Pennsylvania Workers' Compensation Lawyer Blog

As noted in the previous blog posting, the PA Workers’ Compensation Act mandates that an Impairment Rating Evaluation (IRE) must be performed using the “most recent edition” of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. The most recent edition is the Sixth Edition, published around January 2008.

The Pennsylvania Bureau of Workers’ Compensation, in early 2008, stated that it would accept an IRE performed under the Fifth or Sixth Editions until September 1, 2008, to give IRE physicians a chance to become certified under the new edition.

Whether this pronouncement by the PA Bureau of Workers’ Compensation was consistent with the Pennsylvania Workers’ Compensation Act was addressed by the Commonwealth Court of Pennsylvania in Stanish v. Workers Compensation Appeal Board (James J. Anderson Construction Co.).

In this case, an IRE was performed in April, 2008, using the Fifth Edition of the AMA Guides. Under the pronouncement by the PA Bureau of Workers’ Compensation, the Workers’ Compensation Judge (WCJ) found the IRE valid and granted the shift of total disability benefits to partial disability benefits as requested by the workers’ comp insurance carrier. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

On appeal, however, the Commonwealth Court of Pennsylvania reversed. The PA Workers’ Compensation Act specifically states that the “most recent edition” of the AMA Guides must be used. The pronouncement by the PA Bureau of Workers’ Compensation, that IRE physicians could still use the Fifth Edition, after the Sixth Edition was published, was inconsistent with the Act, and not valid. Since the IRE in the case at issue was performed using the Fifth Edition, after the date the Sixth Edition was published, the IRE did not use the “most recent edition,” and was therefore not valid.

In Pennsylvania workers’ comp, as in workers’ compensation systems throughout the U.S., the American Medical Association’s Guides to the Evaluation of Permanent Impairment is being used to assess disability. In other words, an injured worker’s condition and ability to work is being determined by referencing a book, distancing any subjectivity at all. The Guides are now in the Sixth Edition (some States use a specific edition of the Guides, while others, like PA, use the most recent edition).

As discussed in a previous blog entry, PA has a ridiculously high standard to maintain total disability. In Pennsylvania, an injured worker can be deemed only “partially disabled” if they do not reach 50% “whole body impairment.” For point of comparison, as an example, a “very severe,” “approaching total functional loss,” of the cervical spine can reach a maximum whole body impairment of 30%. For the lumbar spine, the whole body impairment can be as high as 33%. Obviously, a devastating injury to the neck or low back, by these figures, will fall short of 50%. It is completely unrealistic, and just plain mean spirited, however, to suggest that an injured worker with this degree of impairment is capable of employment.

Fortunately, the debate is living on, at least on the Federal level. On November 17, 2010, testimony was given by Emily A. Spieler, J.D., Dean and Edwin W. Hadley Professor of Law at Northeastern University School of Law in Boston, Massachusetts, before the Subcommittee on Workforce Protections Committee on Education and Labor in the
U.S. House of Representatives. In her presentation, Ms. Spieler, who had a role in the drafting of previous edition of the Guides, touched on the limitations in using the Guides for determining “disability” (which, of course, is completely different from “impairment”).

While the 50% “whole body impairment” threshold still exists in Pennsylvania workers’ comp, the Sixth Edition of the AMA Guides makes meeting this absurd standard even more difficult for an injured worker in PA. Just looking at musculoskeletal injuries, which comprise the majority of PA workers’ compensation cases, Ms. Spieler observed:

“Probably the most significant changes are the elimination of the Range of Motion assessment and the pain addon. In addition, cases involving surgical intervention are all substantially reduced in terms of WPI. These include spinal fusion (reduced from 24% to 15% WPI), ankle replacement with poor result (30% to 24% WPI), total knee replacement (from 20% to 15% WPI) and hip fracture (from 25% to 12% WPI).”

Her testimony addresses many of the issues and reasons why the Guide, at least as it stands now, should not be used to determine disability. As always, we, the injured workers, and potential injured workers in PA, must rely on the Pennsylvania Legislature to do the right thing, to make the Pennsylvania Workers’ Compensation Act the law protecting injured workers, as it was designed to serve.

It is funny how, after relatively few PA workers’ compensation hearing loss cases were decided by the Commonwealth Court of Pennsylvania, now, all of a sudden, it seems like every case decided by the Court is on this issue.

In our previous blog post, we mentioned that an injured worker in PA must have at least a 10% “binaural” (both ears) hearing impairment to receive any workers’ compensation benefits for a work-related loss of hearing. Since the statute clearly states that the loss of hearing is to be evaluated by looking at the effect on both ears, what happens if the loss is just in one ear? Recently, the Court addressed this very issue in Duncannon Borough v. Workers’ Compensation Appeal Board (Bruno).

Here, the injured worker, a police officer, was in a motor vehicle accident while in the scope and course of his employment. As a result of this accident, in addition to other injuries, he suffered a 31.88% hearing impairment to his right ear. Calculated “binaurally,” the hearing impairment was below the 10% threshold. The Workers’ Compensation Judge (WCJ) granted the Review Petition, finding that the injury to the single ear did not need to be calculated binaurally. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

On appeal, the Commonwealth Court of Pennsylvania reversed, denying the Review Petition. The Court found that, although one can receive PA workers’ compensation benefits for a loss of hearing in only one ear, the threshold of 10%, binaurally, still must be reached before the injured worker is eligible to receive any PA workers’ comp benefits for a work-related loss of hearing.