Friday, May 3, 2013

MMI and the Impairment Rating Evaluation

The Pennsylvania Workers' Compensation Act was amended in 1996 to provide Employers & Insurers with an additional remedy to change the status of the injured Employee, receiving total (lifetime) disability benefits.

An Impairment Rating Evaluation (IRE) could be requested after the payment of 104 weeks of total disability benefits. A designated medical expert would utilize the American Medical Association "Guides to the Evaluation of Permanent Impairment" to determine an impairment rating for the injured employee.

If the impairment rating was less than 50% the employee was considered "partially disabled" and only entitled to indemnity wage loss benefits for a duration of 500 weeks.

One issue, a recent topic of discussion, was whether the employee must be determined to be at Maximum Medical Improvement, MMI, before an impairment rating evaluation can be scheduled.

Question: How do you determine the employee is at MMI?

Answer: The IRE physician must determine if employee is at MMI before conducting the examination.
There is no need for a separate "pre-IRE" medical exam.

Stocklin v. WCAB (DollarLand Inc.), No. 932 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McCullough on April 18, 2013, discussed this issue, in addition to several other IRE topics.

Factual & Procedural Background

Stocklin sustained a work related neck injury.
She later filed a petition for Review of the description of injury, to include:  a "specific loss of use" of her right hand, cervical scar, carpal tunnel of the left hand, low back pain with radiculopathy and psychological injury.
The WCJ granted the Review petition, but not including the psychological injury.

Employee was designated to attend an IRE. The IRE resulted in an impairment of 19%. The Employer filed a Petition for Modification of total disability to partial disability.
The WCJ granted this Modification petition.

Employee Appeal

Employee advanced several arguments, which were rejected by the Commonwealth Court.

1. There were discrepancies in the medical records reviewed by the IRE physician.
2. The IRE physician did not have all of her records.
3. The IRE physician failed to consider the prior WCJ finding of loss of use.
4. The IRE physician failed to consider her pain from her work-related injuries.
5. There was no valid determination that she reached MMI prior to completing the IRE.

The Combine v. WCAB (National Fuel Gas Distribution Corp.) (Pa. Cmwlth. 2008) decision held that "the physician conducting the IRE must first determine that the claimant has reached MMI".
 954 A.2d at 781.

MMI 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. AMA Guides Sixth Edition page 26.

Practice Pointers:

1. Schedule an IRE in EVERY case after the payment of 104 weeks of Total Disability Benefits.

2. Schedule a Vocational Expert Interview to Modify the benefit RATE of the injured employee.

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