Amendment to Workers' Comp Act Unlawfully Delegated Power

Beginning in 2003, there have been a number of significant appellate decisions dealing with Section 306(a.2) of the Workers’ Compensation Act. The section, added as part of the 1996 Act 57 reforms to the act, created the impairment rating evaluation (IRE), which can be used by the employer to convert the status of a claimant’s benefits from total to partial disability in nature should the IRE find an injured worker’s “whole body impairment” to be less than 50 percent, according to the most recent edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment.” Everything from the automatic conversion element of the section to the proper definition of “maximum medical improvement” to the competency of the IRE physician has been addressed. The various, novel attacks to the section have been necessary since in almost every instance an IRE results in a whole-body impairment of less than 50 percent and therefore places a 500-week cap on the employer’s exposure for indemnity benefits. Invalidating IREs on grounds other than the percentage of whole-body impairment has been the only real successful avenue for injured workers.

In the spirit of extraneous attacks on the IRE, no case has been more significant to the injured worker than September’s Commonwealth Court decision in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), No. 1024 C.D. 2014 (Pa. Cmwlth. 2015), which finally addressed an offending phrase of Section 306(a.2): “the most recent edition” of the AMA guides. The claimants’ bar has been arguing for years that Section 306(a.2) of the act was an unconstitutional delegation of legislative power to the American Medical Association under Article II, Section I of the Pennsylvania Constitution. Until now, the courts have never really decided the matter on the merits. This month, in a 4-3 majority decision of the Commonwealth Court sitting en banc, the Protz court held that Section 306(a.2) of the act does, in fact, constitute an unconstitutional delegation of legislative authority to a private party: the AMA. Essentially, in directing that IRE doctors should use the most recent version of the AMA guides, the Pennsylvania Legislature subjected injured workers to the latest whims of the AMA with no opportunity for legislative review. For almost 20 years, the AMA has been charged with defining the criteria for Pennsylvania injured workers’ whole-body impairment ratings.