Protz “Fix” Awaits PA Governor’s Signature

Last Thursday (October 18, 2018), the Pennsylvania legislature sent House Bill 1840, a/k/a “the Protz Fix,” to Governor Wolf’s desk for his signature. Passed by an easy 34-15 margin, the bill would largely undo the holding of a split Supreme Court of Pennsylvania in Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827 (Penn. 2017), which held that § 306(a.2) of the state’s Workers’ Compensation Act [77 P.S. § 511.2(1)], requiring physicians to apply the methodology set forth in “the most recent edition” of the AMA Guides, violated the state’s constitution [for a more complete treatment of Protz, click here].

How the “Fix” Works

Essentially, House Bill restates the “old,” unconstitutional provision with an almost identical provision that substitutes “the sixth edition” for the former “most recent edition.” The divided Supreme Court held that the use of “most recent edition” amounted to an improper delegation of legislative duty and discretion to the American Medical Association. By designating “the six edition,” lawmakers determined Protz could be undone.

HB 1840 Also Impacts Commonwealth Court’s Thompson Decision

Subsequent to Protz, the Pennsylvania’s Commonwealth Court, in Thompson v. Workers’ Comp. Appeal Bd. (Exelon Corp.), 168 A.3d 408 (Pa. Commw. Ct. 2017) held the state’s entire impairment rating evaluation (IRE) process was unconstitutional since its statutory underpinning, § 306(a.2) of the state’s Workers’ Compensation Act, had been found struck down in Protz. HB 1840 would appear to reinstate the IME process, but with an important change.

Under the prior law, an employer could request that a claimant who had received total disability benefits for a total of 104 weeks undergo an IRE to evaluate the degree of permanent impairment caused by the work injury and any change of a claimant’s disability status from total disability to partial disability. Generally speaking, if the impairment rating was found to be less than 50 percent, the injured employee’s status could be changed to partial disability. That change meant the worker generally could receive no benefits beyond 500 weeks. Under HB 1840, the “old” 50 percent threshold has been changed to 35 percent.

Increased Burial Benefits

Further, under HB 1840, maximum burial expenses for workplace fatalities are increased from $3,000 to $7,000.

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2 Responses to Protz “Fix” Awaits PA Governor’s Signature

  1. Jon Rehm says:

    So what’s the impact of the IRE reform? Claimants are generally worse off under the AMA 6th, but does the IRE reform help claimants? I don’t know how that IRE works.

    • It’s difficult to say. I have a call scheduled next week to discuss the issue with one of my PA colleagues. The statute’s change from 50% to 35% is going to be favorable for injured workers–the extent of favorability, of course, is something that has not been calibrated. Indeed, most feel the injured worker loses with use of the 6th edition. I think that the net result will be a slight improvement for injured workers (due to the reduction to 35%).

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