At oral argument over the constitutionality of a Pennsylvania Workers’ Compensation Act provision that requires the incorporation of “the most recent edition” of the American Medical Association guidelines for evaluating claimants’ impairment ratings, several justices questioned the legislature’s decision to give a private group such wide latitude to shape state law.

In the case that may inspire constitutional attacks in other jurisdictions, Protz v. Workers’ Compensation Appeal Board (Derry Area School District) centers on the issue of whether Section 306(a.2) of the Pennsylvania act violates Article II, Section 1 of the Pennsylvania Constitution by delegating the legislature’s lawmaking authority to the AMA and allowing it to set the criteria for workers’ compensation adjudications.

In a deeply divided en banc ruling in Protz, the Commonwealth Court found that the requirement that impairment ratings be determined under the most recent edition of the AMA Guides to the Evaluation of Permanent Impairment left “unchecked discretion completely in the hands of a private entity.”

“The General Assembly has failed to prescribe any intelligible standards to guide the AMA’s determination regarding the methodology to be used in grading impairments,” Judge Dan Pellegrini wrote for the 4-3 majority. “Section 306(a.2) of the act is wholly devoid of any articulations of public policy governing the AMA in this regard and of adequate standards to guide and restrain the AMA’s exercise of this delegated determination by which physicians and [workers’ compensation judges] are bound.”

But the Commonwealth Court did remand the case to apply the fourth edition of the AMA Guides. Pellegrini said in his opinion that the fourth edition was the most recent version of the guides available when the Workers’ Compensation Act was enacted in 1996 – there have been two revisions since – and therefore the legislature adopted the methodology in that edition as its own.

During a Nov. 1 oral argument session before the state Supreme Court in Pittsburgh, counsel for both sides were peppered with questions from the justices about whether the legislature imbued the AMA with too much unchecked power.

“Doesn’t the legislature of Pennsylvania have the obligation to look each year at the AMA guidelines and decide whether to use that by reference or not, rather than to just defer to the AMA for the most recent explication on the issues?” Justice Debra Todd asked Thomas C. Baumann, counsel for plaintiff Mary Ann Protz.

Baumann agreed, but noted that revisions to the guidelines come out roughly every five to 10 years, so the burden on the state to review them would be relatively light.

Justice Christine L. Donohue asked Baumann whether his position was that the legislature could rely on a private group to develop standards as long as there was an “intermediate step” in which a governmental agency reviewed those standards and recommended whether to adopt them.

“The position is that the basic policy choices have to be made by the legislature and there have to be some guidelines for the exercise of the delegation,” Baumann said.

Baumann’s opposing counsel, David Dille, representing the Derry Area School District and its workers’ compensation carrier, argued that the legislature correctly left it to a group of medical experts to set the guidelines for medical evaluations in Pennsylvania.

Donohue, however, said the Workers’ Compensation Act “ties the hands” of medical experts who may disagree with the AMA guidelines.

“It does not, for example, allow for a physician to say, ‘I don’t like the AMA standards and you want to know why? Because it doesn’t take into account certain factors that go to the essence of determining an impairment or a disability,'” Donohue said. “It’s not as though it’s not possible to do this without delegating all these policy decisions to a private entity.”

Justice Max Baer, however, said that if a party disagrees with a doctor’s conclusion following an impairment rating examination, the party could hire an expert to offer a differing opinion and it would be up to a workers’ compensation judge to make the ultimate determination.

Dille said that’s what happened in Protz. “There were different opinions … and the judge made determinations with respect to the interpretation of the AMA impairment guides,” Dille said.