Articles Posted in Case Law Update

Back in June, 2015, we discussed the case of Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.).  Here, the Commonwealth Court of Pennsylvania found an Impairment Rating Evaluation (IRE) still valid, even though not all accepted injuries were included.  An IRE, as you can read on our website, changes the disability status of an injured worker from total to partial.

We are happy to report that the Supreme Court of Pennsylvania has accepted appeal in this matter.  Specifically, the Court will be addressing the issue:

Did the Commonwealth Court err in concluding that an Impairment Rating Evaluation (IRE), which is designed to rate the percentage of disability two years out from a work injury, was valid where the IRE only considered the injuries listed on the notice of compensation payable issued at the time of injury, and did not consider additional injuries that subsequently arose and were known at the time of the IRE but not yet formally added to the description of injury?”

We will, of course, provides further information as it becomes available.

To win a Claim Petition in Pennsylvania, an injured worker must prove that the alleged work injury was caused by the work activities.  This is usually done through the testimony of the injured worker.  However, what about in the situation where the work injury is fatal, leaving nobody with direct and personal knowledge to testify?  Commonwealth Court of Pennsylvania recently addressed this very issue.

In the case of Dietz v. Workers’ Compensation Appeal Board (Lower Bucks County Joint Municipal Authority), the injured worker performed a physical job “that included jackhammering to dig up the road, repairing water main breaks and cutting tree roots out of the sewer system.”  This was according to the testimony of the widow, and this testimony was not disputed.  The widow added that this was the job every day (in other words, there were no days of desk work involved).  On November 7, 2007, the injured worker suffered a fatal heart attack at work after a long day on the job.

Since the Employer and the workers’ comp insurance carrier denied fatal claim benefits to the widow and surviving child (bless their little hearts, eh?), the widow filed a Fatal Claim Petition.  After hearing the evidence, the Workers’ Compensation Judge (WCJ) found the widow generally credible, but denied the claim because it was not proven that the injured worker had a more strenuous than usual day on the day of his death.  However, this decision was reversed by the Workers’ Compensation Appeal Board (WCAB) and the case remanded back to the WCJ.  The WCAB noted that there was no requirement of proving a more strenuous day; “a claimant need only prove a connection between the decedent’s employment and his death; showing a greater than normal exertion is unnecessary,” said the WCAB.

On remand, the WCJ reconsidered the evidence under the correct legal standard, and granted the Fatal Claim Petition.  Specifically, the WCJ found that the injured worker’s long workday caused the fatal heart attack.  Though few details were known about his specific duties on the day in question, the WCJ believed that was irrelevant, since the regular job duties entailed strenuous labor.

Upon appeal, the WCAB again reversed.  It was the opinion of the WCAB that the medical evidence offered by the widow was unsupported by any facts in the record, since the exact work duties that day were not known.  As such, the WCAB found that there was insufficient evidence to grant the Fatal Claim Petition.

This denial was then reversed by the Commonwealth Court of Pennsylvania, who found that the Fatal Claim Petition was properly granted.  The Court analyzed the case under existing case law:

”Our Supreme Court has explained that ‘where a decedent was performing his or her usual job assignment at the time of the fatal heart attack, and the connection between the work and the heart attack was supported by competent medical testimony, decedent’s claimant was entitled to compensation.’ . . . Where exertion leads to a fatal heart attack, there is no need to pinpoint the exact work duty which caused the exertion. . . In other words, ‘[i]t is not necessary to prove and identify the precise work details which caused a heart death that resulted from decedent’s exceptional work activity.’”

Since the credited testimony of the widow supported that every work day involved strenuous labor, and the record showed that the day in question was a long work day, the WCAB erred by reversing the granting of the Fatal Claim Petition.  The evidence of record was, in fact, sufficient to support the connection between the heart attack and the work duties.

