In December of 2016, the Commonwealth Court addressed an issue significant to all claims professionals and defense attorneys wondering about the validity of unchallenged IREs conducted under the 5th and 6th Edition of the AMA Guidelines. The decision of Riley v. WCAB, which was just adopted as a Reported Decision by the Court this week, answers an important question as to whether all old, unchallenged are IREs are invalidated by the Court’s prior decision in Protz v. WCAB (Derry Area School District), 133 A.3d 733 (Pa. 2016).
By way of background, in an en banc decision issued by the Commonwealth Court in September of 2015 turned the IRE process on its head. The Court held in Protz that the provision of the Pennsylvania Workers’ Compensation Act that the “most recent edition” of the AMA Guidelines was to be used in IREs was an unconstitutional delegation of power to the AMA to determine the criteria under which a claimant’s benefits could be modified from temporary total disability to permanent partial disability --- a move which essentially limits the claimant to a total maximum exposure of 500 more weeks of benefits. The Commonwealth Court’s decision in Protz is currently on appeal before the Pennsylvania Supreme Court.
In Riley, the claimant sought to have the decision in Protz applied to her 2003 IRE which had been done under the 5th Edition of the AMA Guidelines to Permanent Impairment. She argued that in light of the decision in Protz, the use of anything other than the 4th Edition of the AMA Guidelines was improper, and her IRE was on its face invalid. The Commonwealth Court rejected her argument that Protz was controlling and found that the claimant’s failure to appeal the IRE determination in 60 days was a waiver of the right to challenge its validity.
Should the Riley decision go unchallenged, and should the Pennsylvania Supreme Court’s awaited decision in Protz not strike down this ruling, employers and carriers across the Commonwealth will be able to breathe a collective sigh of relief because old unchallenged IREs under the 5th or 6th Guidelines should remain valid.