On October 17, the Pennsylvania Senate signed the previously approved House Bill 1840, known as the “Protz Workers’ Compensation Legislative Fix,” which is expected to be signed into law by Governor Tom Wolf within the next several days.
Why is a “Protz Fix” necessary? Employers in Pennsylvania suffered a major blow, when the Impairment Rating provisions of Act 57, were invalidated by the Pennsylvania Supreme Court in the 2017 case of Protz v. WCAB. The Impairment Rating Evaluation (“IRE”) process reduced WC costs by limiting temporary total disability benefits (“TTD”) to 104 weeks, so long as the degree of impairment under the American Medical Association Guidelines to the Evaluation of Permanent Impairment was less than 50%. The Supreme Court in Protz found that the IRE provisions were an unconstitutional delegation of legislative power under Article II, Section 1 of the Pennsylvania Constitution, since impairment was to be determined “pursuant to the most recent edition of the AMA Guidelines to the Evaluation of Permanent Impairment.” The AMA Guidelines are revised every few years, and accordingly, the Court found that the Impairment Rating provisions allowed the measurement standards for impairment to “automatically” change every few years, without any ongoing legislative oversight.
The Protz Fix, which hopefully will be signed by Governor Wolf, corrects this problem by specifying the use of the Sixth Edition of the AMA Guidelines. In a compromise gesture to injured workers, the Bill would also lower the impairment threshold from 50% to 35%, for entitlement to ongoing TTD benefits.
Although the Protz Fix, if signed, will certainly be challenged by plaintiff attorneys, the new law would seem to satisfactorily address the Constitutional concerns raised by Protz.
We will keep you posted concerning further developments and naturally, if you have any questions or concerns, please contact a member of our WC group, including Denise Elliott, Micah Saul or Paul Clouser.