Last June the Pennsylvania Supreme Court dealt an important and justified win for injured workers in Protz v. WCAB (Derry Area School District). The High Court determined that the impairment rating provisions of the Pennsylvania Workers’ Compensation Act are unconstitutional in their entirety. In so doing the Court wiped out a section of the Workers Compensation Act used by insurance companies to limit the duration of long-term and permanent disability claims.
As anticipated to some degree, the overwhelmingly conservative Pennsylvania legislature now seeks to resurrect the impairment rating process. Recently, the House passed H.B. 1840 which seeks to bring back impairment rating evaluations without the previously adjudicated unconstitutional provisions. H.B. 1840, with its memorandum entitled “Protz Workers Compensation Legislative Fix” advertises itself as the legislature’s attempt to prevent significant increases in workers compensation insurance premiums by repealing the subsections of the impairment rating evaluation law found unconstitutional by the Court. The bottom line is that the legislation seeks to bring back impairment ratings to give insurance carriers a tool to unilaterally limit the duration of permanent disability claims to the detriment of the injured work just as they had done prior to Protz.
Highlights of the legislation approved by the House and on its way to the Senate include:
- Impairment ratings can only be requested after the injured worker comes into possession of 104 weeks of total disability benefits (no change);
- Impairment ratings will be conducted by board certified physicians licensed in PA who have an active clinical practice for at least 20 hours per week (no change);
- The physician performing the exam will be selected by agreement of the parties or by the Department of Labor & Industry (no change);
- The injured worker’s impairment rating will be determined using the American Medical Association’s, “Guides to the Evaluation of Permanent Impairment, 6th edition” (the prior unconstitutional law indicated “the most recent edition” of the AMA guides);
- An impairment rating equal to or greater than 35% will result in a presumption that the injured worker remains totally disabled (previously, the threshold was 50%);
- An injured worker found to have an impairment rating of less than 35% will have their disability status modified to partial disability triggering the 500 week partial disability cap on weekly benefits (similar to former law with the slight decrease in disability percentage threshold, as noted above);
- An injured worker may challenge the modification to partial disability status after an impairment rating of less than 35% so long as they produce an impairment rating determination that they carry an impairment of 35% or greater during the 500 weeks of partial disability eligibility (no change).
As of June 22, 2018, H.B. 1840 is before the Senate Labor & Industry Committee. The Committee Officers and voting members can be found at http://www.legis.state.pa.us/cfdocs/cteeInfo/Index.cfm?Code=13&CteeBody=S
We urge all working Pennsylvanians to contact their State Senators and urge opposition to the legislative reform geared toward capping the rights and protections afforded to our most vulnerable llong-termand permanently disabled injured workers.