Yesterday (October 2, 2017), a cadre of 29 Pennsylvania legislators introduced a bill—House Bill 1840—that would require physicians to apply the methodology set forth in “the sixth edition” of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), when determining the degree of medical impairment sustained by an employee who has sustained an injury compensable under the state’s Workers’ Compensation Act [“the Act”]. If passed in its present form, the bill would essentially reinstate former Section 306(a.2) of the state’s Workers’ Compensation Act [77 P.S. § 511.2(1)], which had been declared unconstitutional by a divided Supreme Court of Pennsylvania, in Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827 (Pa. 2017).
In Protz, as I noted earlier here, the majority of the Court held § 306(a.2) violated the state’s constitutional requirement that all legislative power “be vested in a General Assembly” [Pa. Const. art. II, § 1]. By designating a specific edition of the AMA Guides (i.e., the 6th), instead of requiring the use of the “most recent edition,” sponsors of HB 1840 aim to return the state’s law to the status that it enjoyed before Protz.
Bill Would Also “Undo” Thompson Decision
The bill also seeks to “undo” a decision of the Commonwealth Court of Pennsylvania, Thompson v. Workers’ Comp. Appeal Bd. (Exelon Corp.), 2017 Pa. Commw. LEXIS 596 (Aug. 16, 2017), rendered approximately one month after Protz. In Thompson, the Commonwealth Court held that without the undermining supplied by § 306(a.2), the entire impairment rating evaluation (IRE) process set forth within the state’s Workers’ Compensation Act could no longer be sustained.
Until Thompson, if the employer could establish that the employee’s impairment rating was less than 50 percent (under the AMA Guides), the employee’s partial disability benefits were capped at 104 weeks. In Thompson, the Commonwealth Court held that the employee’s benefits could not be capped, since the statutory method for determining the degree of impairment had been excised from the Act.
Many employers and their insurers had pushed for some sort of legislative fix to Protz and Thompson. House Bill 1840 may do the trick. Use of the 6th edition is not favored by claimants’ advocates, however, as such use generally results in smaller impairment ratings than if other editions—particularly the 5th—are used.
Bill Referred to Committee
For the moment, the bill has been referred to the House’s Committee on Labor and Industry. Expect to hear some spirited debate as the issue is fought out within the Legislator.