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“TO MMI OR NOT TO MMI”
By Kevin L. Connors, Esquire
Under the 1996 amendments to the Pennsylvania Workers’ Compensation Act, Impairment Rating Evaluations, subject to certain prerequisites, allow an Employer/Insurer to modify a Claimant’s compensation benefits, following the acceptance of a work-related injury and payment of temporary total disability benefits, to temporary partial disability benefits, which statutorily limits the injured Employee to a maximum of 500 weeks of temporary partial disability benefits under Section 306(b) of the Act.
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A recent Pennsylvania Commonwealth Court Decision in Neff v. W.C.A.B., decided in January 8, 2015, illustrates the confusion over what constitutes “maximum medical improvement” for IRE purposes.
First, the agreement to accept an injury as being work-related, when it involves lost time or disability, entitles the injured Employee to receive temporary total disability benefits, until such time as one of the following events occurs:
· The Claimant dies, and compensation benefits terminate by operation of both death and loss;
· 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;
· 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;
· The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;
· The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;
· The Claimant is deported by virtue of not being able to prove legal immigration status;
· 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,
· 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.
Next, when the injured Employee has received 104 weeks of temporary partial disability benefits, the Employer/Insurer is permitted to request that the injured Employee undergo an Impairment Rating Evaluation, performed in compliance with the AMA’s Guides to the Evaluation of Permanent Impairment, with the Employer/Insurer being entitled to convert/modify the injured Employee’s wage loss disability benefits from temporary total to temporary partial disability benefits, if the Impairment Rating Evaluation results in a determination that the injured Employee’s Impairment Rating is less than 50% of a whole person standard.
The thresholds permitting the Employer/Insurer to request that an injured Employee who has received 104 weeks of wage loss disability benefits undergo an Impairment Rating, under Section 306(a.2)(1), of the Pennsylvania Workers’ Compensation Act require the following prerequisites:
· Accepted work injury resulting in wage loss disability, or award of workers’ compensation benefits;
· Receipt of 104 weeks of temporary total disability benefits;
· The Employer/Insurer requesting an Impairment Rating Physician Designation from the Pennsylvania Bureau of Workers’ Compensation;
· Appropriate certification that the Impairment Rating physician is certified to conduct Impairment Rating Evaluations of the AMA’s Guides;
· A preliminary determination by the IRE designated physician that the injured Employee has reached maximum medical improvement, considered to be a point in time in the recovery process after an injury, when further formal medical or surgical intervention cannot be expected to improve the underlying impairment or injury; and,
· An Impairment Rating Evaluation is performed by a certified IRE physician who first concludes that the injured Employee is at MMI, and then concludes that the injured Employee has an Impairment Rating, utilizing the AMA’s Guides, of less than 50% of a whole person standard.
If all of the above criteria are met, the injured Employee’s wage loss disability benefits are then converted or modified from temporary total to temporary partial disability benefits, capping the amount of benefits that an injured Employee can receive at 500 weeks, after receipt of the 104 weeks of temporary total disability benefits, for a total of 604 weeks of disability benefits equal to $574,404.00 of Pennsylvania’s 2015 maximum compensation benefit rate of $951.00.
The total of both temporary total and temporary partial disability benefits equals 604 weeks.
If the IRE Request is made within 60 days of the injured Employee receiving 104 weeks of temporary total disability benefits, an IRE establishing an Impairment Rating of less than 50% automatically results in the injured Employee’s wage loss disability benefits converting from temporary total to temporary partial, again subject to the 500 cap.
If the IRE Request is made more than 60 days after the injured Employee has received 104 weeks of temporary total disability benefits, an IRE establishing an Impairment Rating of less than 50% does not automatically entitle the Employer/Insurer to convert or modify the injured Employee’s temporary total disability benefits into temporary partial disability benefits, as the Employer/Insurer must then file a Modification Petition, to litigate the issue of the conversion or modification of the injured Employee’s disability benefits, requiring the Employer/Insurer to prove the validity of the IRE, in terms of perfecting the necessary elements to establish that the IRE was consistent not only with the AMA Guides, but also with the Pennsylvania Workers’ Compensation Act.
The determination of whether an injured Employee has reached MMI is both a sword and a shield in IRE litigation in Pennsylvania.
First, challenges to an injured Employee reaching MMI have long been utilized by the Claimant’s bar, to challenge the threshold determination of IRE physicians, as to whether an injured Employee has reached MMI, with the challenges often time being categorized as flanking moves to allege new or previously undiagnosed injuries as also being part of the compensable work injury nexus, particularly in psychological overlay situations, as well as in situations where diagnostic impressions have evolved, either due to additional diagnostic testing, or due to surgical intervention.
More recently, the Pennsylvania Commonwealth Court was asked to determine the validity of an IRE where the injured Employee contended that she might possibly require future surgery for her work injury, in the January 8, 2015 ruling inNeff v. W.C.A.B.
