially reversed a Commonwealth Court decision by invalidating in its entirety Section 306(a.2) of the Workers' Compensation Act, which required doctors performing IREs of claimants to rely on "the most recent edition" of the American Medical Association Impairment Rating Guides. The justices found that portion of the statute unconstitutionally delegated the legislature's lawmaking authority to the AMA. Consequently, IREs performed pursuant to those guidelines were unconstitutional.

The decision was hailed as the most important development in Pennsylvania workers' compensation law in decades. Shortly after that decision came down, the Pennsylvania Bureau of Workers' Compensation issued a statement saying that, "effective immediately, [it] will no longer designate physicians to perform impairment rating evaluations."

But in October 2018, Gov. Tom Wolf signed into law Section 306(a.3), which repealed Section 306(a.2) and now specifically requires doctors performing IREs to rely on the Sixth Edition, second printing of the AMA guidelines.

The Pennsylvania AFL-CIO filed a challenge to Section 306(a.3), arguing that it was still an unconstitutional delegation of the legislature's lawmaking power to the AMA.

But the Commonwealth Court, deciding the case on preliminary objections by the state, Wolf and the Department of Labor and Industry,  disagreed.

The Commonwealth Court panel noted that the Protz II court specifically took issue with Section 306(a.2)'s provision requiring doctors to rely on whatever was the most recent edition of the AMA guidelines at any given time, because it "did not include any standards or basic policy choices to restrain the AMA's future enactment of the guides, which would then become the law by which IREs would be performed."

"This left the AMA with the ability to 'revise the guides once every 10 years or once every 10 weeks,' which 'gave the AMA de facto, unfettered control over a formula that ultimately will determine whether a claimant's partial disability benefits will cease after 500 weeks,'" Judge Renee Cohn Jubelirer wrote for the Commonwealth Court panel, quoting from the Supreme Court's Protz II ruling.

But Jubelirer also noted that Protz II specifically stated that "'the non-delegation doctrine does not prevent the General Assembly from adopting as its own a particular set of standards which already are in existence at the time of adoption.'"

"That is what the General Assembly did here—it adopted the Sixth Edition, second printing, which PA AFL-CIO admits was in existence when Section 306(a.3) was enacted, 'as its own,'" Jubelirer said. "When such an adoption occurs, the General Assembly is exercising its legislative and policy making authority by deciding that it is those particular standards that will become the law of this commonwealth. It is not delegating its authority to legislate. The General Assembly made a policy decision regarding the standards that will apply to IREs in the commonwealth going forward. PA AFL-CIO may disagree with that policy decision, but that does not make that decision an improper delegation of the General Assembly's legislative authority."

Jubelirer was joined by Judges Patricia McCullough and Christine Fizzano Cannon.

Counsel for the plaintiffs, Irwin Aronson of Willig, Williams & Davidson in Harrisburg, declined to comment on the decision.

A spokesperson for the Department of Labor and Industry could not be reached.