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Does an Impairment Rating Exam have to consider only the injuries recognized by the Insurance Company?

In a previous article we discussed impairment rating evaluations (IRE) and how they can impact your Pennsylvania worker’s compensation case.  Recently, the Pennsylvania Supreme Court in the case of Duffey v. WCAB, addressed whether an Impairment Rating physician evaluator is required to consider any “particular impairment” that is “due to” the compensable injury.  Under the current law, an Impairment Rating Exam can occur after the receipt of 104 weeks total disability.  The Employer can request a designated physician to perform an exam and determine your percentage of disability.  If the IRE physician finds less than a 50% disability rating it will limit a Claimant’s wage loss compensation to total of 500 weeks.

In Duffey, the Claimant was suffering from severe electrical burns to his hands, but developed depression and Post Traumatic Stress Disorder (PTSD) as a result of his injuries.  Only the electrical burns were formally recognized by the employer.  The Pennsylvania Supreme Court had to decide whether or not the Claimant’s depression and PTSD were required to be addressed during the Impairment Rating Evaluation process.

Under Section 306(a.2) of the Pennsylvania Workers’ Compensation Act, Physicians are required to “determine the degree of impairment due to the compensable injury.”  The Workers’ Compensation Judge found in favor of the Claimant and disallowed any modification of the Claimant’s benefits based on the fact that the IRE doctor did not perform full exam by omitting the known but as yet unrecognized PTSD and depression.   The Workers’ Compensation Appeal Board reversed and found that since the Claimant did not file a Review Petition to change the description of injury the IRE physician was not required to address the PTSD and depression.  The Board’s decision was upheld by the Commonwealth Court.

The Commonwealth Court found that any injury other than the clearly identified and accepted injury on the Notice of Compensation Payable was all that the IRE doctor was required to evaluate in order to provide a percentage of remaining disability.  According to the Commonwealth Court, this was especially true where, as here, no attempt to change or update the description of injury occurred until after the IRE exam.  Moreover, there was no notice to the employer of a work related mental injury.  The Claimant did; however, present medical evidence of an ongoing mental injury through his expert witness.   The IRE doctor did not comment on the mental injury because: 1. He was not specifically asked to do so and; 2. He stated that he could not comment on the “additional” injuries because he was not a psychiatrist.

The Supreme Court found that the depression and PTSD should have been considered and that it was absolutely necessary for perform a “whole-body assessment of the degree of impairment due to the compensable injury.”  The Supreme Court went to great lengths in examining the American Medical Association (AMA) Guidelines to support the position that the Notice of Compensation description, while a starting point in determining the injury, did not control what should be examined at the IRE. The Court stated that “. . . the physician evaluator must exercise professional judgment to render appropriate decisions concerning both causality and apportionment.”  The Court went on to state that the “event” rather than the injury should be examined in order to “determine whether such conditions as might have been diagnosed were fairly attributable to Claimant’s compensable injury.”  The Supreme Court found it critical that the IRE physician take its’ marching orders not from the edicts of the insurance company but rather examining “section 306(a.2) and the AMA Guides” in order to arrive at a complete picture of all the potential injuries involved.

If you have been asked to attend an exam for the purpose of an Impairment Rating Evaluation, you may want to consider discussing your case with an experienced Pennsylvania Workers’ Compensation Attorney to ensure that all of your work injuries are considered in the process.

Ira H. Weinstock, P.C. is located in Harrisburg, PA and serves clients in and around Southeast Pennsylvania. Contact our experienced Harrisburg attorneys today, we can travel if necessary.

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