The underlying facts were that the injured Employee sustained a work injury on February 20, 2004, with the injury being described as right wrist carpal tunnel syndrome.
Subsequently, the Employer/Insurer filed Petitions to terminate and suspend the injured Employee’s compensation benefits, in response to which the injured Employee filed Petitions to Review the description of injury on the Notice of Compensation Payable, and to Review medical treatment that the injured Employee had received post-injury.
In ruling on the pending Petitions, the Workers’ Compensation Judge denied the Termination Petition, finding that the injured Employee had not recovered from the work injuries, with the WCJ granting the Review Petition, finding that the injured Employee’s injury also included chronic lateral epicondylitis.
Subsequent to that Decision, the parties entered into a Compromise and Release Agreement, under which the injured Employee’s benefits for the right carpal tunnel injury were resolved, with liability for the chronic lateral epicondylitis remaining open.
Two years later, the Employer/Insurer again filed a Modification Petition against the injured Employee, alleging that the open injury, the right lateral epicondylitis, had resolved into a permanent impairment of less than 50%, with the Employer/Insurer seeking to modify the injured Employee’s wage loss benefits from temporary total to temporary partial disability benefits.
The Modification Petition was based upon an Impairment Rating Evaluation that had been performed by Dr. William Prebola, a certified Impairment Rating examiner.
In the course of conducting the IRE, Dr. Prebola had determined that the injured Employee had reached maximum medical improvement, and that her whole person Impairment Rating was 1%.
The IRE was sought beyond the 104 week payment of temporary total disability benefits that would have permitted the Employer/Insurer to automatically modify the injured Employee’s compensation benefits from temporary total to temporary partial disability benefits.
Ruling on the Employer/Insurer’s Modification Petition, the WCJ granted the Petition, resulting in the injured Employee’s compensation benefits being modified, from temporary total to temporary partial disability benefits, with the injured Employee appealing the WCJ’s Decision to the Appeal Board, which likewise affirmed the WCJ’s Decision, following which the injured Employee sought review before the Pennsylvania Commonwealth Court.
On Appeal before the Pennsylvania Commonwealth Court, the injured Employee argued that the IRE that formed the basis for the modification of the injured Employee’s compensation benefits was invalid, arguing that the IRE was premature and invalid as a matter of law, where there existed a reasonable potential for the injured Employee to undergo future surgery that might cause a change in her condition.
Considering the injured Employee’s Appeal, the Commonwealth Court nevertheless affirmed the WCJ’s Decision modifying the injured Employee’s compensation benefits, as the Commonwealth Court held that the initial determination as to whether an injured Employee has reached maximum medical improvement is an inherently medical determination, which must necessarily either be supported or rebutted by medical testimony, with the Commonwealth Court finding that Dr. Prebola had considered the appropriate factors required by the AMA’s Guides, in determining that the injured Employee had reached MMI, and so long as Dr. Prebola had relied upon the factors dictated by the AMA’s Guides, the WCJ had judicial discretion to rely upon Dr. Prebola’s determination that the injured Employee was at MMI.
Since the WCJ had found that Dr. Prebola’s medical opinions were both persuasive and credible, not only in terms of the injured Employee reaching MMI, but also in terms of Dr. Prebola’s determination that the injured Employee had a 1% whole person Impairment, the Commonwealth Court held that the WCJ was correct in relying upon and crediting Dr. Prebola’s medical opinions to determine that the injured Employee had reached MMI in accordance with the AMA’s Guides.
So holding, the Commonwealth Court held that the Employer/Insurer’s IRE was, in fact, valid, resulting in the injured Employee’s Appeal being denied and the WCJ’s Decision being affirmed.
Quoting from the AMA’s Guides regarding MMIs:
2.3c When Are Impairment Ratings Performed?
Only permanent impairment may be rated according to the Guides, and only after the status of “maximum medical improvement” (MMI) is determined, as explained in Section 2.5e. Impairment should not be considered permanent until a reasonable time has passed for the healing or recovery to occur. This will depend on the nature of underlying pathology, as the optimal duration for recovery made very conservatively from days to months. The clinical findings must indicate that the medical condition is static and well stabilized for the person to have reached MMI…[.]
2.5e Maximum Medical Improvement
Maximum Medical Improvement refers to a status where patients are as good as they are going to be from the medical and surgical treatment available to them. It can also be conceptualized as a date from which further recovery or deterioration is not anticipated, although over time (beyond 12 months) there may be some expected change…[.]
Thus, MMI represents a point in time in the recovery process after an injury when further formal medical or surgical intervention cannot be expected to improve the underlying impairment. Therefore, MMI is not predicated on the elimination of symptoms and/or subjective complaints. Also, MMI can be determined if recovery has reached the stage where symptoms can be expected to remain stable with the passage of time, or can be managed with palliative measures that do not alter the underlying impairment substantially, within medical probability…[.]
Obviously, this is a Decision very favorable to Employers and Insurers, in the course of validating the efficacy of IREs predicated upon MMI having been established.
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