Unless a PA workers’ compensation claim is litigated, an injury is typically accepted by the workers’ compensation insurance carrier via a Notice of Compensation Payable (NCP) or Notice of Temporary Compensation Payable (TNCP).  If an NCP, or a TNCP, is issued by the insurance company, they have the ability to unilaterally describe the nature of the injury.  Unless challenged by the injured worker, this is the only condition for which the insurance carrier need pay medical bills.  As you might imagine, this is a frequent area of litigation.

Litigation to amend the description of injury comes in two different types, which have previously been discussed on this blog.  A “corrective amendment” is for a condition which existed at the time of the original work injury; a “consequential condition” is one which developed after the date of the injury.  The method of litigation, time limitations and relative burdens may vary between the two.

Recently, the Commonwealth Court of Pennsylvania addressed this issue in Walter v. Workers’ Compensation Appeal Board (Evangelical Community Hospital).  Here, the injured worker (Claimant) worked as an emergency medical technician.  She injured her left shoulder lifting a patient on May 20, 2007.  An NCP was issued, accepting “left shoulder strain.”  Claimant underwent shoulder surgery later in 2007.

Subsequent litigation of a Petition to Review in 2010 led to a Workers’ Compensation Judge (WCJ) amending the description of injury to include “left impingement syndrome, tendonosis, distal supraspinatus left, sensitization left shoulder, left AC joint synovitis, left infraspinatus muscle atrophy, and left shoulder scapular dyskinesia.”

After this decision, later in 2010, Claimant had a second surgery, this a “left open suprascapular nerve decompression,” a procedure required for the diagnosis of “chronic severe left suprascapular neuropathy.”  The following year, 2011, the workers’ compensation insurance carrier filed a Petition for Termination, alleging Claimant had fully recovered from her work injury.

In this litigation, the WCJ found the opinion of Claimant’s medical expert more credible than that of the insurance carrier’s expert.  Since Claimant’s medical expert testified that the chronic severe left suprascapular neuropathy was related to the original injury, and had not fully resolved, the WCJ denied the Petition for Termination, and added the chronic severe left suprascapular neuropathy to the description of injury.  The insurance carrier appealed, and the Workers’ Compensation Appeal Board (WCAB) reversed that part of the decision which added the additional diagnosis to the accepted injury.  Essentially, the WCAB believed that the insurance carrier did not have sufficient notice that the description of injury was at issue.

Upon further appeal, the Commonwealth Court of Pennsylvania reversed the decision of the WCAB, and reinstated the original decision of the WCJ.  The Court first rejected the argument raised that the amendment to the description of injury required the filing of a Petition to Review.  Since this condition, according to the credited medical testimony, was present in the original work injury, this was a “corrective amendment” for which no Review Petition is required.  A WCJ can make a “corrective amendment” with any pending petition.

Next, the Court disagreed with the WCAB, and found that the insurance carrier had sufficient notice that an amendment to the description of injury was at issue.  As the Court said, “Whether an employer has had a fair opportunity to contest the corrective amendment is determined on a case-by-case basis by looking at the totality of circumstances.”  Here, the Court noted that, at the first hearing, Claimant brought up the surgery (to address the left suprascapular neuropathy) and said she had not fully recovered.  There had also been a Utilization Review, to address whether this surgery was reasonable and necessary.  Further, the medical expert obtained by the insurance carrier addressed the diagnosis in his deposition.  Based on these facts, the Court concluded that the insurance carrier had adequate notice that such a diagnosis was at issue.

We have discussed the concept of providing notice of a work injury to one’s employer before on this blog.  As a basic rule, notice of a work injury in Pennsylvania must be provided within 120 days of the injury.  This can get a bit tricky when we are dealing with “cumulative trauma” (when an injured worker may not even realize his or her condition is related to the work duties until being so advised by a doctor; in these cases, the 120 days does not begin until the injured worker obtains this knowledge [called the “discovery rule”]).

