Pointing to a recent landmark Pennsylvania Supreme Court ruling clarifying the rules for conducting disability impairment examinations, the Commonwealth Court has reversed a ruling limiting the amount of benefits a disabled man can obtain.
The claimant, Craig A. Bradosky, argued that the Workers’ Compensation Review Board improperly relied on the American Medical Association’s Guides to Evaluation of Permanent Impairment to judge the level of Bradosky’s disability. Bradosky argued that it was the legislature, not the AMA, that must set disability standards.
In doing so, Bradosky claimed the board violated Article II of the state constitution. The Commonwealth Court agreed, citing the Pennsylvania Supreme Court’s ruling in Protz v. Workers’ Compensation Appeal Board, in which the court held that Section 306 (a.2) of the Workers’ Compensation Act was unconstitutional because it gave “unfettered” legislative authority to the AMA.
In her opinion, Judge Renee Cohn Jubelirer cited the high court’s 2017 ruling, which said, “The AMA could add new chapters to the guides, or it could remove existing ones. It could even create distinct criteria to be applied only to claimants of a particular race, gender, or nationality.”
It further read, “Consider also that the AMA could revise the guides once every 10 years or once every 10 weeks. If the AMA chooses to publish new editions infrequently, Pennsylvania law may fail to account for recent six medical advances. By contrast, excessive revisions would likely pose severe administrative headaches, inasmuch as the guides automatically have the force and effect of law once published.”
Jubelirer kept the Commonwealth Court’s ruling simple, in view of Protz: “Because this issue is controlled by Protz, we need not devote a great deal of discussion to it now. Suffice it to say that the Pennsylvania Supreme Court has declared Section 306(a.2) to be an unconstitutional delegation of legislative power and struck the provision in its entirety. As a result, we are compelled to reverse the opinion and order of the board.”
Bradosky’s employer argued that modifying his benefits was still appropriate under the Supreme Court’s order in Kachinski v. Workmen’s Compensation Appeal Board, but Jubelirer disagreed.
“Claimant argues, in response, that employer failed to preserve this issue by not filing a cross-petition for review and, even if the issue was properly before the court, the record is devoid of any evidence to support its application here,” Jubelirer said. “We agree with both arguments. First, the only basis asserted by employer in its modification petition was the IRE. Employer never asserted an alternative basis to modify claimant’s benefits until now, after Protz was decided, dashing any hope it had of success on the merits. Second, as claimant points out, the record was not developed with Kachinski in mind, and therefore, there is no evidence of record upon which to evaluate it.”
Vincent Quatrini of Quatrini Rafferty represents Bradosky and did not return a call seeking comment. Maureen Kowalski of Dickie, McCamey & Chilcote represents Bradosky’s employer, Omnova Solutions, and could not be reached for comment.