Pa. Supreme Court Decision Foreshadows 'Protz'?

With every passing month, the elephant in the room that goes by the name Protz v. Workers’ Compensation Appeal Board (Derry Area School District) grows bigger while the Commonwealth and Supreme courts continue to churn out case after case dealing with impairment rating evaluations (IREs) under Section 306(a.2) of the Workers’ Compensation Act. Of course, Protz is the Commonwealth Court decision, accepted for review by the Supreme Court, which held that Section 306(a.2) of the act ­constitutes an unconstitutional delegation of legislative authority to the American Medical Association stemming from the legislature’s direction that “the most recent edition” of the American Medical Association Guides to the Evaluation of Permanent Impairments be used in performing IREs. Given that the entire relevant section of the act could soon be declared unconstitutional, it is interesting to note the continued avoidance of the case. Nonetheless, the Supreme Court’s recent decision in Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne), No. 4 MAP 2016, addresses a very significant element of impairment ratings while specifically stating in a footnote that the validity of the use of the sixth edition is beyond the scope of the Duffey appeal. As an aside, the manner in which the court ­arrived at its holding may offer a glimpse into the deliberations on an ultimate ­decision in Protz.

To say Duffey gets into weeds not ­normally traversed in a routine attack on the validity of an IRE is an understatement. Appealing to the plain language of the act and “straightforward statutory interpretation,” the court draws a distinction between an IRE doctor rating a particular compensable injury and what it terms the “plain directive under the statute” to rate instead the impairments deriving from that injury. Consistent with the court’s focus, the opinion chides both the claimant and one of the dissenting judges for conflating the two concepts and even winsomely notes that “such confusion between the terms ‘injury’ and ‘impairment’ appears to be quite common.” Indeed, the distinction is lost on the Commonwealth Court and the employer, as well.