Commonwealth Court Finds Current Impairment Rating Evaluation Process Unconstitutional

An Impairment Rating Evaluation (IRE) is a process where the employer asks an injured worker to be “rated” to determine their percentage of whole-body impairment based on the AMA Guides (American Medical Association’s Guides to Permanent Impairment). In order to be rated, an injured worker must first be at “maximum medical improvement” (MMI). This means that the work related injury or condition is not likely to improve or worsen in the future, with or, without treatment. A doctor must decide whether an injured worker is at MMI, and if so, the current state of the law required the use of the 6^th edition of the AMA Guides to determine whether the injured worker is 50% or more impaired. If the injured worker is found to be less than 50% impaired (as opposed to 50% or more which keeps the status of the benefit at total disability) after an IRE examination based on the AMA Guides, then the status of the worker’s wage loss benefit changes from total to partial disability. The significance of this status change is that there is a 500 week cap on partial disability benefits which means you can only receive a maximum of 500 weeks of partial disability benefits and, in some situations, less than that. There is no cap on total disability benefits. An injured worker theoretically can receive total disability benefits for the rest of their life if the Employer is not able to prove that the worker fully recovered from their work injury or, recovered enough to be able to return to some kind of work. If the worker is given a whole-body impairment rating of 49% or below using the AMA Guides, their total disability benefit converts to partial disability and the injured worker is only entitled to receive a maximum of 500 weeks of additional wage loss benefits and, in some situations, less than that. The current or, 6^th edition of the AMA Guides generally favors employers.

An injured worker recently challenged the constitutionality of the IRE process. Protz v. WCAB (Derry Area School District), decided September 18, 2015, involved an IRE based on the 6th edition of the AMA Guides. The claimant argued that her IRE determination was unconstitutional because it improperly delegated legislative powers to a private entity, i.e., the AMA (American Medical Association) do to the fact that her IRE status change was based on the use of the 6^th edition of the AMA Guides which was not approved by the state legislature. She specifically cited Article II Section 1 of the PA State Constitution. The Commonwealth Court agreed. The Court held that the legislature has given carte blanche to a private entity, the AMA, to make determinations on how to rate an injured worker for purposes of an IRE once they are found to be at MMI. When the Act was amended in 1996 and IRE determinations were added, the General Assembly specifically adopted the 4th Edition of the AMA Guides to determine an injured worker’s whole-body impairment rating. However, the General Assembly has yet to review and specifically adopt either the 5th or 6th editions of the AMA Guides that have surfaced since then. Because the General Assembly has not given specific direction on how to calculate the impairment rating under the current or updated versions of the Guides and, because it gave a private entity (AMA) complete control over establishing the standard (the Guides) by which the status of an injured worker’s wage loss benefits could be changed, there is no protections to prevent the AMA from developing future editions of the Guides that are biased toward the injured worker. Section 306(a.2) of the Workers’ Compensation Act merely provides that doctors performing IRE’s must use the “most recent” edition of the AMA Guides. No further direction is given by the legislature in reaching this determination which violates the Pa State Constitution.

It remains to be seen how this decision will impact IRE’s that were already completed using the 5^th and 6^th editions of the AMA Guides. The Commonwealth Court remanded the Protz case back to the Workers’ compensation Judge to decide the issue of the claimant’s whole-body impairment for purposes of establishing an IRE rating under the Act, using the 4^th edition of the AMA Guides only. As it stands, this is the only edition of the Guides that the legislature has specifically approved its use.

http://www.pacourts.us/assets/opinions/Commonwealth/out/1024CD14_9-18-15.pdf?cb=2