Protz decision (IRE unconstitutionality)

My friends,

I have had a chance to review the Commonwealth Court decision noted above. This decision ruled that the Impairment Rating Exam of the WC Act is unconstitutional I have included a link to the decision so you may read it for yourself – page 16-19 provides the order and it’s reasoning.

Basically, the court ruled that the General Assembly didn’t allow for further regulation review on how to use future AMA editions of the guides. You’ll recall the approved reforms to the WC Act creating the IRE process, only referred to the 4th edition of the guides and future “most current” editions.

The clt argued that were some changes to the guides in future AMA Guides editions which altered the disability determinations. The Courts believe the General Assembly should be required to review, act and approve these changes and a private enity AMA does not have that right.

We are now going to have to sit back and see how the WC community will react to this decision. It should be noted that the instant case was remanded back to the WCAB/WCJ for further findings. In eshence asking the WCJ to rule on disability rating in accordance with the 4th edition of the AMA guides. I assume this will require a new examination, using the 4th edition guides. Having said that; I’m still unsure what will happen on cases where the clt did not appeal the IRE conversions; did they waive the unconstitutional argument by accepting the conversion Or… if the case was heard by a WCJ and awarded the conversion to TPD, did the clt waive his right to contest the unconstitutionality. All questions that need to be answered.

Everyone will have to make that determination within their own operation. Should we go back thru our claim investory and “re-do” IRE exams, asking that they be completed using the 4th edition of the guides. Perhaps we let the clt file a review petition first? Cerainly going forward we should require our IRE examinaer to use the 4th edition.

My Best,
Dennis McKendry
Director of Claims
ACS Claim Service, Inc.