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.

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