Today, Commonwealth Court of Pennsylvania issued a decision in the case of Gahring v. Workers’ Compensation Appeal Board (R and R Builders and Stoudt’s Brewing Company).  This decision required the Court to consider what constituted sufficient notice.  Here, the injured worker hurt his low back in 1997 for Employer A.  This was accepted as herniated discs at L3-4 and L4-5, and chronic low back pain.  Low back surgery was performed.  The case was settled in 2002.

In 2010, the injured worker starting as a line cook for Employer B.  When another worker left, causing an increase in hours, the injured worker told his Employer that he was having increased back pain.  This worsened until he needed another back surgery on November 17, 2010.

A Claim Petition was initially filed against Employer A, but then the litigation was expanded to also include Employer B.  The Workers’ Compensation Judge (WCJ) found the last date worked (November 10, 2010) to be the date of injury (as is done in a repetitive trauma case).  The WCJ found the testimony of the injured worker’s doctor credible (that the work at Employer B “aggravated” the condition, requiring the second surgery).  However, the WCJ found the notice was not sufficient and denied the Claim Petition.  This was affirmed on appeal by the Workers’ Compensation Appeal Board (WCAB).

However, upon further appeal, the Commonwealth Court of Pennsylvania reversed.  The Court explained that the WCJ (and the WCAB) required notice to be more detailed and specific than is required.  Of importance, the Court clarified that, “A claimant need not state with certainty that the injury is work-related, as long as employer is informed of ‘the possibility it was work-related.’”  Looking at the notice here, the statement to employer that the extra hours were causing increasing back pain, the Court determined that this met such a level and should be seen as sufficient notice.

It is not uncommon for an injured worker to move from the Commonwealth of Pennsylvania to another State for a variety of reasons.  Depending on the situation, such a move may have varying degrees of impact on a workers’ compensation case.  Recently, the Commonwealth Court of Pennsylvania thankfully held that merely relocating from the Commonwealth of Pennsylvania is not a “voluntary withdrawal from the labor market,” sufficient to stop workers’ comp benefits on its own.

In the case of Chesik v. Workers’ Compensation Appeal Board (Department of Military and Veterans’ Affairs), the injured worker suffered a cervical sprain/strain injury in July of 2009.  Upon learning that the injured worker had moved to Nevada, in 2013, the workers’ compensation insurance carrier filed a Petition to Suspend, alleging that “Claimant has moved to Nevada and has voluntarily removed herself from the workforce….”

The injured worker admitted in her testimony before the Workers’ Compensation Judge (WCJ) that she primarily moved for a drier and warmer climate, due to her having lupus and fibromyalgia (neither of which were said to be work-related).  These conditions had been present years before the work injury.  Her move to Nevada admittedly had nothing to do with her work-related injury.  Also, of note, the injured worker agreed she “retired” (a bad word to ever use in a workers’ comp situation) from her Employer in October 2012, and applied for a disability pension in December 2012.

After hearing the evidence, the WCJ granted the Suspension Petition, stopping wage loss benefits to the injured worker.  Essentially, the WCJ concluded that since she moved for reasons unrelated to her work injury, she “voluntarily removed herself from the workforce.”  As a result, the WCJ found “it is not medically necessary for [Employer] to show a change in physical condition or work availability given [C]laimant’s actions by moving from her present local Scranton, PA to Lovelock, Nevada and therefore, removing herself from the workforce locally.”  The WCJ also noted that the retirement, and taking of the pension, were further indicia of her intention to no longer seek gainful employment.

The Workers’ Compensation Appeal Board (WCAB) affirmed this decision, finding that the WCJ appropriately considered the totality of circumstances, and correctly concluded the injured worker had voluntarily removed herself from the workforce by relocating to Nevada.

