Tuesday, February 28, 2017

Commonwealth Court PROTZ decision impact upon prior Unappealed IRE Determinations

Past Unappealed IRE Determinations are not invalidated by the Commonwealth Court decision in Protz.

At this time, the issue of the constitutionality of the impairment rating evaluation (IRE) remedy of section 306(a.2) of the Workers’ Compensation Act remains pending before the Pennsylvania Supreme Court. 

Since the September 18, 2015 en banc decision of the Commonwealth Court in Protz v. WCAB (Derry Area School District), there have been several additional appellate case reports and several additional challenges to the impairment rating evaluation procedures.

                A number of questions remain unanswered at this point. However, the Commonwealth Court provided its analysis of the affect of the 2015 Protz decision in regards to prior unappealed impairment rating evaluations.

                 Riley v. WCAB (Commonwealth of PA) No. 238 CD 2016, a panel decision of the Commonwealth Court authored by Judge Hearthway on December 8, 2016 addressed this issue. The Court affirmed the decision of the Workers’ Compensation Judge and the Workers’ Compensation Appeal Board - that an injured worker could not successfully file a motion in October 2015 to vacate the prior 2003 impairment rating evaluation, after publication of the Protz decision.

Factual Background

                Employee sustained multiple work related injuries after an assault by a patient at the health care facility where she was employed. These August 2000 injuries were acknowledged via a Notice of Compensation Payable. Total disability benefits commenced. In April 2003, Employee underwent an impairment rating evaluation. Barry Schnall, M.D. He utilized the Fifth edition of the American Medical Association Guides and assigned Employee a 21% impairment rating for the work-related injuries to her nose, face, head and neck. An LIBC Notice of Change of Workers’ Compensation Disability Status dated May 5, 2003 was filed. Accordingly, Employee would receive indemnity wage loss benefits for partial disability status for a statutory duration of 500 weeks.

                In August of 2012 Employee filed a Petition for Review to seek to amend the Notice of Compensation Payable to include additional injuries to her shoulders. Employee also filed an additional petition alleging that Dr. Schnall failed to consider the full extent of her injuries.

                Before the WCJ, Employee presented medical expert testimony from her treating physician Dr. Menkowitz about her injury and treatment following the 2000 assault. Employer presented the medical expert testimony of Dr. Schmidt based upon his December 2012 IME of Employee. Dr. Schmidt concluded that the employee’s shoulder injuries were not work related.

WCJ decision 

                The WCJ decision in August 2014 found Employer’s medical expert testimony was more credible than Employee’s medical testimony. Employee failed to establish the NCP was incorrect, that she had sustained injuries other than those listed on the NCP.  Employee also failed to demonstrate that her work related impairment rating was equal to or greater than 50%. 
Employee appealed this decision to the Pennsylvania Workers’ Compensation Appeal Board.

                In May 2015, when the WCAB appeal was pending, Employee filed a motion to the Appeal Board to vacate the 2003 IRE determination in light of the Commonwealth Court decision in Protz v. WCAB (Derry Area School District). 

WCAB decision 

                The January 2016 WCAB decision affirmed the findings of fact and conclusions of law of the WCJ. The Appeal Board denied the Employee’s petition for review of the NCP. The Appeal Board denied the Employee’s motion to vacate the 2003 IRE determination. The Appeal Board found that the findings of fact of the WCJ were supported by substantial evidence and the WCJ credibility determination was reasoned.

                The Appeal Board found that Employee could no longer challenge the 2003 IRE determination as she failed to do so within the 60 day time period, as set forth in §306(a.2) (2) of the Act. 

Furthermore, she did not present any medical evidence of a new impairment rating, a rating of more than 50% as required by §306(a.2)(2). Citing: Johnson v. WCAB (Sealy Components Group) 982 A. 2d 1253 (Pa. Cmwlth. 2009).

                The Appeal Board found that Employee failed to challenge the constitutionality of the IRE until her October 2015 motion to vacate. On this basis the Appeal Board concluded Employee was precluded from raising that constitutionality issue before the Appeal Board. Employee petitioned for review of this Appeal Board decision to the Commonwealth Court.

