The AMA Guides in Pennsylvania “Post-Protz”: Act 111 and Case Law Update
Justin D. Beck
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Judge David B. Torrey
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Abstract

Medical evaluators must understand the context for the impairment assessments they perform. This article exemplifies issues that arise based on the role of impairment ratings and what edition of the AMA Guides to the Impairment of Permanent Impairment (AMA Guides) is used. This discussion also raises interesting legal questions related to retroactivity, applicability of prior precedent, and delegation. On June 20, 2017, the Supreme Court of Pennsylvania handed down its decision, Protz v. WCAB (Derry Area Sch. Dist.), which disallows use of the “most recent edition” of the AMA Guides when determining partial disability entitlement under the Pennsylvania Workers’ Compensation Act. An attempted solution was passed by the Pennsylvania General Assembly and was signed into law Act 111 on October 24, 2018. Although it affirms that the AMA Guides, Sixth Edition, must be used for impairment ratings, the law reduces the threshold for total disability benefits from 50% to 35% impairment. This legislative adjustment benefited injured workers but sparked additional litigation about whether, when, and how the adjustment should be applied (excerpts from the laws and decisions discussed by the authors are included at the end of the article). In using impairment as a threshold for permanent disability benefits, evaluators must distinguish between impairment and disability and determine an appropriate threshold; they also must be aware of the compensation and adjudication process and of the jurisdictions in which they practice.

  • 1.

    Protz v. WCAB (Derry Area Sch. Dist.), 161 A.3d 827 (Pa. 2017). The Commonwealth Court rendition of the case is Protz I. The Supreme Court decision is Protz II.

  • 2.

    Whitfield v. WCAB (Tenet Health System Hahnemann LLC), 188 A.3d 599 (Pa. Commw. 2018).

  • 3.

    Dana Holding Corp. v. WCAB (Smuck), 195 A.3d 635 (Pa. Commw. 2018), appeal granted in part, 2019 WL 2098032 (Pa. 2019).

  • 4.

    Whitfield v. WCAB (Tenet Health System Hahnemann), 188 A.3d 599 (Pa. Commw. 2018).

  • 5.

    Remarks of Judge Steven Minnich, PBI Tough Problems CLE (Pittsburgh, March 27, 2019).

  • 6.

    For this proposition, the court cited Latta v. WCAB (Latrobe Die Casting Co.), 642 A.2d 1083 (Pa. 1994).

  • 7.

    Weidenhammer v. WCAB (Albright College), Pa. Commw. No. 546 C.D. 2019, filed May 14, 2020, 2020 WL 2501022, Leavitt, P.J. (Pa. Commw. 2020).

  • 8.

    See Pavlack v. WCAB (UPMC South Side), 2018 WL 2708527 (Pa. Commw. 2018); Moore v. WCAB (Sunoco, Inc.), 2018 WL 2708524 (Pa. Commw. 2018). The claimant in Pavlack (back injury, 13% permanent impairment), was within her 500 weeks at the time Protz I prompted her to file a reinstatement petition. The claimant in Moore (elbow injury, 32% permanent impairment) was, similarly, within (though barely) his 500 weeks at the time Protz I prompted him to file his modification petition. By the time Protz II was handed down, his 500 weeks had expired.

  • 9.

    Thompson v. WCAB (Exelon Corp.), 168 A.3d 408 (Pa. Commw. 2017). For a case that follows Thompson, see Dana Holding Corp. v. WCAB (Smuck), 195 A.3d 635 (Pa. Commw. 2019), appeal granted in part, 2019 WL 2098032 (Pa. 2019).

  • 10.

    Riley v. WCAB (Commonwealth of PA), 154 A.3d 396 (Pa. Commw. 2016).

  • 11.

    Gillespie v. WCAB (Aker Philadelphia Shipyard), Pa. Commw. No. 1633 C.D. 2016 (filed May 17, 2017).

  • 12.

    Timcho v. WCAB (City of Philadelphia), 192 A.3d 1219 (Pa. Commw. 2018).

  • 13.

    Dana Holding Corp. v. WCAB (Smuck), 195 A.3d 635 (Pa. Commw. 2019), appeal granted in part, 2019 WL 2098032 (Pa. 2019).

  • 14.

    The court remarked, “the constitutionality of a statute need not be raised before an administrative agency.” Section 703(a) of the Administrative Agency Law, 2 Pa. C.S. § 703(a).

  • 15.

    Dana Holding Corporation v. WCAB (Smuck), 195 A.3d 635 (Pa. Commw. Ct. 2018), appeal granted in part, 2019 WL 2098032 (Pa. 2019).

  • 16.

    Protz v. WCAB (Derry Area Sch. Dist.), 161 A.3d 827 (Pa. 2018). For a detailed review, see A Guide to Pennsylvania Act 111 at https://www.tthlaw.com/wp-content/uploads/2018/11/Act-111-Guide.pdf. See also https://www.johnseastern.com/wp-content/uploads/2018/11/Chartwell-Update_112718.pdf. According to the law's sponsor, as found on the state's legislative website, “We plan to introduce legislation to address the PA Supreme Court's [decision in Protz] and prevent the significant increases in workers' compensation insurance premiums that employers will experience as the result of this decision.” In 2019, the AFL-CIO sued in Commonwealth Court, seeking declaratory relief, alleging that the law was invalid. See this section, text accompanying note 7.

  • 17.

    While the critical rating threshold has been reduced from 50% to 35%, such figure remains, by national standards, high. For example, under Maine law, injured workers find entitlement to long-term partial incapacity benefits where their impairment rating exceeds 18%.

  • 18.

    Comments of Matthew L. Wilson, Esq. (PBI Seminar, Pittsburgh, PA, May 23, 2018). The Post … Schell law firm features a website discussion of the new law and echoes this paper's article's assertion that the retroactive credit provision is controversial: “It is likely,” the writer states, “that this issue will be the subject of litigation and ultimately will be decided by the appellate courts.” http://www.postschell.com/publications/1588-act-reinstates-ire-process-pennsylvania.

  • 19.

    Combine v. WCAB (National Fuel Gas Distribution Corp.), 954 A.2d 776 (Pa. Commw. 2008).

  • 20.

    Pennsylvania Department of Labor … Industry, UCC Codes, available at https://www.dli.pa.gov/ucc/Pages/UCC-Codes.aspx (last visited October 25, 2018).

  • 21.

    Protz v. WCAB (Derry Area Sch. Dist.), 161 A.3d 827, 837 (Pa. 2017).

  • 22.

    Justin D. Beck, “Labor Union Sues, Claiming New IRE Provisions Unconstitutional: Pennsylvania AFL-CIO Seeks Declaratory and Injunctive Relief against Act 111.” https://www.tthlaw.com/tth-enotes-workers-compensation-march-2019/.

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