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So, which “I” do you pick, do you check the IME box, or do you check the IRE box?
Starting over, if you are dealing with an open workers’ compensation claim, in which liability has been accepted by the Employer/Insurer/Administrator, with either the issuance of a Notice of Compensation Payable (“NCP”), or a Notice of Temporary Compensation Payable (“NTCP”), that has “converted” to a liability-accepting NCP, under which an obligation now exists for continuous payment of workers’ compensation benefits in the form of temporary total disability benefits, required to be paid to compensate for wage loss-producing disability, and medical compensation benefits, subject to reasonableness, necessity, and causal relationship to the accepted work injury benefits will have to be paid, absent one of the following claim-resolving events occurring:
(1) The Claimant dies, compensation benefits terminate by operation of both death and loss;
(2) The Claimant voluntarily returns to work in their pre-injury capacities, and there is no continuing wage loss post-return to work, such that the Claimant’s compensation benefits are suspended;
(3) The Claimant returns to work in a modified-duty capacity, with some reduction in return-to-work wages, such that the Claimant’s compensation benefits are modified, and temporary partial disability benefits are paid, subject to the 500 week limitation;
(4) The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;
(5) The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;
(6) The Claimant is deported by virtue of not being able to prove legal immigration status;
(7) The claim is settled under a Compromise and Release Agreement, perfecting some type of compromise of the indemnity and medical compensation benefits liability associated with the claim; and,
(8) The Claimant’s compensation benefits are terminated, modified, or suspended by order of a workers’ compensation judge, with the employer/insurer carrying the burden of proving the entitlement to a change in the Claimant’s benefit entitlement status.
Present tense, workers’ compensation benefits are now being paid on the claim, and if you are interested, as an Employer, or Administrator, or as a claims representative, to resolve the claim in avoidance of lifetime liabilities that might otherwise be imposed by the Pennsylvania Workers’ Compensation Act, 77 P.S. 1, et seq., what defensive resources are at your disposal?
Given the blatant humanitarian nature of workers’ compensation statutes, effectuating the “grand bargain”, where the employee has statutorily sacrificed the right to sue for personal injury damages, requiring proof of negligence and/or fault, in exchange for the guarantee of compensation schedules, as to wage loss benefits, and medical compensation benefits, etc., the Pennsylvania Workers’ Compensation Act, as in almost all other states in the United States, provides Employers and their Insurers and Administrators with limited resources to challenge ongoing liability for workers’ compensation benefits, typically limiting the resources to the following challenges:
· A claim denial, requiring the injured employee to prove compensability and disability;
· The utilization review process, to challenge the reasonableness and necessity of ongoing medical treatment for the alleged work injury;
· The independent medical examination, allowing the Employer/Insurer to request an IME of the Claimant, allowable every six months under Section 314 of the Act, typically focused on determining an injured employee’s recovery from the work injury, be it a full recovery, permitting a challenge to the ongoing entitlement to any workers’ compensation benefits being paid on the claimant, or to a recovery sufficient enough to allow an injured employee to return to work in some restricted-duty capacity, obviously subject to restricted-duty work either being available from the time of injury Employer, or alternative restricted-duty work being available, either through a Labor Market Survey (“LMS”) and/or Earning Power Assessment (“EPA”);
· A job offer in some capacity, offered by the time of injury Employer, after medical evidence establishes that the injured employee is capable of performing some level of work, be it pre-injury work, and/or restricted-duty work, typically regarded as modified duty work, or light-duty work;
· The unilateral right to suspend or modify compensation benefits, if the injured employee returns to work, with the time of injury Employer, or alternatively, the injured employee finds work on their own, such that the injured employee is again earning income/wages, whether at pre-injury wage rates, resulting in a suspension of compensation benefits, although medical remains open, or at wages less than pre-injury, resulting in a modification of the wage loss benefits, dependent upon wages actually earned, with compensation benefits converting to temporary partial disability benefits, subject to a 500 week cap, in the event of conversion of temporary total disability benefits to temporary partial disability benefits;
· The Impairment Rating Evaluation, utilizing AMA Guides to determine the whole person impairment rating, limited to the accepted work injury, of an injured employee who has received 104 weeks of temporary total disability benefits, often resulting in litigation over the “conversion” from temporary total to temporary partial disability benefits.
