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Special Workers' Compensation Alert - Impairment Rating Provisions of the PA Worker's Comp Act Unconstitutional
By Francis X. Wickersham
On June 20, 2017, the Pennsylvania Supreme Court issued its highly anticipated decision in Protz v. WCAB (Derry Area School District), No. 6 WAP 2016; No. 7 WAP 2016; Decided June 20, 2017; By Justice Wecht.
Not only did the court affirm the Commonwealth Court’s holding as unconstitutional the Act’s mandate requiring physicians to use the most recent edition of the AMA Guides to the Evaluation of Permanent Impairment in performing IREs, the court also found all of Section 306 (a.2) to lack any constitutional validity and struck it from the Act in its entirety. The court also concluded that the Commonwealth Court’s interpretation of Section 306 (a.2) as allowing for IREs to be performed using the 4th Edition of the AMA Guides was wrong and contrary to the General Assembly’s intent. According to the court, it was obvious that the General Assembly’s use of the words “the most recent edition” meant the IRE physician was to use the edition of the Guides that was most recent at the time of the examination, not the edition (4th) in place at the time Section 306(a.2) was passed.
Ultimately, the Supreme Court found that Section 306(a.2) violated the non-delegation doctrine of the Constitution because it gave the AMA “unfettered discretion” over Pennsylvania’s impairment rating methodology. It described the authority delegated to the AMA in Section 306(a.2) as “broad and unbridled.” It found that the General Assembly failed to provide any parameters for the AMA’s authority, giving it unrestricted control over the impairment rating process. Additionally, the court emphasized that the legislature did not include any procedural mechanisms in Section 306 (a.2), considered essential to protect against “administrative arbitrariness and caprice.” In short, the court determined that the General Assembly unconstitutionally delegated lawmaking authority to the AMA.
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