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Important IRE Decision Requiring IMMEDIATE Consideration

September 21, 2015

On Friday 9/18 in a 4 to 3 decision, the Pa. Commonwealth Court has declared that any impairment rating done under the 5th or 6th editions of the AMA guides is invalid, as said exams were unconstitutional. President Judge Pellegrini writing for the majority ruled that the legislature unconstitutionally delegated authority to determine a workers' compensation status to a non-governmental entity, the AMA. The decision in Mary Ann Protz v. WCAB, (Derry Area School District) No. 1024 C.D. 2014 struck down and reversed a ruling by the WCJ and the WCAB that an impairment rating of 10% done under the AMA 6th edition entitled the employer to modify claimant's benefits to partial. The Court found that the language of Section 306(a.2)  which stated that impairment ratings are to be done "under the most recent edition of the AMA guides" was an unconstitutional delegation of legislative authority to a non-government entity. The Court found that since the Legislature was able to review and know the potential outcome of the change in the law as it related to the AMA guides 4th Edition which were in effect when Act 57 was passed in 1996, that the use of the 4th Edition was constitutional.   However, because the legislature could not know what effect future editions of the guides could do to an Employee's right to benefits, the legislature could not give up its constitutional duty to legislate an employee's right to benefits to a third party, non-governmental entity.  The Order of the Court remanded the case to the WCAB to “remand the case to the WCJ with instructions to apply the 4th Edition of the AMA guides in adjudicating the same."  In other words, the defendant will have to get the IRE physician to redo his report to reflect that he calculated the rating based on the 4th Edition.   The effects of the ruling we see as follows:

 

1.      If you have pending before a WCJ a petition to Modify to partial based on an IRE, (as in Gardner, the IRE was not requested during the 60 day window so Employer had to petition to modify) the Judge will have to order that the exam report be redone, and the rating calculated under the 4th edition.

 

2.      If you have modified someone automatically based on an IRE, and claimant has filed a petition to review that, the Judge will have to order the exam be recalculated under the 4th Edition.

 

3.      If a modification has been done under the 6th or 5th Edition, and either not challenged, or a Judge affirmed the rating and the modification, and the case was not appealed, the following scenarios exist:

 

a.      Claimants could file Petitions to reinstate or review, seeking to have their partial status overturned and returned to total as having been done unconstitutionally under the 5th or 6th editions.

 

b.      The defense would be if they did not object to the modification, or did not raise and preserve the constitutional argument, they are barred from challenging it now.

 

4.      As for any claims where you have requested an IRE and it has not been done yet, you should request the examiner do the calculations based on both the 4th and 6th editions.

 

5.      As for any cases where the employee is approaching the 104 week mark, by all means continue to file requests during the 60 day window for the appointment of an IRE physician to preserve your rights under the Act.

 

We note the decision was 4-3, and the dissenting Judges did issue 2 dissenting opinions which lay out strong counter arguments. We certainly hope the losing party will petition the Pa. Supreme Court for an allowance of appeal in the matter.

 

Finally, this may all be a tempest in a teapot A 2010 study by the AMA comparing the 4th,  5th and 6th editions, and the average impairment rating under each concludes that the statistical difference as to ratings for a variety of diagnoses between the 6th, 5th and 4th editions was minimal. A copy of this study can be found at http://www.legis.nd.gov/assembly/61-2009/docs/pdf/wc091510appendixb.pdf. Only in cases where the claimant was close to 50% under the 6th edition would the use of the 4th edition possibly make a difference in the ultimate outcome.   The immediate outcome of this case as we see it would primarily be on those cases which are currently before Judges, the ratings will have to be recalculated to the 4th edition before being introduced into evidence.

 

These recommendations are not intended to serve as specific legal advice on individual claims but are intended to serve as general considerations.  Each case is unique and should be discussed with your defense attorney before developing a strategy.

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