Protz v WCAB – What Does It Mean for My Case in Pennsylvania?

IRE stands for Impairment Rating Evaluation, a physician-performed evaluation of whole body impairment as related to disability claims in the state of Pennsylvania. It used to be requested after an injured employee received 104 weeks, or two years, of total disability compensation. IREs, however, have been determined unconstitutional after a recent Pennsylvania Supreme Court ruling on Protz v. WCAB (Derry Area School District) on June 20, 2017. Individuals currently receiving or filing for worker’s compensation need to know how these changes impact them and their disability claims.

Nature of an IRE

An IRE was a medical evaluation performed by a physician appointed by the Bureau of Workers’ Compensation. It required a physician licensed in Pennsylvania who was also certified by an American Board of Medical Specialties- approved board or an osteopathic equivalent. The physician must have been active in a clinical practice at least 20 hours per week.
The physician would seek to determine the claimant’s level of whole body impairment using the latest version of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guide). The claimant would be assigned a whole body impairment level rating.

Purpose of IRE

The original purpose of the IRE was to determine the level of disability in an effort to limit the liability of insurance companies. This rating would have to be requested within 60 days of the claimant receiving a cumulative 104 weeks of total disability compensation in order to facilitate an easy change from total disability status to partial disability status. A different evidentiary route would be involved if the request was not made in time.

If the IRE rating indicated less than 50 percent impairment, the claimant would be categorized as partially disabled. The amount of weekly or by-weekly benefit payments would not be changed, but there is a 500 week (or approximately nine and a half year) limit on the length of time partial disability compensation must be paid per claim. The vast majority of claimants come nowhere near the 50 percent impairment level, making this particular law unfavorable to injured workers but beneficial to insurance companies.

What Happened

In Protz v. WCAB (Derry Area School District), the claimant was evaluated using the sixth edition of the AMA Guide. The problem was that using newer editions of the AMA Guide amounted to, in the eyes of the Supreme Court, an unconstitutional delegation of legislative power under Article II, Section 1 of the Pennsylvania Constitution. The language “using the most recent edition” of the AMA Guide was impermissible delegation of legislative authority. The lower court determined that the fourth edition of the AMA Guide should have been used, but The Pennsylvania Supreme Court felt that particular section of the act was invalid and unconstitutional. Section 306(a.2) was stricken from the law, which means that IREs can no longer be performed.

The Pennsylvania Workers’ Compensation Bureau issued the following statement after the ruling:

On June 20, 2017, the Pennsylvania Supreme Court issued its decision in Protz v. WCAB (Derry Area School District), Nos 6 WAP 2016, 7 WAP 2017, holding that Section 306(a.2) of the Workers’ Compensation Act (77 P.S. § 511.2) is an unconstitutional delegation of legislative authority. The Court’s opinion makes clear that the entirety of Section 306(a.2) is unconstitutional. Therefore, effective immediately, the Bureau of Workers’ Compensation will no longer designate physicians to perform Impairment Rating Evaluations.

What It Means For Workers’ Compensation Claimants

IREs are currently a thing of the past and are not being used. If you have not reached a cumulative 104 weeks of total disability benefits yet, then you no longer need to worry that an IRE rating could cause your disability status to be transitioned as discussed above.

Now an interesting issue arises: what if you are one of the claimants whose status was transitioned from total disability to partial disability because of an IRE rating? It may be that you lost your compensation through a process now considered unconstitutional. There has been no defined indication from the Pennsylvania Supreme Court regarding how such questions will be handled. There remains the distinct possibility that you may be able to petition for your benefits to be restored.

Impairment Rating Evaluations (IREs) are Back!

In October of 2018, Act 111 was passed amending the Pennsylvania Workers’ Compensation Act to to re-institute Impairment Rating Evaluations (IREs). This law is brand new and is being challenged as unconstitutional and in violation of the rights of workers who were injured before the passage of this legislation. It is way too soon to determine whether this new law will withstand the multiple challenges that are expected. It is important to challenge IREs and requests for IRE exams early on. This ever evolving area of Pennsylvania Workers’ Compensation law is very complicated and it is essential to have experienced legal representation to help you navigate all of the potential traps. If you have received a request for an Impairment Rating Evaluation, call me and I will help you understand whether you have to attend and how attendance/or non-attendance will effect your rights.


If you were one of the claimants who was transitioned to partial disability through the unconstitutional IRE process, contact me – Geoffrey Hillsberg – right away to schedule a free consultation. I am committed to fighting for the rights of my clients and providing them with the best representation possible. I am also very experienced at coordinating with any other lawsuits that may arise from the accident involved. Workers compensation cases have been my specialty for over twenty years, and I am intimately familiar with the law as well as the processes that need to be followed and the issues that can arise. Let me help you make sure that an unconstitutional process does not rob you of the worker’s compensation that you are legally entitled to.

The advice offered above is general in nature and may not be applicable to every case. Consultation with an attorney is highly recommended. Reliance on this advice does not represent the formation of an attorney-client relationship in the absence of a fee agreement with Mr. Hillsberg.

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Fill out the form with a brief description of your situation or call me at (610) 566-0600 and I’ll be in touch to schedule a free consultation.


Get in Touch

Fill out the form with a brief description of your situation or call me at (610) 566-0600 and I’ll be in touch to schedule a free consultation.