This decision, however, was reversed by the Commonwealth Court of Pennsylvania, which held that merely relocating to another State in the US “does not constitute a voluntary removal from the workforce.”  [Note that there would likely be a different result if an injured worker permanently relocated out of the United States].  The law which created Labor Market Surveys/Earning Power Assessments specifically contains language about where the search should be for an injured worker who relocates from PA.  This, said the Court, shows the legislature did not intend leaving Pennsylvania to be fatal to the receipt of ongoing workers’ compensation benefits.  Further, the Court observed, based on existing case law, “the WCJ could not solely rely on Claimant’s receipt of her disability pension to support the suspension of benefits on the basis that she has permanently separated from the workforce.”

As our loyal readers know by now, an injury in Pennsylvania is covered by the PA Workers’ Compensation Act (Act) if the injury is suffered “in the furtherance of the employer’s business or affairs, regardless of whether the injury occurred on the employer’s premises” [presuming the employee is not subject to a different workers’ compensation scheme, such as the Federal Employees’ Compensation Act (FECA), Federal Employers’ Liability Act (FELA), or The Longshore and Harbor Workers’ Compensation Act (LHWCA), just to name a few].

We have also seen situations when a work injury is covered by the Act, even if the injured worker is not actually furthering the employer’s business or affairs, if other criteria are met.  More specifically, the injured worker in such a situation must be: “(1) injured on premises occupied or under the control of the employer, (2) required by the nature of his employment to be present on the premises; and (3) sustained injuries caused by the condition of the premises or by operation of the employer’s business or affairs thereon.”

A recent decision by the Supreme Court of Pennsylvania, O’Rourke v. Workers’ Compensation Appeal Board (Gartland), dealt with this issue, though in a very bizarre fact pattern.  The injured worker was employed, nominally, by her 33 year-old son, through a state-funded program under the Department of Public Welfare (DPW), to provide attendant care, necessitated by his long-term drug use.  The son (as Employer) was to receive 64 hours of care each week (note that he did not qualify to receive nighttime or 24-hour care).  The mother (Claimant/Employee) allowed her son to live with her, though this was not required by the DPW arrangement.  One night, after she went to bed, her son viciously stabbed her.

Since the mother was rendered disabled by the stabbing, she filed a Claim Petition, alleging that she was injured in the scope and course of her employment.  After reviewing the evidence, the Workers’ Compensation Judge (WCJ) granted the Claim Petition.  Though the mother was not actually helping her son (the Employer) at the time, the WCJ found that “her employment required her to be on the employer’s premises at the time that she sustained her injuries.”

This decision, however, was reversed by the Workers’ Compensation Appeal Board (WCAB).    The WCAB found that the mother had completed her work duties and gone to bed, and that her job did not require her to be present in the home.  Neither 24 hour care, nor nighttime care, was part of her job duties.

Interestingly, the decision of the WCAB was reversed by the Commonwealth Court of Pennsylvania, which reinstated the granting of the Claim Petition by the WCJ.  Ultimately, the Court concluded that Claimant was entitled to workers’ compensation benefits, since she was “’practically required’ to live on the premises by the nature of her employment.”  The Court applied a rarely used concept known as the “bunkhouse rule” (which comes into play when the injured worker is required by the nature of the situation to live on the employer’s premises).

Continuing the roller coaster history of this litigation, the Supreme Court of Pennsylvania  accepted appeal (remember, unlike the lower courts in PA, the Supreme Court of PA only accepts those appeals it so desires).  And, in one final twist, the Court reversed the decision rendered by the Commonwealth Court of Pennsylvania, finding that it was the WCAB who issued the correct decision (finding that the mother was not entitled to workers’ compensation benefits in this unique and tragic situation).  Since night-time care was not part of the job, the mother was not “required” by the job to be on the premises.  Further, it was not the Employer here providing the premises to the Employee, but the opposite (mother allowed son to stay at her house).  This takes the case out of the “bunkhouse rule” situation, and takes the entitlement to workers’ comp benefits away from Claimant.

