On October 24, 2018 the Governor of Pennsylvania approved former H.B. 1840 and enacted Act 111, which provides a fix to the State Supreme Court Decision of Protz v. Derry Area School District, 161 A.3d 827 (Pa. 2017) (“Protz II”) which on June 20, 2017 invalidated the entire Impairment Rating Evaluation process(Section 306(a.2)) of the PA Workers' Compensation Act (WCA). IREs have been in place since 1996 when significant changes were made to the WCA by way of Act 57. IREs provide a structured process for Commonwealth-designated physicians to determine an injured workers’ percentage of whole body impairment and limit the duration of payment of wage loss benefits.
As a result of the holding in Protz II, the PA Compensation Rating Bureau took the unprecedented action of filing for a mid-year loss cost increase which industry experts have estimated will cost PA employers $300 million per year in higher insurance costs.
Act 111 was enacted on October 24, 2018, effective immediately, and reinstates the IRE process with key components of the bill including:
We do have concerns as to whether use of the 6th Edition of the AMA Guides for determining impairment can survive a constitutional challenge. The Supreme Court addressed the issue of delegating the legislative role to a private entity in Protz II as follows:
The law, as written, strips IRE physicians of discretion and requires rigid allegiance to an impairment standard created and maintained by a private entity.
This could be problematic should a challenge be initiated.
In short, Act 111 will reinstate a statutory tool that will permit PA employers to limit indemnity exposure on Workers' Compensation claims that may otherwise remain open with ongoing total disability with little prospect of settlement or claim mitigation through other statutory options. We believe the credit provisions are significant and provide for an important consideration for employers evaluating when an IRE is ripe and when the statutory 500 weeks of maximum partial disability has been reached. Now that Act 111 has been enacted, it should be a helpful development for PA employers in their ongoing battle to limit Workers' Compensation costs. It may also provoke a constitutional challenge.
Chartwell Law will follow this new law closely and offer practical claims handling strategies for employers. Further, Chartwell attorneys have handled many of the Protz II cases before the WCJ’s the Appeal Board and the Commonwealth Court so we are prepared to offer further analysis and practical guidance to clients on all the issues that might arise from the legislative fix to the Supreme Court’s Protz II Decision.