Friday, June 7, 2013

Impairment Rating Evaluation (IRE) Order is a Non-Appealable Order

An Impairment Rating Evaluation (IRE) is a remedy available to the Pennsylvania Employer to establish the degree of impairment of an injured worker. If the IRE results in a determination that the employee is less than 50% impaired, in accord with the AMA Guides to the Evaluation of Impairment, the duration of disability benefits is capped at 500 weeks. The rate of benefit payment remains unchanged. An Earning Power Assessment, based upon a labor market survey, is the remedy that allows an Employer to reduce the rate of benefit.

After the employee has receive 104 weeks of total disability benefits, an IRE may be scheduled.
If the employee does not comply with this request for evaluation, the Employer may file a Petition to Compel Physical Examination or Expert Interview pursuant to Section 314 (LIBC 499 form).

This petition will be assigned to a Workers' Compensation Judge for an evidentary hearing and decision. In the past, we have learned that an Employer does not need to establish that an injured worker is at "Maximum Medical Improvement", before scheduling the IRE.
[see: May 3, 2013, post discussing Stocklin decision]

 What is the WCJ errs and believes a "Pre-IRE" determination of MMI status is necessary?
An Employer must appeal this adverse decision, as it is based upon an incorrect interpretation of law.

The recent case at Carter v. WCAB (GenCorp, Inc.), No 1172 C.D. 2012 an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Brobson on May 7, 2013, reported this circumstance.

Factual and Procedural Background

Employee was injured in 1999. Workers' Compensation benefits were voluntarily paid pursuant to a Notice of Compensation Payable. In August 2010, Employer filed a Petition for Physical Examination to order employee to attend an IRE. Employee failed to appear at an exam scheduled for July 2010.
Employee argued Employer was not entitled to an IRE as Employer did not secure a medical opinion that he had reached MMI.

The WCJ denied the Employer petition based upon an (mistaken) interpretation of Section 306 (a.2) and the decision at Combine v. WCAB (National Fuel Gas Distribution Corp.)(Pa. Cmwlth. 2008). 
The WCJ ruled that Employer had to first independently establish employee was at MMI, before the IRE request.
The WCAB correctly reversed the WCJ order.
The WCAB directed employee to attend the IRE.
Employee appealed to the Commonwealth Court

Commonwealth Court decision

The Court quashed (dismissed) Employee's appeal. Why?

The WCAB order to direct employee to attend an IRE was an interlocutory order.
As an interlocutory order, it is a non-appealable order.
slip opinion page 3, citing Groller v, WCAB (Alstrom Energy Systems) (Pa. Cmwlth. 2005).

Groller stated that an order directing a claimant to submit to a medical examination is interlocutory as the order neither affected claimant's benefits nor affected employer's obligation to pay benefits. citing H.K.Porter Co. v. WCAB, 514 A.2d at 998-999, (Pa. Cmwlth. 1986).

Practice Pointers:
1. Remember, an order to compel the worker to attend any medical examination is a non-appealable order. You must file a petition and obtain an order from the WCJ. File a motion to quash any appeal, so you may proceed with the IRE or IME.

2. Schedule EACH workers compensation case for an IRE, after payment of the 104th week of total disability benefit payment. The IRE must be scheduled within 60 days of that 104th week.

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