Back in 2017, we shared the exciting news (hey, we attorneys have a unique sense of excitement!) that the entire Impairment Rating Evaluation (IRE) section of the Pennsylvania Workers’ Compensation Act (Act) was declared unconstitutional by the Supreme Court of PA (The Protz case) and stricken from the Act. This, of course, stopped attempts by the insurance industry to get an IRE at all.
Not able to live with themselves in a world without IREs (oh, the horror), the Pennsylvania legislature passed Act 111. This brought back the IRE process, albeit with a specific identification of which version of the Guides to the Evaluation of Permanent Impairment, put forth by the American Medical Association, need be used (the failure to so identify was largely the reason the prior IRE law was stricken). Act 111 also lowered the threshold for continued total disability from 50% to 35% whole body impairment (for a better explanation of the IRE process, see our website).
Recently, the Commonwealth Court of PA addressed to what extent Act 111, which was enacted on October 24, 2018, would be retroactive. The case of Rose Corporation v. Workers’ Compensation Appeal Board (Espada) involved a work injury of September 6, 2006. On May 22, 2013, the insurance carrier had obtained an IRE under the old (stricken) IRE law. The IRE used the correct edition of the AMA Guides, and found a whole body impairment rating of less than 35%. As a result, the insurance carrier wanted to use the 2013 IRE to obtain a change of benefit status, from total to partial, under Act 111.