Continuing Challenges to the Employer Right to an Impairment Rating Evaluation of an Injured Employee

 The Impairment Rating Evaluation remedy in the Pennsylvania Workers Compensation Act

In 1996, Pennsylvania Employers and Insurers were provided a remedy to limit the duration of total disability benefits via an Impairment Rating Evaluation (IRE). This 1996 Amendment to the Pennsylvania Workers Compensation Act was declared to be an unconstitutional delegation of legislative authority by the 2017 PA Supreme Court decision at Protz.

The PA General Assembly enacted Act 111 on October 24, 2018 , to replace the unconstitutional provisions with nearly identical language at section 306(a.3), which was effective immediately. A significant difference was that an IRE must be conducted utilizing a specific edition of the AMA Guides, the 6th edition, second printing April 2009. (Eliminating the flawed "most recent edition" language)

However ... challenges to the "new" IRE provisions continue ... including a challenge to the constitutionality of the new language.

These legal challenges often result in claimant legal counsel advising the Employer/Insurer that their client will not attend a scheduled IRE appointment. Their response results in the filing of an Employer petition to Compel an Expert Evaluation. When assigned to a Workers' Compensation Judge, at the time of hearing, an injured worker is often ordered to attend an IRE appointment. Most frequently this is accomplished via a final order.

In an unpublished Memorandum opinion, the Commonwealth Court addressed a Workers’ Compensation Judge’s Order to Compel an injured worker to attend an Impairment Rating Evaluation, in Cantonese v. WCAB (RTA Services Company Inc.), 1739 C.D. 2019, Memorandum Opinion by Judge Covey filed June 12, 2020. 

The basis facts are not disputed. Employee was injured on December 11, 2013 in a work-related injury.  He received workers’ compensation benefits pursuant to a Notice of Compensation Payable. On January 31, 2019, Employer filed a petition seeking to compel claimant’s attendance at an impairment rating evaluation (IRE).  Employer alleged that employee failed to attended an IRE that was scheduled for January 28, 2019. 

The Workers’ Compensation Judge granted the Employer petition on May 3, 2019.  Employee appealed that decision to the WCAB, arguing that the Workers’ Compensation Judge erred by ordering him to appear at an IRE because Act 111 of 2008 was unconstitutional.  On November 5, 2019, the WCAB quashed employee’s appeal as interlocutory.  Employee appealed to the Commonwealth Court. 

In the decision to affirm the WCAB, the Commonwealth Court cited the well-established principle that “where an order does not dispose of all claims or all parties, it is interlocutory and not appealable to this court”.  Citing: Swartz v. WCAB (Cheltenham York Road), 869 A.2d 35 (Pa.Cmwlth. 2005).

“Furthermore, this court has held that an order directing a claimant to submit to a medical examination is interlocutory.”  Groller v. WCAB (Alstrom Energy Sys.), 873 A.2d 787 (Pa.Cmwlth. 2005). 

In Groller, the Court explained:“Because the IRE order merely stated that the claimant was required to participate in the IRE and neither affected the claimant’s benefits nor affected the employer’s obligation to pay benefits, the IRE order was a non-appealable, interlocutory order.  Because the IRE order is interlocutory, it is not a final order …. “ 

In the instant case, as the order on review before the WCAB was the Workers’ Compensation Judge’s order directing employee to appear for an IRE, the WCAB correctly concluded that employee’s appeal was interlocutory and it properly quashed employee’s appeal.  For these reasons, the Commonwealth Court affirmed the decision. 

This is not a new, ground-breaking ruling. Rather this result follows the similar reasoning in Watson v WCAB (Hillsberg) April 15, 2020. However, these decisions are offered as a reflection of the trend in rulings by WCJ's, the WCAB and Commonwealth Court.