by Karl Voigt
In a late-breaking development, the Pennsylvania Commonwealth Court has severely limited the use of Impairment Rating Evaluations by insurance companies. This ruling may affect ongoing Workers’ Compensation claims, as well as those that have been affected in past years.
Workers’ Compensation insurance companies have, since 1996, have the ability to subject an injured worker to an Impairment Rating Evaluation (IRE). Like an insurance medical examination (IME), the IRE requires a physical examination by a doctor. The examining doctor must then use the American Medical Association’s Guides to the Evaluation of Permanent Impairment, which is now in its sixth edition. If the claimant is less than 50% disabled according to the Guides, wage loss benefits are limited to no more than 500 weeks.
In Protz v. Workers’ Compensation Appeal Board (Derry Area School District), No. 1024 C.D. 2014 (Pa.Cmwlth. 2015), the Commonwealth Court heard a challenge from an injured worker whose benefits were limited as a result of an IRE based on the sixth edition of the Guides. The Court in essence struck down that IRE.
Here’s the problem: the sixth edition of the Guides that is now in use is stricter than the fourth edition. The Pennsylvania General Assembly has never scrutinized the fifth or sixth editions. Therefore, the Court found that making doctors use the most recent AMA guidelines to evaluate disability unlawfully delegated power away from the government and to a private organization, who can amend its Guides without legislative review.
Of course, this will affect IRE petitions presently being litigated; IREs based on the fifth or sixth edition may not be valid. However, since the publication of the fifth editions of the Guides in 2000, there are a large number of people whose benefits have been modified. What will happen to these cases is uncertain. However, the employer in this matter has appealed this issue to the Pennsylvania Supreme Court, so stay tuned here for updates.
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