Pennsylvania Supreme Court Accepts Appeal That Could Impact Impairment Rating Evaluations in Pennsylvania Workers Compensation Cases
We previously discussed in this Blog impairment rating evaluations (IRE) and how the Commonwealth Court in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), No. C.D. 2014 (Pa. Cmwlth. 2015), changed the landscape of IREs by holding that only the 4th edition of the AMA Guidelines could be used when analyzing an injured workers’ impairment, not the subsequent 5th and 6th editions.
However, a Petition for Allowance of Appeal was filed recently with the Pennsylvania Supreme Court which agreed to hear the arguments and will issue a decision on the Protz matter. Posted at No. 412 WAL 2015, the Supreme Court granted the appeal to decide this issue:
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.
The effect of Protz on current IRE litigation has sent a shockwave through the Pennsylvania Workers’ Compensation system which the Pennsylvania Supreme Court has recognized. It rarely grants appeals unless there is a fundamental shift in the law by a lower court decision or when there is a conflict in case authority by the Commonwealth Court. Consequently, the Court will be the final arbiter of whether impairment rating evaluations must be utilized under the 4th edition or under the most recent edition.
The Protz decision is still the controlling precedent in Pennsylvania until (or even if), the Supreme Court would reverse or modify its holding. Under the “law of the case” doctrine, any litigation which is completed before the Supreme Court issues a decision on this case will stand. Only cases which are currently in litigation, or are on appeal at the time the Court ultimately issues its decision, will be affected. From an injured workers’ perspective, the Protz decision is particularly favorable as the 4th edition of the AMA Guides is more preferential to the worker than the 5th and 6th editions. Consequently, an injured worker who receives a notice to attend an impairment rating evaluation should immediately contact an attorney specialized in Pennsylvania Workers’ Compensation law to discuss the process and the effects on his or her rights.