Commonwealth Court Decision

                Commonwealth Court affirmed the decision of the Workers’ Compensation Judge and Workers’ Compensation Appeal Board. Employee argued that the WCJ decision to reject her medical expert testimony regarding her shoulder condition was not supported by accurate objective reasoning. Employee argued that the Appeal Board erred when it determined that the IRE properly evaluated her level of impairment utilizing the Fifth Edition of the AMA guidelines.

                The Commonwealth Court found that the WCJ determination regarding the lack of a relationship of the shoulder condition to the work injury was supported by substantial evidence. The WCJ decision pointed to the evidence of arthritis Employee’s shoulders, which predated the work injury. The WCJ found the Employer medical expert testimony to be more credible of the testimony of her medical witness. On this basis, the NCP did not incorrectly describe the work injury.

                The Commonwealth Court concluded that the September 2015 Protz decision does not invalidate the Employee’s 2003 impairment rating evaluation. This case is not controlled by the holding in Protz. In this case, Employee was evaluated by Dr. Schnall using the Fifth Edition of the AMA guides rather than the Fourth Edition as required under the ruling in Protz. However, the substantial distinction is that the claimant in Protz appealed the IRE determination within 60 days of the LIBC Notice of Change. In this case Employee waited nearly 10 years after the notice to challenge the use of the AMA guides in her 2003 IRE. The statutory language at §306(a.2)(2) is clear. Claimants have 60 days to appeal a reduction in the disability benefits status following a notice prior to the reduction becoming final. Here the Employee did not appeal within that time period, thereby waiving the right to challenge the 2003 IRE determination.

                The Commonwealth Court noted that a claimant may challenge an IRE during the 500 weeks period of partial disability benefit status by showing a revised impairment rating of equal or greater than 50% pursuant to §306(a.2)(4). In this case, employee failed to present such a challenge. She did not present any evidence of a new impairment rating of at least 50%.

                The Commonwealth Court noted that its prior decision at Johnson v. WCAB (Sealy Components Group)  addressed the waiver of an IRE challenge when the determination went uncontested past the initial 60 days. That claimant waived her argument that her constitutional due process rights were violated as she failed to timely file an appeal from the IRE determination.

                Similarly, in Wingrove v. WCAB (Allegheny Energy) 83 Atlantic 3rd 270 (Pa. Cmwlth. 2014) the court determined that the claimant was barred from challenging an IRE which used a subsequent edition of the AMA guides when he failed to challenge his IRE within the 60 days statutory time period nor did he present evidence that his impairment rating was equal or greater than 50%.

               Conversely, in Ruse v. WCAB (Valley Medical Facilities Sewickley) Pa. Cmwlth. January 13, 2016, the court remanded an IRE determination made utilizing the Fifth and Sixth Editions of the AMA guides where that claimant preserved the right to appeal the validity of the IRE by challenging the IRE determination within the 60 day time period.

                In the Riley decision, the Court noted that this Employee underwent an IRE in 2003 and that determination went unchallenged by employee until the 2015 decision in Protz. The Court emphasized that the decision in Protz does not give the employee a second chance to appeal her 2003 IRE, where she failed to raise her claim within the time period established at §306(a.2)(2).

                PRACTICE POINTERS:

1. Continue to file IRE Requests for designation of a medical expert to perform an impairment rating evaluation within 60 days of the 104th week of total disability status.

2. Request the IRE medical expert perform an IRE assessment of the total body impairment based upon the 4th Edition and 6th Edition of the AMA Guides.

3. Unappealed IRE determinations are final. An injured worker may request review of that determination, if there is medical expert evidence of an impairment rating of 50% or greater than 50%. This review may be filed during the 500 week period of partial disability benefit status. 

4. The Pennsylvania Supreme Court will rule on the constitutionality of the IRE remedy in the near future. One may only speculate as to the remedy available after that decision. 


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