A bill that would reinstate impairment ratings for injured workers in Pennsylvania would likely face quick legal challenges if it passes the state Senate and is signed by Gov. Tom Wolf, according to attorneys representing injured workers.

“There’s going to be a fight, of course,” said attorney Michael Cardamone of Blue Bell, Pennsylvania-based Cardamone Law L.L.C., which represents injured workers statewide. “We are trying to push back.”

H.B. 1840, which passed the Pennsylvania House of Representatives on Friday and is now being considered by the state Senate committee on labor and industry, is itself a pushback. It comes nearly a year after the Pennsylvania Supreme Court deemed impairment ratings, which have historically helped employers and workers compensation insurers determine whether a worker is partially or fully disabled based on guidelines set forth in the American Medical Association Guides to the Evaluation of Permanent Impairment, unconstitutional.

Specifically, on June 21, 2017, the state’s highest court ruled that the “General Assembly unconstitutionally delegated to the American Medical Association the authority to establish criteria for evaluating permanent impairment,” according to documents in Protz v. Workers Compensation Appeal Board (Derry Area School District).

Mary Ann Protz suffered a knee injury in 2007 and began receiving temporary total disability benefits from her employer. A physician assigned Ms. Protz a 10% impairment rating based on the AMA guide, after which her employer filed a petition to change her disability status to partial from total to limit the duration of her workers comp benefits.

Ms. Protz later appealed to the Pennsylvania Workers Compensation Appeal Board, arguing that the state’s General Assembly unconstitutionally delegated to the AMA the authority to establish criteria for evaluating permanent impairment. The board rejected this argument, but the commonwealth court reversed that decision on appeal, and the state Supreme Court agreed the provision was unconstitutional.

H.B. 1840 would reinstate the 104-week permanent disability marker for when an insurer can request an impairment rating evaluation and assign the latest draft of the AMA guide, the sixth edition, as the prescribed guide. The proposal also sets guidelines for impairment: 35% impaired or greater equals permanent disability, 35% or lower is partial disability.

The bill would also limit an injured worker’s partial disability rating after 500 weeks, giving insurers an opportunity to seek a medical evaluation based on the current AMA guide.

The bill, as written, is the opposite of what the state Supreme Court ruled, said Mr. Cardamone: “The main problem is the court didn’t like the delegation of authority to a private entity, the AMA. I don’t know how this new bill is going to solve that problem. …The purpose of Protz was that you can’t delegate these types of decision-making to the AMA. If this bill passes, it is going to be challenged pretty quickly by a plaintiff’s attorney.”

“It seems they are trying to get past the (Pennsylvania) Supreme Court ruling,” Edward E. Knauss IV, a Harrisburg, Pennsylvania-based shareholder with Metzger Wickersham P.C., said in an interview. “(Proponents of impairment ratings) are giving the AMA the right to decide what is impairment and what is isn’t ... To just arbitrarily say you are a certain percent impaired (is unfair).”

“Whether the legislation, if passed, will be successful in that regard remains to be seen,” Mr. Knauss said in an email. “As attorneys who represent injured workers in Pennsylvania, we are opposed to any legislation which would limit an impaired worker’s right to receive ongoing benefits.” 

Meanwhile, proponents of the bill say the shift back to impairment ratings is better for businesses.

“We are pleased to see that Pennsylvania’s legislature has taken steps to resolve the issues created by last year’s Protz decision,” Steve Bennett, associate general counsel for the Washington-based American Insurance Association, said in an e-mail. “These legislative reforms strike the right balance between providing benefits for injured workers and managing costs for the business community. We look forward to the bill being passed in the Senate and signed by Governor Wolf.”

The bill’s sponsor applauded the legislative efforts that would “enact needed reforms” to save businesses money, Rep. Rob Kauffman, R-Chambersburg, said in a press statement issued Friday.

“The court decision last year invalidated one of the major cost controls of the workers compensation system that was enacted in the 1990s based on a technicality,” he said in the statement. ”Because of that decision, employers were basically saddled with hundreds of millions of dollars in additional workers compensation costs. This has been a major issue for Pennsylvania’s business community, which was being unfairly impacted by the court’s decision. House Bill 1840 restores the controls in a manner that complies with the law.”