Historically, Pennsylvania has always been a form-intensive, wage-loss disability state, with the IRE concept first being introduced into the statute as a result of statutory reforms in 1996, initially establishing an impairment rating threshold, for conversion purposes, of any impairment less than 50% of the whole person, with that threshold reduced, in 2018, to a statutory threshold of 35%.
We know, what the heck?
So, when do you employ the IME versus the IRE?
Obviously, the IME is your initial resource in defending the claim, as it can be requested, either in defense of a claim or claimant-filed petition, and/or it can be requested in an accepted claim, where benefits are being paid, with IMEs being allowed every 6 months, for purposes of determining an injured employee’s ability to return to work, and recovery from the accepted work injury.
In the above context, the IME almost always occurs before the IRE, and the claim may likely be the beneficiary of multiple IMEs, before the IRE question even arises.
If there has been no change in benefit status, meaning that there is no IME evidence of a full recovery, to include no IME medical evidence of a claimant being able to return to available work, whether actual or fictional, excusing the linguistic license, as fictional is either the, LMS, or EPA, still requiring acceptance and adoption by mostly claimant-oriented Workers’ Compensation Judges, for purposes of suspending or modifying compensation benefits, then the IRE is a useful resource for determining if the Employer/Insurer/Administrator has a basis for seeking conversion of the injured employee’s compensation benefits from total to partial disability, potentially resulting in the partial disability benefits being capped at the 500 week statutory limit.
However, there are some claims where you, as claim-bending claims representative, have an IME of full recovery, or it establishes the basis for either actual or fictional work, and the issue of challenging the claimant’s compensation benefit status involves some form of defense petition, either a termination, predicated on a full recovery medical opinion, or a suspension or modification, based upon medical evidence of the ability to perform less than pre-injury work, and you have paid 104 weeks of temporary total disability benefits, potentially entitling you to request an IRE with the focused purpose of converting total disability to partial disability, then you have to ask yourself, “do I feel lucky, well do you?”
Before you throw all your claims muscle against the IRE box the question arises as to how Workers’ Compensation Judges balance an IME medical opinion of a full recovery against an IRE medical opinion establishing some percentage of impairment for an accepted work-related injury?
Since there are very few IREs that come back with a 0% impairment rating determination, essentially because it is extremely difficult to secure a 0% impairment rating in reliance upon the AMA Guides to impairment rating, absent an injured employee being in better physical shape and health than they were pre-injury, and that in 30 years of defending workers’ compensation claims, we have never witnessed such an occurrence, then the potential exists that the IRE establishing any impairment percentage, can potentially undermine a Workers’ Compensation Judge’s assessment as to the merits of medical evidence, through the IME medical report and IME’s doctor’s deposition that the injured employee has, in fact, fully recovered from the accepted work injury, the obvious footnote being that Termination Petitions, are rarely granted by Workers’ Compensation Judges, as the Termination Petition burden of proof is regarded as perhaps the highest burden of proof required for any petition under the Pennsylvania Workers’ Compensation Act, begging the question as to the next of requesting the IRE?
Prove us wrong?
So, back to that “do you feel lucky?” question the truth is, that it is probably a 100% guarantee that an IRE establishing any percentage of impairment while a defense petition is being litigated on an IME medical basis, will result in a denial and dismissal of the Employer-filed petition, as Workers’ Compensation Judges view the examination conflict, between an IME and an IRE, as a claim-defeating imbalance.
Keep in mind, given the humanitarian nature of workers’ compensation statutes, as well as general claimant-inflected orientation unanimously maintained by Workers’ Compensation Judges they, however noble or not, are looking for ways to find weaknesses in Employer-filed petitions, begging the question of why make it easy for them?
Perhaps the better recommendation, is to continue aggressively pursuing the termination, or other Employer-filed petition, while filing your Request for Designation of an IRE Physician, for purposes of being bound by the IRE physician designation requesting, for potential future conversion of the claimant’s compensation benefits from total to partial disability.
And the only reason why we did not say that at the outset of this missive, is that we really love commas, as well as conclusions.
Trust us, we just get it! It is trust well spent!
We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania. We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.
Every member of our Workers’ Compensation practice group is AV rated. Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.