Special Workers' Compensation Alert - Pennsylvania

AFL-CIO's Action to Have the Act’s New IRE Provision Declared Unconstitutional Dismissed

Pennsylvania AFL-CIO v. Commonwealth of Pennsylvania, Governor Tom Wolf and W. Girard Oleksiak, Secretary of the Department of Labor and Industry; 62 M.D. 2019; Filed Oct. 11, 2019; by Judge Cohn Jubelirer, the AFL-CIO

by Francis X. Wickersham, Esq.

This case involves an action brought by the AFL-CIO, seeking to have § 306(a.3) of the Pennsylvania Workers’ Compensation Act declared unconstitutional. The provision provides for Impairment Rating Evaluations (IRE) and was signed into law following the Pennsylvania Supreme Court’s decision in the case of Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017), finding § 306(a.2) unconstitutional. In the Protz case, the Supreme Court found that § 306(a.2) of the Act violated Article 2, §1 of the Pennsylvania Constitution because it was an unlawful delegation of the General Assembly’s legislative authority. The AFL-CIO argued that the new IRE law is also unconstitutional.

The court noted that § 306(a.3) changed the IRE process from the pre-Protz process in two ways. First, it reduced the threshold impairment rating from 50% to 35%. Second, IRE determinations were to be made pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment, Sixth Edition (AMA Guide), rather than pursuant to the most recent edition of the AMA Guide.

The court rejected the argument made by the AFL-CIO that the new IRE provision once again delegates the General Assembly’s legislative function to the AMA, a private entity. According to the court, the General Assembly did not delegate its legislative authority when it enacted § 306(a.3), but adopted existing standards as its own in the exercise of its power to legislate. As the Supreme Court noted in Protz, the non-delegation doctrine did not prohibit the General Assembly from adopting as its own a particular set of standards which were already are in existence at the time of adoption. The General Assembly did that by designating the Sixth Edition of the AMA Guides to be used for IREs, which was in existence when § 306(a.3) of the Act was enacted. The court further denied the AFL-CIO’s request for an injunction to enjoin the new IRE section of the Act. 

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