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May 15, 2015

Recently, the law firm of Abes Baumann participated in an en banc argument before the Commonwealth Court involving a challenge to the constitutionality of a portion of the Pennsylvania Workers’ Compensation Act. In the case of Protz vs. WCAB, Tom Baumann argued that the use of the American Medical Association Guides to the Evaluation of Permanent Impairment to determine whether or not an injured worker converts from total disability to partial disability of Workers’ Compensation benefits constituted an unconstitutional delegation of authority by the Pennsylvania State Legislature.

If an injured worker received 104 weeks of total disability benefits, the employer/insurance carrier can compel the injured worker to submit to a rating examination. The injured workers’ whole body impairment is evaluated under the AMA Guides. If the whole body impairment comes out as less than 50%, compensation can be converted from total disability to partial disability merely by sending a form to the Claimant if the examination is requested within a certain time frame. The AMA Guidelines change over time, being reissued approximately every seven (7) years. When the State Legislature amended the Workers’ Compensation Act in 1996 to mandate use of the Guides, the 4th Edition of the Guides was in effect. The language of the law stated that when an examination is performed, it shall be done under the most recent version of the Guides. Commonwealth Court has interpreted that to mean that the examining physician should use the Guides that are in effect at the time of the evaluation not at the time the law was originally passed. Since the Guides change without any input from anyone affected by the Guides, including injured workers and employers and insurance companies, Abes Baumann argued that this was unconstitutional as the legislature could not adopt the future work product of the AMA sight unseen.

The Commonwealth Court has taken significant interest in the argument as it scheduled an en banc argument meaning 7 of the 13 Judges sitting on the Court participated in oral argument. No matter what happens, the issue is likely to end up at the Pennsylvania Supreme Court. Interested readers may watch the video of the oral argument here.