Wednesday, October 28, 2015

PROTZ IRE Decision Part II

Protz v. WCAB (Derry Area School District) was decided by the Commonwealth Court of Pennsylvania on September 18, 2015. That decision held that the Impairment Rating Evaluation [Section 306 (a.2)] statute requirement for the application of the "most recent edition" of the American Medical Association Guides to the Evaluation of Permanent Impairment was an unconstitutional delegation of legislative authority.

The PA Legislature could not properly draft a statute that placed the IRE standard  in the hands of the AMA Guides. Those Guides can change. Therefore the law would change ... without any action by the legislature.

The Commonwealth Court vacated the WCAB decision and directed a remand to the WCJ to apply the AMA Guides 4th edition standard, ie, the edition of the Guides in effect when section 306 (a.2) was enacted.

Claimant Appeal
On October 16, 2015, Counsel for Protz, Thomas C. Baumann, Esquire, filed a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania.

Protz argues:
1. Section 306 (a.2), as written is unconstitutional.
2. The Commonwealth Court may not salvage this unconstitutional provision by mandating the use of the 4th Edition of the AMA Guides, when the statutory language calls for the use of the" most recent edition".
3. Protz argues the PA Legislature never expressed its intention to require use of the 4th Edition. If this statutory language is unconstitutional, then it must be thrown out, not interpreted or modified.

Employer Appeal
On October 15, 2015, Counsel for Derry Area School District, David H. Dille, Esquire, filed a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania.

Derry argues:
 1. The Commonwealth Court decision is inconsistent with prior appellate decisions which have allowed the Legislature to incorporate evolving standards into laws, without violating this non-delegation doctrine.
2. The Commonwealth Court previously rejected the argument regarding delegation of rule-making to a non-governmental entity. A law is only unconstitutional where there are insufficient guidelines. Here the guides are definite and reasonable.
3. The Commonwealth Court has directed that the "most recent edition" of the AMA Guides are not to be used, rather it directed use of the 4th Edition, on remand of the underlying case. This will impact the ability of physicians to conduct IREs.
4. Third party standards are utilized in a number of statutes, as enumerated by Derry counsel.

Acceptance of a case for Allowance of Appeal to the Supreme Court of Pennsylvania, is a decision made, at the discretion of the court. There is no right to have an appeal heard.

Now we wait for a determination by the court regarding the grant of further appellate review to these parties.


... In the mean time ... the Bureau has directed IRE physician to prepare IREs utilizing the 4th Edition of the AMA Guides.

... Employer counsel are requesting "addendum" reports from the IRE physicians,  including a 6th Edition calculation.

The "gray areas" remain for the IRE cases in pending litigation.
Will the WCJ allow an addendum report?
Will the WCAB remand for an addendum report?

The Commonwealth Court directed this action by its remand order ... but does that ruling just apply to that case ... or to all pending cases?
Legal scholars can continue this discussion.
As a practical matter, if you have a pending case ... call your attorney for legal advice.. 

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