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Section of PA Workers Comp Act Found Unconstitutional

June 27, 2017

By John W. Zatkos, Jr., Esq.

Pennsylvania Supreme Court rules section of the Workers’ Compensation Act unconstitutional regarding IREs and strikes it from the Act

A recent PA Supreme Court Ruling just ruled a section of the Workers’ Compensation Act unconstitutional. Under Section 306(a.2), employers are allowed to demand that injured workers undergo an impairment rating evaluation (IRE), where a physician determines the “degree of impairment” that the work injury has caused. Protz v. WCAB (Derry Area School District) was appealed all the way to the PA Supreme Court, where this clause was deemed unconstitutional. It has not been determined yet if this decision will be retroactive.

In Protz v. WCAB (Derry Area School District), Mary Ann Protz sustained a knee injury on the job. Four years later, her employer asked her to undergo an IRE. The physician assigned a 10% impairment rating. Under the Workers’ Compensation Act, “’a threshold impairment rating that is equal to or greater than fifty per centrum’ is presumed to be totally disabled.” Because Ms. Protz rating was under 50%, the employer filed a modification petition to label Ms. Protz partially disabled rather than totally disabled.

Ms. Protz appealed the modification on the grounds that “the General Assembly unconstitutionally delegated to the American Medical Association (AMA) the authority to establish criteria for evaluating permanent injury.” Article II, Section 1 of the Pennsylvania Constitution states that “[t]he legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” The Supreme Court’s decision recognizes “the tenet that the General Assembly cannot delegate ‘to any other branch of government or to any other body or authority’ the power to make law.” By giving the AMA, without any parameters to check or curtail their authority, the Court found this delegation in violation of the Constitution. They wrote:

The General Assembly did not favor any particular policies relative to the Guides’ methodology for grading impairments, nor did it prescribe any standards to guide and restrain the AMA’s discretion to create such a methodology. Without any parameters cabining its authority, the AMA would be free to: (1) concoct a formula that yields impairment ratings which are so inflated that virtually every claimant would be deemed to be at least 50% impaired; or (2) draft a version of the Guides guaranteed to yield impairment ratings so miniscule that almost no one who undergoes an IRE clears the 50% threshold.; or (3) do anything in between those two extremes. It could even create distinct criteria to be applied only to claimants of a particular race, gender, or nationality.

The Court was also troubled that the General Assembly did not require the AMA to hold hearings, accept public comments, and that the doctors who drafted the Guides are not public servants who can be disciplined or removed.

Based upon these findings, Section 306(a.2) was found unconstitutional and stricken from the Workers’ Compensation Act.

What does this mean? If you are an injured worker and had your benefits modified due to an IRE, you may want to contact your Workers’ Compensation attorney to see how this court decision affects your entitlement to benefits.

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