Thursday, February 26, 2015

Impairment Rating Evaluation - the continued challenge and review of the Employer Remedy

Impairment Rating Evaluation and the "MMI" requirement.
Since 1996, the Employer and Insurer have a remedy in the Pennsylvania Workers Compensation Act, to limit the duration of payment of total disability indemnity wage loss benefits to the injured worker. This is accomplished via the filing of a request to have the injured worker attend an Impairment Rating Evaluation (IRE).

We have described the IRE as the "best remedy" to the Employer and Insurer.
Why? For two reasons.

First, there is the limitation of the duration of total disability benefit payments to the injured worker, via a successful IRE.

Second, in your subsequent settlement evaluations of future benefit liability, you may use the remaining duration of TTD status to assess the claim settlement value, rather than calculate settlement value based upon the entire 500 week period!

In the Work Comp practice, we witness a continuing pattern of challenges and appellate review of successful IRE modifications by Claimants and their Attorneys.

Neff v. WCAB (Pa Game Commission), No. 130 C.D. 2014, is a reported decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Brobson on January 8, 2015.
In this decision,  the Court addressed the issue of future surgical care, alleged as a factor, in the argument against a finding of Maximum Medical Improvement (MMI).
Note: a finding of MMI is a necessary precursor to the utilization of the IRE remedy.

Factual and Procedural Background

Employee sustained a work injury to the right wrist in February 2004, in the course of screwing bluebird boxes together, in her duties with the PA Game Commission. An NCP was issued and described the injury as "right wrist - carpal tunnel syndrome".

A subsequent Employee Review Petition was filed in July 2006 and was successful to expand the description of injury to "chronic lateral epicondylitis of the right elbow".
[Employer's 2006 Petition for Termination/Suspension was denied in February 2008].

In February 2009, the parties entered into a Compromise and Release Settlement for the carpal tunnel injury ... but Employer remained liable for the lateral epicondylitis injury.
(why the "partial" settlement? see below at Practice Pointer #4)

In January 2011,  Employer filed a Modification Petition based upon an IRE by by William R. Prebola, M.D., conducted on December 15, 2010. This IRE resulted in a determination that Employee had reached MMI status and her whole person impairment was 1%, in accord with the AMA Guides.

WCJ granted this Modification Petition .

Employee appealed. The WCAB affirmed.
Employee appealed to the Commonwealth Court.

Employee Commonwealth Court Argument:

The IRE was invalid.
The IRE was premature.
There is a reasonable potential for future surgery, which would change her condition.
On this basis, Employee argued she was not at "MMI".

Employee relied upon the decision in Combine v. WCAB (National Fuel Gas Distribution Corp.) (Pa. Cmwlth. 2008) for the proposition that the IRE physician must first determine that the worker has reached MMI status before calculating an impairment rating.

The Court reviewed the AMA Guides definition of Maximum Medical Improvement, (as they did in the Combine case).
"... the Guides instruct that an individual is at MMI when his/her condition has become static or stable and that while further deterioration or recovery may occur at some point in the future, one would not expect a change in condition at any time in the immediate future. Combine, 954 A.2d at781."

Dr. Prebola repeatedly testified  that this Employee was at MMI status.
He understood that there was some discussion regarding future surgery.
He explained - with or without treatment - she was at MMI.
He agreed, surgery would be a reasonable treatment option.
Surgery has the potential for improvement of her pain and symptoms, but surgery will not "cure" her, she would have some permanent damage and remained impaired.

Whether an injured worker has reached MMI is a matter of application of the Guides to the workers' condition. If the medical expert considers the appropriate factors required by the Guides, the WCJ may rely upon the medical expert's determination that a worker has reached MMI.

This testimony from Dr. Prebola is compatible with the Guides description of MMI.
- slip opinion page 7.
The WCJ and WCAB decisions were affirmed by the Commonwealth Court.

Practice Pointers:

1. Diary every open file for review at the 104th week of total disability status for consideration of the filing of an IRE Request. LIBC- 766.

2. Schedule all total disability cases for an Impairment Rating Evaluation. 

3. Use this opportunity to assess the necessity of an IME to address work capability and a Vocational Expert examination to establish a post injury earning capacity. 