While we are always fighting for the rights of the injured worker, on these facts, it is difficult to say that the Claimant was entitled to workers’ compensation benefits.  Though the situation is no doubt both sad and tragic, the Supreme Court quoted a previous case in noting, “the Act was not intended to make the employer an insurer of its employees’ lives and health.”

In 2004, the Pennsylvania Bureau of Workers’ Compensation created the medical-only Notice of Compensation Payable (NCP).  This addressed a long-standing practice in the insurance industry of using a Notice of Denial (NCD) to accept a claim solely for medical benefits.  For years, we have questioned the procedure an injured worker would use to allege a wage loss after the issuance of a medical-only NCP.  To be safe, many of us filed both a Claim Petition and a Petition for Reinstatement in such a situation.  This issue has now been clarified by the Commonwealth Court of Pennsylvania.

 

In the case of Ingrassia v. Workers’ Compensation Appeal Board (Universal Health Services, Inc.), the injured worker was involved in a motor vehicle accident while performing his work duties.  A medical-only NCP was issued, accepting a neck and back strain.  The injured worker believed his injuries were more significant, and that the work injury caused him to be disabled from performing his job.  A Claim Petition was filed, then amended by the injured worker to operate as a Petition for Reinstatement (the burden of proof is much less for a Petition for Reinstatement, so that would be the desired petition for an injured worker to use in this situation).

 

After hearing the evidence, the Workers’ Compensation Judge (WCJ) concluded that the work injury was more extensive than already accepted (so the diagnosis of left ulnar neuropathy was added), but that the injured worker failed to prove that he was disabled by the injuries.  Upon appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed.

 

The Commonwealth Court of Pennsylvania first examined the appropriate burden of proof in this situation.  It had been the belief of many of us, as attorneys who represent injured workers in PA, that a medical-only NCP is akin to a suspension status, such that one would only need a Petition for Reinstatement to prevail (and, this would not even technically require a medical opinion – one need only show the disability recurred through no fault of the injured worker).  Unfortunately, this argument was soundly rejected by The Court:

 

“Because Claimant did not establish a loss of earning capacity
resulting from the work injury accepted by Employer, there were no disability
benefits to suspend or to reinstate. In short, Claimant’s case has not ‘advanced
procedurally or in substance to the suspension/reinstatement stage.’”

 

As such, The Court concluded that the appropriate Petition to be used here is the Claim Petition, meaning that the injured worker bears the more demanding burden of proof to show that the injury is related to work and has caused the disability.  Interestingly, The Court did vacate the decision of the WCAB, and remand back to the WCJ, due to some inconsistencies in the findings of fact made by the WCJ (while the WCJ is the ultimate finder of fact, those findings must be supported by, and consistent with, the evidence of record).  The reasons for vacating and remanding are too specific to the facts, however, to be worth further discussion here.

From time to time in a Pennsylvania workers’ compensation case, the entity who is actually the “employer” for workers’ comp purposes is not clear. This is frequently due to the direct employer lacking PA workers’ compensation insurance coverage (which is against the law). When we face such a situation, often we are looking to see if there is a “statutory employer,” which is when a party other than the direct employer is responsible for the payment of workers’ comp benefits (this is most often seen in the construction arena, with subcontractor and general contractor). Almost always, the Uninsured Employers Guaranty Fund (UEGF) is involved in such a case (since the direct employer failed to carry workers’ comp insurance).

Recently, the Commonwealth Court of Pennsylvania was called upon to determine an interesting issue in this area – is a franchisor a “statutory employer” for an employee of a franchisee, if the franchisee fails to carry workers’ compensation insurance? In a word, the answer is no. The case is Saladworks, LLC and Wesco Ins. Co. v. WCAB (Gaudioso and UEGF).

