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PENNSYLVANIA WORKERS’ COMPENSATION ACT: WHAT IS AN IMPAIRMENT RATING EVLAUATION (IRE) AND WHAT EFFECT DOES THE RECENT CASE OF PROTZ HAVE ON THE VALIDITY OF SUCH EXAMS

If someone in Pennsylvania has an ongoing wage loss workers’ compensation benefit, his or her employer may send the injured worker for an impairment rating evaluation (“IRE”). The IRE exam cannot be requested by the Employer until the individual has received 104 weeks of total disability benefits (2 years), and the IRE request must be made within 60 days of receipt of the 104 weeks of total disability. If it is requested before the receipt of 104 weeks of total disability benefits, the request is not valid and should be challenged with the assistance of a skilled Pennsylvania Workers’ Compensation practitioner. If the IRE is requested outside this 60-day window, then the Employer must file a Modification Petition to change an injured workers’ disability status. If the IRE request is timely and the rating less than 50 percent whole body impairment, there can be an automatic conversion of the individual’s benefits from total disability to partial, although the total disability payment amount will remain the same. The effect of the IRE being assessed at 50 percent or under means that the insurance company can cap its exposure of wage loss benefits to a maximum of 500 weeks, or 9.6 years. This provides the insurance company with a potential endpoint to the payment of total disability wage loss benefits, and one for the injured worker as well. There are multiple ways to challenge the validity of an IRE with the assistance of a skilled Pennsylvania Workers’ Compensation practitioner. Significantly, this IRE examination has no effect whatsoever on the continued ongoing receipt of medical benefits related to the work injury.

Such was not the case before 1996, when Act 57 of the Pennsylvania Workers’ Compensation Act was amended which gave rise to the impairment rating evaluation. An IRE is similar to an independent medical examination but has a different purpose. The injured worker is assigned to see a physician designated by the Bureau of Workers’ Compensation for the purpose of determining that person’s whole body impairment based exclusively on the work injury. The physician performs a physical exam, reviews medical records, and using the American Medical Association’s “Guides to the Evaluation of Permanent Impairment,” determines the individual’s whole body impairment, which is offered as a percentage. What is important to keep in mind, is that each part of the body has a certain maximum percentage of impairment attached to it; consequently, an individual with a severe work related back injury which resulted in multiple surgeries and ongoing pain and disability, might only be 10 to 35 percent whole body impaired according the AMA Guidelines. If the rating results in an impairment of 50 percent or greater, then the individual’s benefits cannot be capped pursuant to that examination, although a future impairment rating evaluation may be performed and a new rating obtained. Note that based on the AMA’s Guidelines, very few serious work related injuries result in a rating of 50 percent or greater. These cases usually involve multiple serious injuries to multiple parts of the body. Therefore, if you are not represented by a skilled workers’ compensation attorney and have received a notice that you are scheduled for an impairment rating evaluation, you should immediately contact one and have your case evaluated.

Recent Case Law

Pursuant to Section 306(a.2.) of the Pennsylvania Workers’ Compensation Act, an IRE physician designated by the Bureau is required to use “the most recent edition” of the American Medical Association’s Guidelines. At the time the Pennsylvania Workers’ Compensation Act was amended to include IREs, the AMA Guide was in its 4th edition. There have been two recent editions to these guides, and as of this date of this article, IREs were being performed utilizing the 6th edition. However, in the September 2015 case of Protz v. Workers’ Compensation Appeal Board (Derry Area School District), No. C.D. 2014 (Pa. Cmwlth. 2015), the Commonwealth Court sitting en banc, held that Section 306(a.2.) was an unconstitutional delegation of the General Assembly’s legislative power by including the language that a physician performing an IRE should utilize “the most recent edition” of the AMA Guidelines. In a 4-3 Decision, the majority of the Court, relying upon Article II, Section I of the Pennsylvania Constitution, found that only the 4th edition of the AMA Guidelines could be used to assess an injured workers’ impairment rating. It reasoned that a private entity, the AMA, could change its guidelines over time with more “recent” editions without any oversight or review by the General Assembly. Such is actually what happened as it turned out.

The 4th edition did not allow for an impairment rating if the injured worker had a psychiatric overlay. However, the 5th and 6th editions removed this impediment and allows for such a rating. Moreover, the changes made from the 4th to the 6th edition have been substantive and have generally resulted in ratings which are lower than at the time Act 57 was amended. Consequently, an injured worker who might have had an impairment rating over 50 percent whole body under the 4th edition might not be so under the 5th or 6th editions. The Commonwealth Court ruled that the General Assembly established the standards and norms under the 4th edition, but that it had no oversight over the substantive changes of the more recent guidelines.

The effect of this ruling is clear: impairment ratings which utilized the 5th or 6th edition should be challenged before a Workers’ Compensation Judge. Further, any future IREs must use only the 4th edition until the General Assembly acts to correct its impermissible delegation of power to the AMA. The Pennsylvania Supreme Court has not heard the case, nor at the time of this article, had to parties had a chance to see that review. Either way, injured workers who are or have been subject to an IRE should contact a specialized, workers’ compensation attorney immediately to go over their options. Contact our office for a free consultation at 717-238-1657

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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