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They’re Back! – Impairment Rating Evaluations Under the PA Workers’ Compensation Act Restored

Impairment Rating Evaluation

I was quoted in the following Lehigh Valley Business articles, Pa. worker’s comp sees changes and Gov. Wolf approves workers comp bill, discussing the passage of House Bill 1840, which restores the use of the impairment rating evaluation (IRE) process in Pennsylvania workers’ compensation cases. Employers have been waiting for almost 18 months to see what the legislature and governor were going to do to address this issue in light of the Pennsylvania Supreme Court’s decision in Protz and we finally have an answer.

On October 24, 2018, Gov. Tom Wolf signed into law House Bill 1840, which restores the use of the impairment rating evaluation (IRE) process in workers’ compensation cases in Pennsylvania. The Pennsylvania Supreme Court, in a June 2017 decision in the case of Protz v. WCAB (Derry Area School District), had declared the prior language of the Worker’s Compensation Act providing for the use of IREs unconstitutional.

Unlike the provisions of the Act that were declared unconstitutional, House Bill 1840 provides that the 6th edition of the AMA Guides to the Evaluation of Permanent Impairment are to be used to perform the IRE. The new legislation also provides that total disability is presumed to continue if the IRE results in an impairment rating equal to or greater than 35%; under the prior terms of the Act, the threshold was 50%.

House Bill 1840 became effective immediately upon the governor’s signature. For now, a process again exists to cap the number of weeks an employee is entitled to workers’ compensation benefits; it is a simpler, less expensive, less time-consuming, and more certain method of changing an employee’s status from total to partial disability.

Some of the questions that remain are:   Will the injured workers’ bar again challenge the constitutionality of the new provisions of the Act on the basis that the use of the AMA Guides is still an unconstitutional delegation of legislative authority, even though a specific edition of the Guides is now required to be used by law?  What effect, if any, will the provisions of House Bill 1840 have on claims to which the Protz decision is applicable?  To what extent is House Bill 1840 applicable to injuries occurring between the date of the Protz decision and October 24, 2018?

If you have any questions about the information contained in this blog or any other questions related to workers’ compensation law, please feel free to contact Barbara Hollenbach at bhollenbach@norris-law.com