Commonwealth Court vacates Board’s order affirming IRE performed using the 6th Edition of the AMA Guides holding that Protz v. WCAB controls.

In October 2012, the claimant underwent an IRE, and an impairment rating of 28% under the 6^th Edition of the AMA Guides was given. The employer filed a notice to adjust the claimant to partial disability status, and the claimant filed a petition challenging the IRE as defective. The Workers’ Compensation Judge held that the IRE physician failed to demonstrate she fulfilled the training requirements to be an approved IRE physician and the department’s designation was made before both parties made a good faith effort to agree on an IRE physician. The judge also found the employer failed to present evidence to establish the date the claimant received 104 weeks of temporary total disability benefits; therefore, it was impossible to decide whether the request for an IRE was timely, premature or late.

The Appeal Board reversed, finding the IRE was timely and the IRE physician competent to testify. The Board also determined the Act does not limit designation of an IRE physician to instances where the parties are unable to agree. The claimant argued that under Protz v. WCAB (Derry Area School District), which was decided after the Workers’ Compensation Judge issued her decision, the IRE physician’s testimony was incompetent because she used the 6^th Edition of the AMA Guides. The Board refused to address the issue because the claimant had not appealed the judge’s decision and never challenged the constitutionality of Section 306(a.2) of the Act.

The claimant appealed to the Commonwealth Court. While recognizing that the claimant did not challenge the use of the most recent edition of the AMA Guides before the Workers’ Compensation Judge, the court considered it an exception to a waiver by the claimant. The court held that, because this matter began before Protz was decided and the claimant raised the issue of the validity of a statute at the first opportunity to do so, the claimant was allowed to raise the issue of the improper use of the 6^th Edition of the AMA Guides on appeal. The court vacated the Board’s order and remanded with instruction to remand to the Workers’ Compensation Judge to decide whether the 4^th Edition and the 6^th Edition of AMA Guides were different with respect to the injuries at issue and, if so, to receive testimony as to the impairment rating based on the 4^th Edition of the AMA Guides.

_{Case Law Alerts, 2^nd Quarter, April 2017}

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