The Employer and Workers' Compensation Insurer have a remedy to limit the duration of total disability benefits, via the scheduling of an Impairment Rating Evaluation (IRE) pursuant to Section 306 (a.2).
The requirements are straight forward. After an Employee receives 104 weeks of total disability benefits, the Employer may file a Request for Impairment Rating Evaluation LIBC-766 with the Bureau of Workers' Compensation.
The Bureau assigns the request to a medical expert, who is licensed in Pennsylvania and Board Certified in a Specialty. This physician must also be active in clinical practice, for at least 20 hours per week.
The examining medical expert must determine that the Employee has reached "Maximum Medical Improvement", before an evaluation can take place.
The medical expert must utilize the latest edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment".
If the degree of impairment is equal to or greater than 50% , in accord with the AMA Guides, then Employee is presumed to be totally disabled.
If the degree of impairment is less than 50%, then Employee shall receive partial disability benefits. Partial disability status is for a maximum duration of 500 weeks.
Benefit status is changed by the filing of an LIBC-764, Notice of Change of Workers' Compensation Disability Status.
The rate or dollar amount of the benefits is not changed by the IRE. The "status" of the Employee benefits is changed, from a potential lifetime duration of total disability, to a limited duration of 500 weeks.
Question: What happens when an employee has an IRE, is placed on partial status and then undergoes work-related surgery ... which is totally disabling in nature?
Wingrove v. WCAB (Allegheny Energy), No. 1151 C.D. 2013, is a reported decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on January 3, 2014. The disability status of employee after surgery was addressed.
Factual and Procedural Background
Employee injured his low back while working as a laborer in November 2002.
An NCP was issued for a low back "strain".
He continued to work, until May 2003 when he underwent surgery. His low back pain worsened and he remained off work on total disability.
After payment of two (2) years of total disability benefits, Employer requested an IRE.
A May 1, 2005 evaluation by medical expert Jon B. Tucker, M.D. determined Employee was 11% impaired, in accord with the AMA Guides.
A Notice of Change of Disability Status was issued.
This change of status was automatic and self-executing as the IRE was requested within 60 days of the Employee's receipt of 104 weeks of compensation.
[See: Pa Supreme Court Decision at Gardner v. WCAB (Genesis Health Ventures) 585 A.2d 366 (Pa. 2005)]
May 18, 2009 ... Four (4) years later Employee filed two (2) petitions
In 2010, a Third Petition followed...
1. Review Description of Injury. This petition asserted, the 2002 NCP should be amended to include:
- mood disorder with depressive, psychotic and hypomanic symptomatology;
- a moderate to severe treatment-resistant pain disorder;
- chronic severe low back pain.
2..Review IRE The IRE was defective as it did not take into account the above psychiatric problems.
3. Review Petition (2010) Lumbar fusion surgery of March 2010 rendered Employee more than 50% disabled, pursuant to the AMA Guides. Amendment of the NCP was requested to include:
- post laminectomy syndrome and chronic L5 radiculopathy.
NOTE: In January 2011, during the WCJ litigation, the parties entered into a stipulation and agreed that Employee became totally disabled as of the date of the March 24, 2010 surgery, until November 29, 2010. As of November 30, 2010, Employee was returned to partial disability status.
The parties agreed the execution of this stipulation (Supplemental Agreement) would not have any effect on any pending petitions or any future petitions.
WCJ January 2012 Decision and WCAB Affirmation
A. Review Description of Injury
Granted as to:
- chronic radiculopathy,
- post-laminectomy syndrome,
- chronic back pain,
Denied as to : psychosis.
B. Review IRE Petition
- Denied. Employee did not challenge the IRE within 60 days of the Notice of Change in Disability Status.
- Expansion of the NCP did not negate the validity of the Dr. Tucker 2005 IRE.
- 2011 Supplemental Agreement did not render the 2005 IRE a nullity.
C. Review Petition 50% Impairment Argument
- Denied, Employee had the burden to prove that the additional recognized work injuries established a whole body impairment in excess of 50%. He did not meet this burden.
Commonwealth Court Affirmation and Reasoning
(1) there was an error of law, once Employee became totally disabled, Employer had the burden of proof to re-establish Employee was partially disabled before they could change his disability status.
(2) The Workers' Compensation Act violates the Pennsylvania Constitution.
Why does Employee lose this Appeal?
i. Employee may challenge an IRE, on its merits, within 60 days of receipt of the Notice of Change form. After 60 days, the IRE is beyond challenge! He waited four (4) years.
ii. Employee may obtain a new IRE after 60 days (within the 500 week partial disability status).
BUT to change his status from partial to total, he must establish an impairment of 50% or more.
He did not obtain a new IRE.
iii. The 2012 WCJ decision amending the NCP did not render Dr. Tucker's 2005 IRE determination invalid.
After 60 days it was fixed and beyond challenge.
iv. The burden of proof shifted to Employee to show that his addition of depression to the NCP rendered him at least 50 % impaired.
Section 306 (a.2)(4) allows a change in disability status, but only where an impairment rating determination is equal to or greater than 50%. Employee did not do this. Employee did not meet his burden of proof.
The Court rejected Employee argument that the Employer had the burden of proof to establish partial disability, after the Supplemental Agreement placed him on total disability status.
[Recall: that agreement stated it would not have any effect on the pending or future petitions].
v. Constitutional Argument. Questions of the validity of a Statute may be raise on appellate review, even where not raised before the WCJ and/or WCAB. [Pa. R.A.P. 1551].
Employee argued that" in some circumstances his client would have been consider to be more than 50% impaired" ... but he did not assert a change in an edition of the AMA Guides which affected HIS 2005 IRE!
The term, "most recent edition" of the AMA Guides has been interpreted to mean the edition in effect at the time the IRE is conducted. See: Standish v. WCAB (James J. Anderson Construction Co.) 11 A.3d 569 (Pa. Cmwlth. 2010).
Employee did not "develop" his constitutional argument. slip opinion page 10.
1. Once again I emphasize, the IRE remedy is a relatively low-cost, low-effort remedy to limit the duration of workers' compensation indemnity wage loss benefits.
EVERY work comp file should be diaried for payment of 104 weeks of total disability, for the prompt request of an IRE.
2. Another available remedy (available even before the payment of 104 weeks of total disability) is the remedy to establish a post-injury earning capacity via a Medical Expert Examination ...
... followed by an Employer job offer AND/OR a Labor Market Survey by a qualified vocational expert, leading to an Earning Power Assessment ... and a prima facie case for modification of total disability benefit payments.
These are two remedies that should be employed in every workers' compensation case.
These are the remedies available ... use them.