4. There are several valid reasons to pursue a settlement of less than all of the "components" of the admitted work injury. First, You can end your future medical expense liability for that condition. Second, you insulate the Employer from any future petitions involving indemnity wage loss benefit issues, related to that injury. 

4.1 Another strategy is to settle all indemnity wage loss benefit issues and allow future medical expense submissions ... limited to a specific diagnosis ... or for a specific time duration ... or for a specific procedure... or for a specific $ amount of care.

Friday, February 13, 2015

Employee Wage Loss due to "Economic Conditions" IS NOT a Compensable Wage Loss.

Suspension of Indemnity Wage Loss Benefits - Despite Employee post-injury wage loss. 

An injured employee is entitled to indemnity wage loss benefits when the work injury prevents a return-to-work. If an employee returns to work at wages equal to or greater than the pre-injury wage, a Suspension status is appropriate.

Typically, when an employee returns to work, at wages less than the time-of-injury average weekly wage, the employee is entitled to 66 2/3 % of the difference between the post-injury wage and pre-injury wage. This Permanent Partial Disability (PPD) benefit is payable for a duration up to 500 weeks.

There are specific exceptions to this General Rule.
At times, a post-injury loss of earnings IS NOT compensable as a wage loss, where the wage loss attributed to "economic conditions".

Donahay v. WCAB (Skills of Central PA Inc.), No.869 C.D. 2014, is a reported decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on February 4, 2015, which discusses one of the exceptions to the General Rule regarding compensation for post-injury wage loss.

Factual and Procedural Background

Employee injured her right arm in February 2011 while working as a team leader and residential services assistant.
Employer initiated total disability benefits via an Agreement for Compensation (LIBC-336).
Employee Average Weekly Wage (AWW) was $816.48.
Her temporary total disability (TTD) rate was $547.04 per week.

Employee returned to her job in August 2011, with:
(i) restrictions on her physical duties and
(ii) earning less than her pre-injury AWW.

In February 2012 Employer Filed a Petition for Termination of benefits based upon a medical examination of Sanjiv Naidu, M.D.
Employer filed a Petition for Suspension of benefits as of March 2012, asserting employee was capable of performing her pre-injury job.

WCJ Proceedings

The residential services assistant works with mentally challenged adults. These duties include cooking, cleaning and helping clients with activities of daily living.
The team leader oversees the RSA and prepares work schedules, site reports and schedules medical appointments for the clients.

In August 2011, when Employee returned to work, her physical restrictions did not affect her ability to perform her RSA job duties.
In October 2011 employee resumed her team leader duties.

Employee testified she was performing the same job she did at the time of injury; one day a week she performs paperwork, the remainder of the week she cares for clients.
Her physical restrictions did not impede her ability to perform her regular job duties BUT she disagreed with Dr. Naidu's opinion that she is fully recovered, as she did not feel capable of lifting over 50lbs (her physician's restriction) and she still experiences pain with certain activities.

AWW and PPD benefit entitlement issue.

At the time of injury employee earned $11.43 per hour.
When she returned to work her rate was $11.66 per hour.

Prior to her injury she worked a good deal of hours (80-85 hours per week) beyond her regular 40 hour work week, as the facility was short-staffed.
When she returned to work she said her physician limited her to 45 hour work week, so she limited her own work schedule. (Dr. Sensiba did not explicitly limit her work hours).

Employer HR administrator Teresa Burbidge testified that after her work injury, the Employer experienced significant funding cuts, such that limits were imposed on staff over-time hours and additional staff was hired to work at "straight pay".
Employee was working an unusual amount of overtime hours at the time of her injury, due to under-staffing.
Since her return-to-work, less overtime was available, BUT employee chose to limit herself to 45 hours per week.

Burbidge confirmed employee could perform her regular job duties, within her physician restrictions, as her clients were independent and required little direct care.

Employee medical expert was Paul R. Sensiba, M.D., her treating Board-Certified orthopedic surgeon. He testified she could return to work with maximum lifting up to 50lbs. The were specific lifting/carrying limits, BUT he did not limit the amount of hours she could work.


WCJ found Dr. Sensiba credible regarding the employee's return -to-work limits and rejected the medical opinion of Dr. Naidu for a termination.
WCJ found employee was not limited in her overtime work hours.
WCJ found Employer witnesses were credible regarding her work conditions.

