On June 20, the Pennsylvania Supreme Court declared Section 306(a.2) to be unconstitutional under Article I, Section II of the Pennsylvania Constitution pursuant to the nondelegation doctrine in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017). Protz has electrified the workers’ compensation bar.
For 11 years after its enactment in 1996, Section 306(a.2) allowed employers to seek modification of a claimant’s disability status from total to partial and to limit benefits to 500 weeks by requiring the claimant to submit to an impairment rating evaluation (IRE) after 104 weeks of compensation. If the impairment rating was less than 50 percent, modification was automatic if sought within 60 days of the 104 weeks of disability, or modification could be awarded by adjudication if the IRE was requested beyond the 60-day period. Section 306 (a.2) directed that the degree of impairment be evaluated by an appropriately licensed and credentialed physician, pursuant to the “most recent edition” of the American Medical Association Guides to the Evaluation of Permanent Impairment. The Supreme Court in Protz condemned Section 306(a.2) as delegating a “broad and unbridled” authority to the AMA to create a methodology for grading impairments, without prescribed standards to restrain the AMA’s discretion. The court deemed the General Assembly to have passed off de facto control over matters of policy to another branch or body—the AMA. Because the valid provisions of Section 306(a.2) were inseparable from its void language requiring use of the “most recent edition” of the guides, the court struck Section 306(a.2) from the act in its entirety.
