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PENNSYLVANIA’S VALIDATION OF AN IMPAIRMENT
RATING EVALUATION (IRE)
Kevin L. Connors, Esquire
“Facts are meaningless. You could use facts to prove anything that’s even remotely true.” Homer Simpson.
A recent Decision by the Pennsylvania Commonwealth Court in Duffey v. WCAB (6/26/15), recently resulted in the Court, in an Opinion authored by Judge Cohn Jubelirer, validating an Employer Impairment Rating Evaluation that was the Claimant sought to invalidate by alleging that the IRE had not considered all of the Claimant’s work-related injuries, as the Claimant argued, thankfully unsuccessfully, that the IRE, which had considered the Claimant’s accepted work-related injuries in the course of determining the Claimant’s impairment rating under the AMA’s Guides, resulting in a conversion of the Claimant’s temporary total disability benefits (lifetime absent death, or change in medical condition effectuating full recovery or ability to return to available work), to temporary partial disability benefits (capped at 500 weeks), had not taken into account the medical opinion of treating physicians who testified that the Claimant was suffering from post-traumatic stress disorder as a result of the work injury.
With the above sentence seemingly setting a syntactical record for inconsequentially-related phrases, it would be simple enough to leap to the end point, being that the Commonwealth Court affirmed the underlying Decision of the Appeal Board (charged with the first level of appeals of comp claims in Pennsylvania), reversing the underlying Decision of the Workers’ Compensation Judge, who had invalidated the Employer’s IRE, which preceded the employer filing a Notice of Change, converting the Claimant’s temporary total disability benefits to temporary partial disability benefits, in reliance upon the testimony of the Claimant’s treating physicians, that the Notice of Compensation Payable, describing the Claimant’s originally-accepted work-related injury, should be amended to include the newly-adjudicated injury of post-traumatic stress disorder.
No doubt, another run for your money piecing together the above paragraph.
In any event, this is an important Decision since it fixes the effective timeline for validating an IRE used by an Employer to mitigate the potential lifetime exposure for temporary total disability benefits into the more limited exposure of 500 weeks for temporary partial disability benefits, still representing a significant chunk of time in both the life of the Claimant and the workers’ compensation claim, as it represents 9.6 years during which an injured Claimant might still be entitled to receive indemnity workers’ compensation benefits for wage loss.
Like Homer, ready for a few facts?
It begins with the March 6, 2009 injury of the Claimant, who injured his hands, when picking up hot wires while working for Trola-Dyne, Inc. This occurred while the Claimant was repairing a machine for his employer.
In the course of accepting the Claimant’s injuries as being work-related, the employer issued a Notice of Compensation Payable (NCP), under which the Claimant’s injuries were described as “bilateral hands, electrical burn, stripping some electric wires”.
The same description always tugs at the inherent conflict between exclusion versus inclusion, as descriptions that focus on body parts as opposed to medical diagnoses are almost always vulnerable to future enlargement and expansion, with the practical tip being to avoid use of describing injuries in terms of body parts, as opposed to describing the work injuries in terms of reasonable medical diagnoses.
With the issuance of the NCP, the Claimant began receiving his temporary total disability benefits for wage loss, with the employer requesting an IRE under Section 306(a.2)(1) of the Act after the Claimant had received 104 weeks of wage loss benefits.
Requesting an IRE, the employer described the Claimant’s work injuries as “bilateral hands-nerve and joint pain”, which, technically, was already expanding the description of injury under review by the IRE, with the IRE resulting in a determination that the Claimant had a 6% impairment rating, in terms of the work injuries, resulting in his compensation benefits being converted from the lifetime temporary total disability benefits to the partial disability benefits subject to the 500 week cap under Section 306(b).
Challenging the conversion of his compensation benefits, the Claimant filed a Review Petition, alleging that the IRE was invalid, as it had not included a complete description of injury, since the Claimant alleged that the IRE should have also considered the Claimant’s post-traumatic stress disorder, although that injury had never formally been accepted as compensable and work-related by the employer, nor had there been any litigation adjudicating a determination that the Claimant’s PTSD was related to his 2009 work injury.
Conflicting medical testimony was then presented by the parties, in support of and in opposition to the Claimant’s Review Petition, with the Claimant’s physicians testifying that the PTSD was related, and the employer’s medical expert testified that the PTSD was not related, as well as that the Claimant was fully recovered from that diagnosis.
Finding in favor of the Claimant, the WCJ granted the Claimant’s Review Petition, amending the description of injury to include the PTSD diagnosis, as well as invalidating the IRE, on grounds that the IRE had not considered the Claimant’s PTSD.
Appealing the WCJ’s Decision, the employer was successful in convincing the Appeal Board to reverse the WCJ’s Decision, with the Board finding the IRE to be valid as the Claimant had never formally sought to amend the NCP to include the diagnosis of PTSD and depressed mood, and the WCJ had accepted the testimony of the IRE physician that the Claimant was at MMI as of the IRE, requiring the IRE to be valid when performed.
Petitioning for review before the Commonwealth Court, the Claimant again argued, as he had before the WCJ, that the IRE failed to consider all of his work-related injuries, as the PTSD had not been considered, with the employer countering that acceptance of the Claimant’s argument would essentially eviscerate the IRE provisions of the Act, as Claimants could always challenge IRE determinations on grounds that the IRE failed to consider injuries never formally accepted or adjudicated as being work-related, although they might be injuries of an overlay nature, as was the case in Duffey.
In the course of affirming the Appeal Board’s determination that the IRE had been valid, based upon the Claimant never challenging the accepted description of injury prior to the IRE and the Claimant being at MMI in terms of work injuries as of the IRE being performed, the Court determined that both the statutory language and IRE legal precedents required the validity of an IRE to be dependent upon two factors, one being the Claimant’s medical state, whether at MMI or not, when the IRE is performed, as well as, secondarily, the IRE focusing in on the injuries that were determined to be work-related, whether described on an NCP, or determined in a Decision issued by a WCJ.
Relying upon Westmoreland Regional Hospital v. WCAB, 29 A.3d 120 (Pa. Cmwlth. 2011), the Court held that “the IRE produces a snapshot of the Claimant’s condition at the time of the IRE, not a survey of the Claimant’s work-related injuries over a period of time”.
For that reason, the Duffey Court held that the validity of the IRE is determined by “the Claimant’s physical condition at the time of the IRE”.
The Court also ruled that it interpreted Section 306(a.2) of the WCA to not infer that the General Assembly intended to nullify performed and otherwise valid IREs, being challenged with claims of new or additional injuries not considered by the IRE physicians.
This ruling does not necessarily foreclose Claimant’s from challenging the conversion of their compensation benefit status from total disability to partial disability, if Claimants obtain impairment ratings of at least 50% under the AMA Guides.
Holding that an IRE that considers a Claimant’s work injury as defined and existing at the time the IRE is performed, to be valid notwithstanding an after-the-fact expansion of the scope of a Claimant’s work-related injury, the Court held that to find otherwise would be inconsistent with the WCA, and the Court’s own prior precedents.
As Shakespeare might have said in Richard III, “My Kingdom, My Kingdom for an IRE!”
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