WCJ found employee had returned to her pre-injury job, with reasonable restrictions .
WCJ found her residual impairment DID NOT result in a loss of earning power.

The extraordinary pre-injury overtime hours were temporary.
Employee's post-return loss of earnings resulted from her self-imposed limits on overtime and Employer's current overtime limits for all employees.

There was no causal relationship between the employee's loss of earnings and her work injury. (ff #15).
The Economic situation resulting in extraordinary overtime was rectified, resulting in reduced overtime for employee as well as other employees.

Employee's earning power was no longer affected by her work injury and she is no longer entitled to PPD benefits, even though her current earnings do not match her pre-injury earnings. 

Employee's PPD benefits were suspended, as;
(i) her injury was not causing her loss of earnings;
(ii) her combined wages and PPD benefits exceeded that of her fellow employee wages.


Employee appealed and argued the WCJ (and WCAB in its affirmation) erred as a matter of law in granting an order of suspension, where she suffered a loss of earnings.
Employee argued, as she returned to work with physical restrictions, her PPD benefits should not be suspended.

The Court reasoned, Section 306 (b)(1) entitlement to PPD benefits is limited to the decrease in earning power which is caused by the work injury.

A difference between pre-injury and post-injury earnings does not automatically entitle a claimant to partial disability benefits. citing Harle v. WCAB (Telegraph Press, Inc. ) (Pa. 1995).

In Harle a press operator injured his thumb and was released to return-to-work, without restrictions. However his employer went out of business. He secured a press operator job with another company, but his wage was $2.00 per hour less. He was not entitled to PPD benefits for that wage difference, as his loss was due to factors, other than the injury to his thumb.

Another case was referenced by the Court, regarding the employee's lack of entitlement to PPD benefits, where overtime hours were no longer available. In Trevdan Building Supply v. WCAB (Pope) (Pa. Cmwlth. 2010) a claimant was entitled to PPD benefits for loss of overtime hours when he returned-to-work but he could not perform overtime hours due to his injury.
However, in a subsequent time frame, PPD benefits were not available to claimant when all employees lost their overtime hours due to an economic downturn.

Note: Pope was similar to the instant Employee, as he was released to his time-of-injury job with restrictions, which restrictions did not require modification of his work duties. This was considered the equivalent of returning to work without restriction.

The Court rejected employee's argument that she should receive PPD benefits, as she returned to work with restrictions, similar to the claimant in Harper & Collins v. WCAB (Brown) (Pa. 1996).
Brown returned-to-work in a light duty position. Overtime work hours became unavailable to any employees due to economic circumstances. However, Brown was entitled to PPD benefits.

Here, employee returned-to-work in her regular job duties (not light duty).
Her medical restrictions do not affect her ability to perform her regular job duties.
The only work duties that could possibly exceed her restrictions, no longer existed (ex. wheelchair-bound patients, etc.).
Her current hourly wage exceeds her earlier hourly rate.
Her loss of overtime hours is the result of (1) the addition of staff and (2) the limitation of all employee overtime hours due to economic circumstances.

Note: the WCAB and Court did not address the legal argument regarding the suspension of benefits based upon the fact that the Employee's combined wages and PPD benefits exceeded those of her fellow workers, in violation of section 306 (b)(1).

Conclusion: For all of the above reasons, this employee is not entitled to the payment of partial disability benefits for the difference in her current earnings compared to her time-of-injury wages. 


1. The detailed facts presented, reflect the level of complexity required in the analysis of the employee entitlement to any partial disability benefits. It is not a simple comparison of the time-of-injury wage to the post-injury earnings. 

2. When assembling your information to propose a return-to-work remedy ... in addition to the matching of the physical restrictions to the work tasks, be mindful of the additional issues such as pay rates, work hours and overtime hours. 

Where employees customarily work overtime hours, remember that a 40 hour work offer will result in a PPD entitlement. Is this PPD status desired?

3. Carefully examine the medical expert restrictions (or work capabilities) to assess whether the "restrictions" actually apply to real, existing work tasks or job assignments. Can the employee perform their "regular" work duties?

4. The characterization of a "return-to-work" as one without restriction  raises a different legal standard and consequences, compared to a return-to-work, with restrictions.

In certain instances this can be the difference between a Suspension status and an obligation to pay ongoing  PPD benefits.

Review all of the aspects of the proposed return-to-work with your work comp team members.