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Pennsylvania Supreme Court Grants Allocatur On Both Petitions in Protz

On March 21, 2016 the Supreme Court granted both the Claimant’s and the Employer’s Petitions for Allowance of Appeal in the matter of Protz v WCAB (Derry Area School District).  In September of 2015 the Commonwealth Court turned the IRE process upside down by deciding that the use of the "current" edition of the AMA’s Guides to the Evaluation of Permanent Impairment was an improper and unconstitutional delegation of legislative authority to the AMA, and that the legislature must have meant that IRE’s were to be conducted under the Fourth Edition when it referred to the "current" version of the Guides.


With respect to the Claimant’s Petition for Allowance of Appeal, the question to be decided as framed by the Claimant is:


Whether the Commonwealth Court - after properly determining that

Section 306(a.2) of the Workers’ Compensation Act was unconstitutional -

erred in remanding the case to the Workers’ Compensation Judge with

instructions to apply the Fourth Edition of the American Medical

Association’s Guides to the Evaluation of Permanent Impairment when

neither Section 306(a.2) nor any other section of the Act ever references

Fourth Edition and its usage was not sanctioned by the Pennsylvania



In other words, the Claimant’s position is that the Commonwealth Court should have completely invalidated the IRE provision of the Act and should not have remanded for a determination under the Fourth Edition of the AMA Guides since Section 306(a.2) does not reference the Fourth Edition.


With respect to the Employer’s Petition for Allowance of Appeal, the question to be decided by the Supreme Court as framed by the Employer is:


Does Section 306(a.2) of the Pennsylvania Workers’ Compensation Act

unconstitutionally delegate the State Legislature’s lawmaking authority in

violation of Article II, Section 1 of the Pennsylvania Constitution by

incorporating the most recent edition of the AMA Guides to the Evaluation of

Permanent Impairment?


To rephrase, the Employer’s position is that the Commonwealth Court should have upheld the use of the "current" version of the AMA Guidelines which has been the practice since Section 306(a.2) was passed under Act 57 of 1996.


Obviously the Defense Community would prefer that the current practice, which has existed for the last twenty years since the passage of Act 57, continue.  Until such time as the Supreme Court clarifies the constitutionality of the Impairment Rating provisions of the Act, we recommend that any IRE’s be conducted under both the Fourth and the Sixth Editions to the Guides.

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