Use of the 5th and 6th Editions of the AMA Guides to the Evaluation of Permanent Impairment under the Pennsylvania Workers’ Compensation Act is unconstitutional. IREs performed under Section 306(a.2) of the Act must use the 4th Edition of the AMA Guides.

The employer’s physician performing the IRE used the 6^th Edition of the AMA Guides to the Evaluation of Permanent Impairment (Guides), the most recent version at the time. The employer filed a modification petition seeking to convert the claimant to partial disability status, which was granted. The claimant appealed, arguing that §306 (a.2) was an “[u]nconstitutional delegation of authority by the state legislator.” The Appeal Board affirmed the decision, finding that the constitutionality of the provision had already been decided by the Commonwealth Court.

On appeal to the Commonwealth Court, the claimant argued that §306 (a.2) of the Act was unconstitutional because it gave the AMA, rather than the General Assembly, authority to establish criteria under which a claimant is adjudicated partially or totally disabled. The claimant pointed out that, since IREs began being performed, the Guides have undergone two revisions and the current edition provided substantially different standards than those in the 4^th Edition, thereby causing claimants who would have been considered more than 50% impaired under the 4^th Edition to be less than 50% impaired under the 6^th Edition.

The court agreed with the claimant, granting her appeal, and stating that the mere requirement under §306 (a.2) that the most recent version of the AMA Guides be used to determine a claimant’s impairment rating was, under this basis alone, enough to find §306 (a.2) unconstitutional. The court also found that the Act lacked a mechanism requiring governmental review of the Guides by the promulgation of regulations. In the court’s view, the General Assembly adopted as its own the methodology enumerated by the AMA at the time it enacted §306 (a.2), the methodology contained in the 4^th Edition of the Guides, and had not reviewed and readopted the methodology contained in subsequent editions. The court noted that this lack of review of subsequent editions of the Guides left “unchecked discretion” completely in the hands of a private entity and gave the AMA “carte blanche authority” to implement its own policies and standards. The court concluded that §306 (a.2) was an unconstitutional delegation of legislative authority because it proactively approved versions of the AMA Guides beyond the 4^th Edition without review. The court vacated the Board’s decision and remanded the matter to the Judge to apply the 4^th Edition of the AMA Guides.

_{Case Law Alerts, 1st Quarter, January 2016}

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