This case revolves around an employee (“Claimant”) who worked at a Saladworks restaurant which was owned and operated by G21, LLC. Claimant twisted both knees when he slipped on water, and was rendered disabled by the incident. Seeking workers’ compensation benefits, Claimant filed Claim Petitions against both G21, LLC and the UEGF. In turn, UEGF filed a Joinder Petition against Saladworks, alleging that Saladworks (the franchisor) was the statutory employer in this case.

After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the Claim Petitions and dismissed the Joinder Petition. The WCJ concluded that a franchisor is not a statutory employer for a franchisee, as it fails to meet the definition of “Employer” in the Pennsylvania Workers’ Compensation Act. The Workers’ Compensation Appeal Board (WCAB), however, reversed on appeal. The WCAB felt that the WCJ erred in looking at the degree of control held by a franchisor, rather than looking at the situation as discussed in the 2012 Pennsylvania Supreme Court case of Six L’s Packing Company v. Workers’ Compensation Appeal Board (Williamson). This case addresses that the true focus in a statutory employer case must be on whether the company contracted with the other company to have work performed that was a regular part of the first company’s business.

On appeal to the Commonwealth Court of Pennsylvania, Saladworks argued that the WCAB was wrong, and that a franchisor was not a statutory employer for the employees of a franchisee, since the business conducted by the two companies is not the same. The Court agreed and reversed the WCAB, reinstating the decision of the WCJ (which in essence made the UEGF responsible for payment). Specifically, the Court concluded:

This Court must agree with Saladworks that its main business is the sale of franchises to franchisees that desire to use its name and ‘System’ and marketing expertise. While Saladworks and G21 are connected through the Agreement, this Court is not prepared to adopt the reasoning of the Board. While Saladworks provides certain services to independent franchisees like G21, it is not in the restaurant business or the business of selling salads.”

While the concept of statutory employer is no longer as critical to the injured worker in Pennsylvania (given the advent of the UEGF), there is still value to having a statutory employer found (and with it, PA workers’ compensation insurance coverage). The UEGF has many advantages, to the detriment of the injured worker, that cannot be used by a statutory employer (or its insurance carrier). That said, there is a great deal of logic and reason in this decision, making it difficult for us to disagree with the result.

An injured worker in Pennsylvania generally has three years after the date of the injury to file a Claim Petition to seek workers’ compensation benefits for the injury. On the other hand, once an injury is accepted by the issuance of a Notice of Compensation Payable (NCP), and then wage loss benefits are suspended, the injured worker generally has 500 weeks, or three years from the date of last payment, whichever is later, to file for a reinstatement to such benefits. Where, then, does the issuance of a “medical-only” NCP leave an injured worker? This issue was recently addressed by the Commonwealth Court of Pennsylvania.

A “medical-only” NCP is a fairly recent document created under the PA Workers’ Compensation Act. This document allows the workers’ comp insurance carrier to accept responsibility for an injury, and to acknowledge the payment of medical treatment for such injury, but to deny any wage loss (“Disability”) has taken place. As discussed below, it is one of the most misused and abused documents in the entire Act.

The Commonwealth Court of Pennsylvania recently decided the case of Sloane v. Workers’ Compensation Appeal Board (Children’s Hospital of Philadelphia). Here, the injured worker was a nurse who suffered an injury to her right elbow, diagnosed as lateral epicondylitis, in 2004. This injury was accepted by NCP and wage loss benefits began. Eventually, she went back to work, on a light duty basis. In 2006, she suffered another work injury, this one to her right elbow and also to her right knee. This time a medical-only NCP was issued. She continued to work, still on light duty, until 2007, when she went out of work to have a total knee replacement performed on the right knee. She never was able to go back to work.

In 2011, she filed a Petition for Reinstatement. After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the Petition, finding that the injured worker was disabled from the work injury as of November 17, 2007, as a result of both the 2004 and 2006 injuries (the WCJ also determined that the 2006 work injury caused the need for the total knee replacement, but that finding is not relevant to this discussion).

