As addressed in this space a few months ago, the Commonwealth Court’s decision in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), No. 1024 C.D. 2014 (Pa. Cmwlth. 2015), tackled a phrase in Section 306(a.2) of the Workers’ Compensation Act that calls for reliance on “the most recent edition” of the American Medical Association Guides to the Evaluation of Permanent Impairments in performing impairment rating evaluation (IREs). As is well known, the AMA guides are used to convert an injured worker’s benefits from total to partial disability should the IRE conclude a claimant’s “whole body impairment” is less than 50 percent. Given the rarity of a whole-body impairment in excess of 50 percent, invalidating IREs on grounds is crucial to the claimants’ practice.
Protz, which was a 4-3 majority decision, held that Section 306(a.2) of the act constitutes an unconstitutional delegation of legislative authority to the AMA, which is a private party. The court found that the legislature’s appeal to “the most recent version” of the AMA guides created a system that would allow the AMA to dictate an injured workers’ entitlement to workers’ compensation benefits with no opportunity for legislative review. Given that the AMA has, in fact, changed the standard twice since the Pennsylvania legislature inserted an appeal to the AMA guides in the act, via Act 57 of 1996, the damage to injured workers is real and no longer theoretical, as it once was. When Act 57 was enacted, the Fourth Edition of the AMA guides was in use. The Fifth and Sixth editions have since replaced it and have imposed numerous, substantive changes that negatively affect the injured worker.
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