The Pennsylvania House passed legislation on Friday, June 22, that will reinstate the IRE provisions of the Act for new claims. The new law corrects the problem with the stricken IRE provisions, which contained a section that allowed the IRE standard to automatically change whenever the AMA changed its guidelines. The new legislation, which must still be passed by the Senate and approved by the Governor, is welcomed by employers, who were facing a reported annual increase of $165 million in insurance costs following the June, 2017 Protz decision that effectively invalidated IREs. While the final outcome of the bill remains uncertain, several media sources have suggested that it is likely to become law.
As often is the case in politics, there was a trade-off: the new bill reduces the IRE threshold from 50% to 35%. At first glance, we do not expect the reduction to have a significant impact, as the vast majority of IREs fall well below 35%. Based on prior experience, the reduction in the threshold should affect less than 10% of those cases that reach the point where an IRE becomes a viable option to reduce liability. Nonetheless, only time will tell whether the lower threshold opens the door for medical experts to contest IREs in greater numbers.
This new legislation represents the best hope for employers to resolve the IRE crisis moving forward. This legislation does not appear to impact existing claims, and the Courts will still need to determine the final status of the IREs in these cases. Nonetheless, while the hand wringing may continue over past claims, employers are one step closer to a long term solution.
By: Robert W. Elias, Esq. – Elias Mickle Kennedy LLC
