Tuesday, February 23, 2016

Challenges to IRE Determinations and the Waiver Argument

It seems that the year 2016 will be the year of the IRE - Impairment Rating Evaluation.
... and Challenges to the IRE!

Although this employer remedy first appeared in the Pennsylvania workers' compensation world in 1996 via the Act 57 amendments, the constitutionality of the IRE procedure was challenged in 2015, in the Commonwealth Court decision reported at: Protz v WCAB (Derry School District). (Pa. Cmwlth. 2015)

Protz declared that the portion of the IRE procedures which require the application of the "most recent version" of the AMA Guides to Evaluation of Permanent Impairment, was an unconstitutional delegation of legislative authority

Importantly, the Court did not throw out the entire remedy (as requested by claimant attorneys) rather the Court remanded the case for application of the 4th Edition of the AMA Guides. The 4th Edition was the AMA Guides edition that was in place when the statute was enacted  in 1996. 
Applications for Allowance of Appeal to the Supreme Court of Pennsylvania in Protz were filed in October 2015 and are presently pending before the Court. 
What to do in the interim???

In open cases, not yet decided by a WCJ decision,  Employer attorneys recommend the preparation of an addendum IRE report which utilizes the existing evidence, to perform a calculation of impairment in accord with the 4th Edition Guides. 

In some currently litigated cases, Claimant's continue to challenge the IRE results. The basis for these challenges are varied. Below we review a challenge based upon the sufficiency and propriety of the medical exam. Previous challenges to IRE determinations include: MMI status; injury description completeness; necessity of future surgery;  medical evidence competency; correct application of the Guides tables.

In cases already the subject of a final WCJ decision, which are currently pending on appeal
 ... there may be a WAIVER issue. The claimant attorney may have omitted a challenge to the constitutionality of the Guides.

If the Claimant has not raised and preserved the Protz constitutionality argument...
it may have been waived!

Attorney Stephen J. Fireoved, of the Chartwell Law Offices, Valley Forge office, recently obtained a successful result before the Commonwealth Court on this waiver issue. He serves as our guest contributor, to provide his "in the trenches" perspective:

In an unreported memorandum decision of a panel of the Commonwealth Court, authored by Judge Brobson, the Court affirmed the Workers' Compensation Appeal Board, which upheld the WCJ Decision and Order granting a modification of claimant status from total disability to partial disability based on an IRE determination. 
See: Timcho v. WCAB ( City of Philadelphia), No. 756 CD 2015, filed January 27, 2016.

Commonwealth Court Ruling 

The Commonwealth Court noted in a footnote that since claimant did not raise the constitutionality argument per Protz, "we need not consider the impact of our decision in Protz on this matter". 

We believe this is significant ruling , as claimant subsequently filed a Reinstatement petition seeking reinstatement from partial disability status to total disability status based on Protz argument .  (The IRE physician used the 6th Edition of the AMA Guides and not the 4th Edition). Employer's position was that the Reinstatement Petition should be dismissed as claimant was obligated to raise that constitutional argument in the underlying litigation, which was the subject of the ___-- Commonwealth Court decision. In failing to initially raise this issue in the litigation of the  underlying IRE determination , claimant waived his constitutional claim and cannot "get a second bite at the apple" by filing a new Petition before the WCJ. 

 Background and Procedural History 

The case involved a work injury of 5/20/08 in the nature of "myocardial infarction". The City filed a Modification Petition based on an IRE performed by Lance Yarus, D.O., an orthopedic surgeon, not a cardiologist. This examining expert found that Claimant had reached MMI and assigned a whole body impairment of 32% using the 6th Edition of the AMA Guides. 

Claimant challenged the IRE and argued that Dr. Yarus failed to order objective tests to support his IRE. The WCJ found that objective tests were performed in 2009 by Dr. DePace and that Dr. Yarus did in fact review and consider those tests in conjunction with his determination that claimant had reached MMI by the date of his IRE. As Dr. Yarus found claimant Impairment Rating to be below fifty (50) percent, the WCJ modified claimant's benefits from TTD to TPD. 

Claimant appealed and the Commissioners of the Workers' Compensation Appeal Board affirmed the WCJ decision, concluding that the AMA Guides do not specifically require testing as part of the IRE process. The requirements for physicians conducting IREs are that: he/she is a Commonwealth-licensed physician;  certified by an American Board of Specialties;  active in clinical practice for at least twenty hours per week. 

Claimant filed a petition for review with the Commonwealth Court raising the sole question of whether the Board erred in affirming the WCJ's decision, as they believed Dr. Yarus did not comply with the Guides. Claimant argued that Section 4.3a of the Guides requires IRE physicians to order tests as part of the IRE process and that such tests must be conducted contemporaneously with an IRE. He contended that Dr. Yarus failed to comply with this provision because (1) he did not order such tests as part of the IRE process; and (2) he admitted that he did not personally assess Claimant's left ventricular function but, rather, relied on the 2009 report. Those tests had been performed relative to Claimant's heart attack and the treatment for his coronary condition. Claimant contended that the opinion of Dr. Yarus was not competent to support his impairment rating and that the Board erred in concluding that Dr. Yarus's opinion was sufficient to support the WCJ's decision to grant the modification petition.

 Commonwealth Court Reasoning

The Commonwealth Court disagreed with Claimant's argument that the timing of the cardiac testing negated the reliability of such testing for the purpose of the IRE rating in this matter. The Court noted that the Guides state that physicians may render an impairment rating generally 3 to 6 months following treatment for a work related condition. The Act does not prohibit the use of tests that were taken within the first 104 weeks following a work injury. 

In this case, Claimant had a catheterization procedure and stents implanted in 2008. Dr. DePace determined in 2009 that claimant's left ventricular function was intact. The evaluation of Dr. DePace occurred more than 3 to 6 months after Claimant's 2008 injury and treatment for his myocardial infarction. This testing was appropriate 3 to 6 months after treatment occurred. The Guides place no other limitations on the performance of tests used to determine am impairment rating. Therefore Dr. Yarus's reliance upon the report of Dr. DePace and the testing performed in 2009 complied with Section 4.3a of the Guides. Finally, Dr. Yarus satisfied the statutory guides to be qualified as an IRE. As such, the Court affirmed the Board.


1. Stephen Fireoved pursued an aggressive strategy. He responded to claimant arguments by reliance upon the statutory language. Although claimant may question the propriety of a non-cardiologist performing an IRE, the work comp statute requirements do not necessitate any particular specialty. We recommend requiring claimant attorney to identify and enumerate the specific challenges to the IRE by claimant at the time of the first hearing.
Know exactly what they are arguing!

2. For all cases pending before the WCAB, determine if the waiver argument applies to claimant
appeal. File a written motion to strike any argument which is not preserved and/or file an appellate brief documenting the waiver argument.

3. For petitions subsequent to an IRE determination,  note the limited circumstances under which one may "appeal" the IRE determination; the challenge must be based upon a determination that the claimant meets the threshold impairment rating of 50% of impairment. See: 306 (a.2) (4).

4. KEEP FILING IRE REQUESTS for Designation of a Physician to Perform an Impairment Rating Evaluation, LIBC-766. The IRE remedy is a significant method for Employers and Insurers to limit the duration of future indemnity wage loss benefit liability. The Commonwealth Court did not strike down the statute. The request for further appellate review by the Supreme Court of Pennsylvania remains pending.

Confirm that your IRE physician will utilize a 4th Edition and a 6th Edition calculation!

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