On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed. As to the 2006 injury, the WCAB found that the injured worker had only three years to file a Petition for Reinstatement, and therefore, this Petition was not filed timely. Unfortunately for the injured worker, the WCAB then found that the Petition for the 2004 injury, while timely, could not support an award of reinstatement. This is because the 2004 injury was solely for the right elbow and there was no medical evidence that the disability in 2007 was for anything other than the knee.

An appeal to the Commonwealth Court of Pennsylvania by the injured worker was not successful, as the decision of the WCAB was affirmed. The Court concluded that a medical-only NCP is not the same as when a WCJ grants a Claim Petition and then immediately suspends wage loss benefits (as had been the routine prior to the creation of the medical-only NCP). In that situation, the injured worker would have 500 weeks within which to file a Petition for Reinstatement. However, with a medical-only NCP, no wage loss or disability had ever been recognized, so only the three year period would be available to the injured worker. As to the 2004 injury, the Court decided that the parties stipulated on the record that this litigation involved solely the 2006 injury, so the 2004 injury was never actually before the WCJ (A Court can affirm a decision, even if on different grounds). Considering that earlier in the litigation, the attorney for the injured worker specifically stated he was seeking reinstatement for both the 2004 and 2006 injuries, this holding seems a bit questionable. Regardless, it would appear, if necessary, the Court would have simply affirmed the WCAB on the same grounds.

Above, we mentioned the frequent misuse or abuse of the medical-only NCP. A favored tactic of workers’ compensation insurance carriers is to issue a Notice of Temporary Compensation Payable (TNCP), to temporarily accept a claim. Then, within the 90 days provided to revoke such a document, the insurance carrier will revoke it and issue a medical-only NCP. This is often done when the injured worker returns to work within the 90 days. So, if this case is now the law, then there should be a penalty for using the medical-only NCP if there had been any wage loss as a result of the injury. While I doubt any WCJ in PA will grant such a Petition, we can assure you that we will be filing Petitions for Penalties now in these situations. Under the theory of “what is good for the goose is good for the gander” (Or, I suppose, “you can’t have it both ways”), either the medical-only NCP means there has been no wage loss at all or it does not.

We have discussed Impairment Rating Evaluations (IRE) many times on this blog. Indeed, IREs are so prevalent in the Pennsylvania’s workers’ compensation system, we even have a page devoted to the IRE process on our website. However, a decision by the Commonwealth Court of Pennsylvania may change IREs in PA in a significant way.

Today, the case of M.A. Protz v. Workers’ Compensation Appeal Board (Derry Area SD) was decided by the Commonwealth Court of Pennsylvania. In this decision, the Court declared that Section 306(a.2), which states that IREs are to be performed “pursuant to the most recent edition of the American Medical Association (AMA) ‘Guides to the Evaluation of Permanent Impairment,'” is unconstitutional. Essentially, the Court found that the legislature cannot delegate legislative authority to the AMA (since the legislature would not be reviewing or approving each new edition of the AMA Guide). When the IRE process was instituted, as part of Act 57, the AMA Guide was in its Fourth Edition (it is currently in its Sixth Edition).

The Court remanded the case back to the Workers’ Compensation Judge (WCJ), for the WCJ to consider the IRE under the Fourth Edition (according to the Court, this would be the most recent edition actually reviewed by the legislature).

Several questions are unanswered at this point. First, will this decision be appealed to the Supreme Court of Pennsylvania (almost certainly a request for appeal will be made, but the Supreme Court, unlike lower courts, has discretion whether to grant appeal or not). Second, what about the IREs now in the system – what becomes of them? Third, if the Pennsylvania Workers’ Compensation Act specifically states to use the most recent edition, and there was no mention whatsoever for the Fourth Edition to be used, why was that portion of the Act not simply struck down (instead of using the Fourth Edition).

While we are excited to see this unfair aspect of the Act narrowed, we will be watching future developments to see how this ends up.