Commonwealth Court holds Impairment Rating Evaluation valid for claims with older dates of injury

Time to review those old dusty claims files: there may be a new option to limit wage loss benefits for accepted workers’ compensation claims with older dates of injury.

On January 27, 2023, the Commonwealth Court circulated its Opinion in the matter of the City of Pittsburgh v. Ronald Dobbs.

The case concerned an Impairment Rating Evaluation (“IRE”) ?for a nearly thirty year old injury and opens the door such evaluations on all claims with older dates of injury.

Act 57 Impairment Rating Evaluations

The IRE provisions of Pennsylvania’s Workers’ Compensation Act were passed as part of Act 57 of 1996.

The original Act 57 IRE provisions provided that after an injured worker had received 104 weeks of total disability benefits, employers were permitted schedule an Impairment Rating Evaluation.

The IRE is conducted by a qualified physician designated by Pennsylvania’s Bureau of Adjudication. The IRE physician evaluates the claimant and grades the claimant’s whole body impairment rating according to Guides published by the American Medical Association.

According to Act 57, if the IRE physician determined that claimant had a whole-body impairment rating of less than 50%, the employer was permitted seek to modification of the worker’s wage loss benefits from total to partial.

Modification via the IRE process does not change the rate of benefits workers receive but does limit the receipt of such partial disability benefits to five hundred weeks total.

Act 111 of 2018 Impairment Rating Evaluations

In 2017, the Supreme Court of Pennsylvania held in Protz that the IRE provisions were an unconstitutional delegation of legislative authority.

Following the Protz Decision, Pennsylvania’s legislature stepped in to restore the IRE provisions via Act 111 of 2018.

The new legislative statutory language for the IRE provisions included some explicit substantive changes. To avoid modification of wage loss benefits from total to partial, claimant’s now only needed an whole body impairment rating of 35% (as opposed to 50% per Act 57).

Since its passage, claimant’s attorney have been creatively seeking to invalidate this new iteration of the IRE provisions (Act 11 of 2018) through constitutional challenges which the Courts (so far) have largely rejected.

City of Pittsburgh v. Ronald Dobbs

The case concerned an IRE for a nearly thirty-year-old accepted workers’ compensation claim (DOI: 12/10/93). ?After the passage of Act 111 of 2018, claimant was seen for an IRE on March 19, 2021, which resulted in an whole body impairment rating of zero percent. Defendant filed a modification petition, and the Judge found the defendant’s evidence credible, but denied the petition because claimant’s injury from 1993 pre-dated Act 57 of 1996 which created the original IRE provisions. Defendant appealed and the Workers’ Compensation Appeal Board affirmed. Defendant appealed again to the Commonwealth Court of Pennsylvania which has held:

although Claimant’s injury preceded the institution of the IRE process, application of Act 111 did not automatically change his disability status or otherwise deprive him of vested rights under the Act. Rather, Act 111 simply provided a mechanism for Employer to pursue a change in Claimant’s disability status by requiring medical evidence that Claimant’s whole-body impairment was less than 35%. Because Claimant’s IRE occurred after the enactment of Act 111, it did not constitute a retroactive application of the law. Since Claimant already received 104 weeks of total disability benefits, Employer was permitted, under Section 306(a.3)(1), to seek an IRE, a modification based on its results, and a credit for disability benefits paid.

The Board’s Opinion affirming the Judge’s dismissal of the defendant’s Modification Petition has been reversed.

It should be noted that the Commonwealth Court circulated this opinion as “unreported” and does not binding precedential effect. However, within the opinion itself, the court cites to prior unreported opinions and states that such opinion can be cited for persuasive value.

The “unreported” status of this opinion is also not necessarily final. Claimant may file an appeal to the Supreme Court of Pennsylvania. Even absent an appeal, the Court may still report an unreported within 30 days to today’s date.

Recommendations

Employer’s and insurers should review their older claims files with open wage loss benefits and consult with a qualified attorney to determine whether filing a request for an IRE is appropriate.