We have been following the status of the Impairment Rating Evaluation (IRE) process in PA closely, ever since the Supreme Court of Pennsylvania declared the IRE process unconstitutional in Protz v. Workers’ Compensation Appeal Board (Derry Area School District). This has included interpretations by the Commonwealth Court of PA in the Whitfield and Timcho cases.
As we long suspected, though, the real response would come from the Pennsylvania legislature. In their ever-present desire to bend to the wishes and desires of the insurance industry, the legislature passed Act 111 (formerly known as House Bill 1840). This was signed into law by Governor Thomas Wolf on October 24, 2018. This immediately reinstates the IRE aspect of the Pennsylvania Workers’ Compensation Act.
Since we have previously discussed what the IRE process involves, we will not again detail that information. If you would like to see more of that discussion, we would suggest reviewing the prior blog entries regarding the Protz, Whitfield and Timcho cases.
Act 111 does not simply reenact the old IRE law (Section 306(a.2)) which was declared unconstitutional by the Supreme Court of Pennsylvania. Indeed, since the Court already spoke on that issue, the legislature could not have done so. Rather, the legislature attempted to cure the defect in the old IRE law by having the IRE performed based on the American Medical Association “Guides to the Evaluation of Permanent Impairment,” 6th Edition (the unconstitutional version allowed the “most recent” edition of such Guides). The new Section is 306(a.3).
The only positive coming from Act 111 is that the threshold to retain total disability status has been decreased from the ridiculously high 50% down to the only moderately ridiculous 35% level. This still requires a far higher standard than would realistically reflect a person who is truly totally disabled.
Many questions still remain, however. The most pressing is what this means for periods of partial disability which have allegedly expired due to a previous IRE (under the old law), and whether a new IRE is required to be performed for the new law to change the status. Considering that the old law was struck from the PA Workers’ Compensation Act by the Supreme Court of PA, attorneys for injured workers, like us, feel the answer is obvious – anything done under a constitutionally-defective law is now void. Whether the Courts agree with us remains to be seen.