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IRE: A Glance at Recent Developments

On Behalf of | Mar 31, 2017 | Firm News, Workers’ Compensation

In recent years, there has been a considerable uptick in the volume of case law which has been handed down regarding Impairment Rating Evaluations (IREs).

Under Section 306(a.2) of the Workers’ Compensation Act, 77 P.S. § 511.2, after receiving 104 weeks of total disability benefits, at the employer’s request, a claimant must submit to a medical evaluation (i.e., an IRE) to determine the percentage of impairment.  If the IRE rating is equal to or greater than 50 percent, claimant shall be presumed to be totally disabled.  If the total impairment rating is less than fifty percent, claimant may be considered to be partially disabled.  To seek a unilateral modification from total to partial disability, the request for an IRE must be made within 60 days from the date that the claimant receives 104 weeks of total disability benefits.    An employer may still seek modification of benefits from total to partial based on the IRE after the 60 day window, but the normal administrative process for obtaining a modification of benefits applies.

This section of the Act further states that the percentage of impairment shall be determined “pursuant to the most recent edition of the American Medical Association Guides to the Evaluation of Permanent Impairment,” which, at the time of enactment, was the Fourth Edition.

The following is a survey of the recent case law interpreting this section of the Act:

Logue v. WCAB (2015) – The Commonwealth Court held that an employer does not have to seek agreement from the employee as to an IRE physician before requesting designation by the Bureau.

Protz v. WCAB (2015) – The Commonwealth Court determined that language requiring use of “the most recent edition of the American Medical Association Guides to the Evaluation of Permanent Impairment” was unconstitutional.  As such, the percentage of impairment was to be evaluated according to the Fourth Edition of the Guides.  NOTE: This case has been appealed and is presently pending before the Pennsylvania Supreme Court.

IA Constr. Corp. v. WCAB (2015) – A WCJ may not reject the opinions of an IRE physician on the basis that the injuries are not within the physician’s specialty.  Further, in order to determine an IRE to be insufficient, there must be supportive, contradictory evidence in the record.

Neff v. WCAB (2015) – Whether an employee has reached maximum medical improvement is a medical determination which must be determined by medical testimony.  The possibility of a potential surgery does not preclude a finding that an employee has reached maximum medical improvement.

Verizon Pa., Inc. v. WCAB (2015) – The employer sought to modify a total disability determination after the 60 day window and obtained an IRE. The Commonwealth Court held that the WCJ did not err in denying the employer’s modification petition on the ground that the employer failed to establish that the claimant’s whole body impairment rating was less than 50 percent. The WCJ could properly consider and weigh the evidence of the treating physician.

Riley v. WCAB (2016) – Claimant filed a petition to amend the NCP to include additional injuries and asserted that the IRE physician failed to consider the full extent of claimant’s injuries. The Commonwealth Court determined that the WCJ was within his fact-finding capacity in rejecting the testimony of the treating physician and in refusing to expand claimant’s work injury. The Court also reiterated that claimants have 60 days to challenge a reduction in disability benefits, holding that Protz did not expand this window.

Beasley v. WCAB (2016) – An IRE was performed using the 6th Edition of the Guide.  The Commonwealth Court remanded the case to the WCJ with an instruction to determine if the Fourth Edition and the Sixth Edition of the AMA Guides were different with respect to the injuries at issue and, if so, to receive testimony as to the impairment rating based on the Fourth Edition of the AMA Guides.

Duffey v. WCAB (2017) – The Pennsylvania Supreme Court was asked to examine whether an IRE was valid when it only considered the injuries listed on the Notice of Compensation Payable issued at the time of injury, and did not consider additional injuries that subsequently arose and were known at the time of the IRE, but not yet formally added to the description of injury.  The Court held that the WCJ properly reached the determination that the IRE, which failed to consider subsequently asserted injuries, was not valid.  The Court held that IRE physicians must exercise independent professional judgment to make a whole-body assessment of the degree of impairment due to the compensable injury.  The assessment cannot be limited on the basis that the physician-examiner believes the undertaking is a more limited one.  In other words, the IRE physician must exercise independent professional judgment and, therefore, consider all conditions that the physician believes are related to the worker’s work-related injury, not just those that are designated in the NCP.

Overall, the recent case law has created some uncertainty regarding Section 306(a.2) of the Act.  The two primary areas of concern include: 1) which Edition of the Guides to use in determining an IRE (Protz); and 2) the extent to which an IRE physician must consider potential conditions beyond those listed in the NCP (Duffey).  As to the first point, it appears that IREs should be made based on the 4th Edition, but to shield against potential future developments, it is advisable to determine an IRE under both the 4th and 6th Editions.

As to the latter point, Duffey has seemingly expanded a claimant’s ability to challenge an IRE by asserting that a condition was not considered by the IRE physician, even if it was not previously identified.  Until there is further clarification from the Court, it would be advisable for an IRE physician to consider all of claimant’s conditions, note whether they are related to the worker’s work-related injury, and ensure that the IRE is based on all conditions that the physician believes are related to the worker’s work-related injury, irrespective of whether any given condition is listed in the NCP.

For a confidential analysis of your workers’ compensation issues, or questions about TRC’s workers’ compensation practice area, please contact Harry Rosensteel, Esquire at (412) 316-8686 or [email protected], or Margaret M. Hock, Esquire at (412) 316-8647 or [email protected].

Important NoticeThis information is intended for general guidance only, and should not be used as a substitute for specific legal advice.  For specific legal advice applicable to your situation, you should consult an attorney of your choice.  Although believed to be accurate when written, no guarantee of completeness or accuracy to your particular circumstances should be implied.  Laws, regulations, and court decisions in this area change frequently, and you should consult the attorney of your choice for up-to-date information.