05/10/2016

Client Alert

Written by: John E. Marquis, Esq.

As has been widely publicized, the Commonwealth Court threw the use of Impairment Rating Evaluations by Employers into frustrating disarray with its decision in Protz v. WCAB. In short, Protz held that the use of the 6th Edition of the AMA Guides to the Evaluation of Impairment (Guides) in the performance of Impairment Rating Evaluations (IRE’s) is unconstitutional, although use of the 4th Edition of the Guides is permissible. The case is now on appeal to the Pennsylvania Supreme Court. The claimant’s appeal seeks to have the entire statutory scheme for use of IRE’s determined as unconstitutional. Potential alternate outcomes from the appeal vary, including reversal which may validate the use of the 6th Edition of the Guides or affirmance that will limit the current IRE’s to use of the 4th Edition.

While Protz remains on appeal, for cases in which a claimant has not yet attended an IRE evaluation, we recommend that Employers request that the IRE physician provide determinations utilizing calculations under both the 4th and 6th Editions of the Guides. However, to the extent that physicians are performing IRE’s by designation from the Bureau, as occurs in most cases, the Bureau is apparently providing instructions to the IRE physicians that their report and impairment rating must be provided pursuant to the 4th Edition alone. Such instructions should not preclude Employers, once the IRE report is issued using the 4th Edition, from requesting that the examiner provide a supplemental report which calculates the impairment rating under the 6th Edition based upon the findings of the same examination date. In such cases, Employers would likewise be well served to confirm that the examining physician has been qualified to perform IRE’s pursuant to the 6th Edition of the Guides. Also, the addendum IRE reports will likely entail an additional expense and may not be warranted in all cases. 

Finally, the Employer’s request for an initial IRE, in appropriate cases after paying 104 weeks of total disability benefits, should be timely to address the likelihood of claimants seeking to expand the description of their work injury in advance of an IRE, a prospect heightened by the recent holding in the case of Duffy v. WCAB. The Commonwealth Court in Duffy held that a claimant’s post IRE Review Petition that results in a subsequent change in the description of injury does not invalidate the earlier IRE determination. Therefore, Employers should be attentive to the increased likelihood for advance filings of such Review Petitions.

About the Author

John E. Marquis is a partner in the Yardley, Pa. office of Hill Wallack LLP. He is a member of the Workers’ Compensation practice group. Mr. Marquis successfully represents Pennsylvania employers, both insured and self-insured, such as health care providers, behavioral health facilities, education and human services, in-home care providers and manufacturers. Mr. Marquis can be reached atjmarquis@hillwallack.com.


About Hill Wallack LLP

Founded in 1978, Hill Wallack LLP is a leading law firm with offices in Princeton and Morristown, New Jersey and Yardley, Pennsylvania. Our regional strength places us in an ideal position in today’s market. With nearly 70 lawyers, our mid-market size allows us to provide sophisticated, high-level service to clients in a cost-efficient, responsive manner.Our attorneys are called upon to tackle some of the toughest legal and business challenges. 

The firm represents businesses, nonprofit and government entities, and individuals in litigation, transactional and regulatory issues. The firm also includes those skilled in family law, trusts & estates, tax liability and other areas of individual service. For more information, please visit www.hillwallack.com.