Workers’ compensation lawyers in Pennsylvania and elsewhere are waiting nervously for the Supreme Court to make its ruling in the renowned Protz case. See Protz v. W.C.A.B. (Derry Area School Dist.),124 A.3d 406 (Pa. Commw. 2015), appeal granted, 124 A.3d 406 (Pa. 2016). The big issue – will the court really accept the claimants’ advocacy that the legislature had no ability to adopt the AMA Guides?
So some background …. Many state laws provide that awards of permanent disability are to be based on impairment ratings derived by the American Medical Association manual, Guides to the Evaluation of Permanent Impairment. Workers have, over the years, mounted constitutional challenges to the ability of legislatures to adopt the Guides by reference. See Steven Babitsky & James J. Mangraviti, UNDERSTANDING THE AMA GUIDES IN WORKERS’ COMPENSATION, FIFTH EDITION, p.3-1 et seq. (5th ed., 2015 Supp.).
In 2015, such a challenge was successful, as a middle-level Pennsylvania court (the Commonwealth Court) held that the law’s proviso that the impairment rating evaluation (IRE) physician is to utilize the “most recent edition” of the Guides was violative of the Pennsylvania constitutional provision forbidding “unconstitutional delegation of authority,” found in the constitution at Article II, Section 1.
(As to the statute, see Section 306(a.2) of the Pennsylvania Workers’ Compensation Act, PA. STAT. ANN. tit. 77, § 511.2.)
The Workers’ Compensation Judge on remand was to utilize not the Sixth Edition but, instead, the Fourth – that is, the edition which existed when the IRE statute was enacted in 1996. The court noted that the Pennsylvania Constitution provides, at Article II, Section 1, “the legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” This provision embodies “the fundamental concept that only the General Assembly may make laws, and cannot constitutionally delegate the power to make law to any other branch of government or to any other body or authority.”
As foreshadowed above, the Pennsylvania Supreme Court accepted the case on appeal, and oral argument was held on November 1, 2016.
No consensus seems to exist on how the court will rule.
The court could affirm the Commonwealth Court, and we in Pennsylvania would hence revert to use of the Fourth Edition. Or, in a dramatic gesture, the court could indeed completely jettison the AMA Guides. This speculation is fueled by Chief Justice Saylor’s obvious dislike of the manual. Indeed, in a decision filed in January, the Chief Justice quoted Dr. Nortin Hadler’s memorable critique when he ventured, “we note that the approach of tying the continuation of disability benefits to impairment rating protocols has been decried by many physicians and characterized as ‘unappealing, if not Orwellian’ in commentary.” See Duffey v. W.C.A.B. (Trola-Dyne, Inc.), ___ A.3d ___ (Pa., filed Jan. 19, 2017). See
In any event, a veteran workers’ compensation lawyer has speculated to me, “they [the Court] [must] not have a majority for any view regarding Protz yet… If the Chief Justice can get three other votes, I think it gets thrown out lock, stock and barrel …. Then it will be a fight to the death in the legislature to get something the current administration will agree to.”