******************REVERSED BY SUPREME COURT OF PENNSYLVANIA – SEE BLOG ENTRY 1/20/17********************
One of the big changes to the Pennsylvania Workers’ Compensation Act in the overhaul of 1996 was the introduction of the Impairment Rating Evaluation (IRE). This has become such a significant part of the Act that our website has an entire section devoted to the IRE process. In essence, an IRE allows the workers’ comp insurance carrier to change the status of an injured worker from “total” disability (for which there is no time limit) to “partial” disability (for which there is a maximum of 500 weeks). But what if the IRE fails to include the entire work injury? A troubling recent decision by the Commonwealth Court of Pennsylvania holds that the IRE remains valid, even though it failed to consider the entire work injury.
In the matter of Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.), the employee suffered electrical burns and nerve injury to both of his hands. After he received 104 weeks of total disability benefits, the workers’ compensation insurance carrier filed for an IRE. The resulting evaluation concluded there was a 6% whole body impairment. Since the IRE was performed within 60 days of the expiration of that 104 weeks, the change to partial disability status was automatic. The injured worker, however, filed a challenge to this change, a Petition to Review Compensation Benefit Offset, alleging that his work injury included more than just that to his hands.
Before the Workers’ Compensation Judge (WCJ), the injured worker presented evidence that he also suffered adjustment disorder with depressed mood and Post-Traumatic Stress Disorder (PTSD). The WCJ found the witnesses and evidence presented by the injured worker to be credible, and these additional conditions were added to the work injury. Since the IRE did not account for these other conditions, the WCJ found the IRE was invalid.
On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the decision of the WCJ. The WCAB concluded that the injured worker was aware of these conditions prior to the IRE and failed to try to add such conditions. Since the IRE was properly conducted on the injuries which were accepted at the time of the IRE, the results of the IRE were valid.
The Commonwealth Court of Pennsylvania then affirmed the decision of the WCAB, and agreed the IRE remained valid. While the injured worker has the ability to challenge the validity of an IRE if the challenge is filed within 60 days of the IRE, the injured worker cannot successfully change the injury which existed at the time of the IRE (or, rather, changing the description of injury after the IRE does not impair the validity of the IRE). The Court feels this decision forces the injured worker to “be proactive as the end of the 104-week period is approaching and determine whether any work-related injuries should be added to the NCP so they are considered if or when an IRE is requested and performed.”
While we generally try to report on these appellate cases in as objective a way as possible, we really must take issue with this decision. Supporting records go to the insurance carrier along with bills, so there seemed to be no dispute both the injured worker AND THE INSURANCE CARRIER were aware of these conditions at the time of the IRE. It was the insurance carrier who sought to change the status, so could the insurance carrier not have accounted for these additional conditions? To simply allow the insurance carrier to proceed, leaving traps for any unwary injured workers, is shameful for an Act said to be created for “Humanitarian Purposes.” Though the Court thinks this decision will lead to efficiency, it will absolutely be quite the opposite. There will now be a flood of needless Petitions to Review, which, by the way, will lead to the attorneys taking a fee (since litigation must commence) when the attorney would otherwise not do so (further harming injured workers). This decision is incredibly damaging and quite unfair to the injured worker. We sincerely hope an appeal is requested from the Supreme Court of Pennsylvania.
******************REVERSED BY SUPREME COURT OF PENNSYLVANIA – SEE BLOG ENTRY 1/20/17********************