Impairment Rating Evaluations Declared Unconstitutional

by Norris McLaughlin & Marcus, P.A.

Over 20 years after Section 306(a.2) of the Pennsylvania Workers’ Compensation Act was enacted, employers will no longer be able to limit partial disability benefits to 500 weeks based on an Impairment Rating Evaluation (IRE).  On June 20, 2017, the Pennsylvania Supreme Court issued its opinion in Protz v. W.C.A.B. (Derry Area School District), holding that Section 306(a.2) of the Act, which establishes the procedure to modify an injured worker’s benefits from total to partial disability by way of an IRE, is unconstitutional.  The Court determined that the General Assembly unconstitutionally delegated lawmaking authority to the AMA by requiring physicians to perform IREs under the “most recent edition” of the AMA’s “Guides to the Evaluation of Permanent Impairment.”  It also found that the Legislature did not intend that the Fourth Edition of the Guides, which was the most recent edition in effect when Section 306(a.2) was enacted, was to be used.  As a result, the Court struck Section 306(a.2) in its entirety and reversed the Commonwealth Court’s Order, which remanded the case to the Workers’ Compensation Judge (WCJ) and instructed the WCJ to apply the Fourth Edition of the Guides.

Questions remain regarding the validity of previously-performed IREs and the resulting change in status under various circumstances such as where:

  • a timely IRE request was made, the employee’s status was changed without litigation, and the 500-week period for the payment of partial disability benefits has not run;
  • a timely IRE request was made, the employee’s status was changed without litigation and the 500-week period for the payment of partial disability benefits has expired;
  • a timely IRE request was made, a challenge was filed within 60 days, the WCJ issued a decision changing the employee’s status to partial disability, and, during the litigation, the injured worker did not raise either the non-delegation issue or any other constitutional issue; and
  • a Petition to Modify based on an IRE was litigated, the WCJ issued a decision changing the employee’s status to partial disability, and during the litigation, the injured worker did not raise either the non-delegation issue or any other constitutional issue.

Will the Courts ultimately rule that every injured worker whose status was changed from total to partial disability based on an IRE, except perhaps those who resolved their claims by way of Compromise and Release Agreements, is entitled to reinstatement to total disability? Are there circumstances under which the Court may find that Protz is not applicable because the constitutional challenge was waived? See  Winchilla v. W.C.A.B. (Nexstar Broadcasting), 126 A.3d 364 (Pa. Cmwlth. 2015), appeal denied 130 A.3d 1293 (Pa. 2015) (raising non-specific constitutional challenge to Section 306(a.2) while litigating a Petition to Modify, but failing to assert that the IRE provisions of the Act unconstitutionally delegated legislative authority to the AMA waived the unconstitutional delegation argument).

What, if anything, the Legislature will do in response to the Court’s opinion in Protz is also a question. The opinion leaves open the possibility that a statutory provision naming the specific edition of the Guides to be used in conducting an IRE could withstand constitutional scrutiny.  In the meantime, absent the availability of work with the employer within the injured employees’ physical and vocational capabilities, employers will be required to pursue earning power assessments in an attempt to limit their exposure for workers’ compensation benefits.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Norris McLaughlin & Marcus, P.A. | Attorney Advertising

Written by:

Norris McLaughlin & Marcus, P.A.

Norris McLaughlin & Marcus, P.A. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.