On June 20th , the Pennsylvania Supreme Court held that Section 306(a.2) violated the non -delegation doctrine and that Section 306(a.2) is unconstitutional in its entirety.

The section of the PA code held to be unconstitutional provides:

The degree of impairment shall be determined based upon an evaluation by a physician who is licensed in this Commonwealth, who is certified by an American Board of Medical Specialties approved board or its osteopathic equivalent and who is active in clinical practice for at least twenty hours per week, chosen by agreement of the parties, or as designated by the department, pursuant to the most recent edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment.”

In its decision the court reasoned that the legislature could not delegate its duty to provide policy direction with respect to the determination of impairment and presumably disability to a third party. The delegation to the most recent edition of the AMA Guides delegated too much discretion and authority to a third party.

Instead of simply holding that the most recent AMA Guide edition delegation was unconstitutional the court chose to find the section unconstitutional in its entirety.

The court ignored the fact that the legislature provided very clear legislative language tied to the policy that a determination of a Board certified medical specialist active in clinical practice using the most recent edition of the AMA Guides should be presumed as an indication of impairment percentage.

In this writer’s opinion, the statutory language did not delegate authority to the AMA to make the determination and did not even delegate authority to an individual physician to determine whether an individual is partially or totally disabled. It only established a standard for determination of percentage of impairment that was reasonable and based on medical evidence provided by medical professionals. The court failed to distinguish the determination of medical impairment (best left to medical professionals) from the legal determination of disability.
Unfortunately, this case will now be cited in other state jurisdictions as persuasive authority, as precedent in Pennsylvania, and create uncertainty with respect to the standard for determination of impairment and disability in Pennsylvania. The Commonwealth of Pennsylvania Department of Labor has issued a statement on its website effective immediately, that the Bureau of Workers’ Compensation will no longer designate physicians to perform Impairment Rating Evaluations.

A legislative response is being considered by the business community in Pennsylvania.