Work-related injuries come in all shapes and sizes, ranging in severity and involving various body parts. Depending on the seriousness of the injury, a worker could be disabled for months, years and, in some cases, forever. While the Pennsylvania Workers’ Compensation Act does not place limitations on the length of time an injured worker can receive ongoing benefits, the act does establish an impairment rating system for individuals who have been receiving total disability benefits for a period of two years.
Once an employee reaches this two-year mark, the insurer can request that the individual attend an impairment rating evaluation (IRE), which is performed by a physician designated by the Pennsylvania Bureau of Workers’ Compensation. After a physical examination is performed and a review of the medical records is completed, the IRE physician makes a determination as to what percentage the injured worker remains impaired. If the individual is found to be less than 50 percent impaired, which is regularly the case, that person can only receive partial disability benefits for a maximum of 500 additional weeks.
One may ask, what rules and regulations can be relied upon to assign an accurate percentage of impairment for individuals with various degrees of injuries? In making these impairment rating determinations, the act requires physicians to follow the most recent guidelines developed by the American Medical Association (AMA), titled Guides to the Evaluation of Permanent Impairment. However, since the AMA is a private organization with absolutely no connection to the Pennsylvania Legislature, there is a strong argument to be made that requiring the use of its guidelines under the act is an impermissible delegation of the legislature’s exclusive law-making power under the Pennsylvania Constitution.
Decades of case law have clearly affirmed the longstanding principle that the legislature is forbidden from delegating its law-making power to any other body or authority. Specifically, Article II, Section 1, of the Pennsylvania Constitution bestows the legislative power in the General Assembly and Article III, Section 18, grants the General Assembly the exclusive right to enact laws regarding work-related injuries. Although an exception has been made in the past where the delegation of power involved public agencies, the AMA is a private organization and, therefore, allowing it to determine liability and eligibility standards for work-related injuries is a clear violation of the state constitution.
At first glance, it may appear that the legislature is simply incorporating relevant sections of the AMA guidelines within the act and that the AMA does not truly have the power to change the workers’ compensation laws in the state.
However, if you look closer, the AMA has actually been given the exclusive power to change the rules with regard to IREs whenever it sees fit. Time and time again, Section 306(a.2) of the act fails to include the actual criteria that is used in establishing specific impairment ratings, but continuously points to and relies on "the most recent edition" of the AMA guidelines.
In 2000, the AMA released the fifth edition of Guides to the Evaluation of Permanent Impairment, which materially changed the standards for IREs under Section 306(a.2) of the act. In 2008, the AMA then released the sixth edition, which changed the standards previously described in the fifth edition.
Think of the bastardization of the legislative process by a private national agency deciding the fate of employers and employers’ rights. There are no legislative hearings or input from the stakeholders in the system. There is no reporting by state agencies such as the Department of Labor and Industry or the secretary of Labor and Industry. Constituents of legislators, the very citizens who elected them, cannot lobby or request their elected official to consider their positions on any amendments or changes to the substantive law. By relying on the AMA’s guidelines and allowing it to issue new editions as it pleases, the legislature has given the AMA the power to amend the act materially each time a new edition of its guidelines is released.
The most troubling aspect of the legislature’s reliance on the AMA guidelines is that it defeats the objective of the act itself. Under the act, injured workers are only entitled to weekly indemnity benefits if they are found "disabled," which means they are unable to earn their pre-injury average weekly wage because of their work injury. The AMA guidelines, on the other hand, focus on the injured worker’s whole-body "impairment" percentage, without taking into consideration whether the individual would continue to suffer a wage loss at the expiration of the allotted 500 weeks.
For example, losing a hand would impair the functioning of both a guitarist and a singer. The singer would eventually be able to return to his or her job and have the opportunity to earn pre-injury wages. The guitarist, however, would never be able to return to his or her past job and may never earn pre-injury wages again. Nevertheless, under the AMA guidelines, both the guitarist and the singer would have the same whole-body impairment percentage and their indemnity benefits would be terminated after 500 weeks without factoring in their respective disabilities. Therefore, the AMA’s focus on impairment and not disability reveals its unsuitability as a yardstick for measuring disability as actually required by the act.
The current system regarding IREs is unconstitutional and must be changed before the AMA issues its next set of new guidelines and changes it for us. •
Sam Pond is a founder and managing partner of the workers’ compensation and Social Security disability law firm Pond Lehocky Stern Giordano and past president of the Philadelphia Trial Lawyers Association. He can be reached at 215-568-7500. Andrew Ruder practices in the area of workers’ compensation at the firm.