We have previously discussed the concept of an Impairment Rating Evaluation (IRE) in Pennsylvania Workers’ Compensation. By now, our readers know that the IRE is a tool the workers’ comp insurance carrier can use to limit benefits in most cases to a maximum of around 11 and a half years. While the IRE is not designed to lead to a high burden for the insurance company, their success is not guaranteed.
Take, for example, the recent case of Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal Board (Ketterer), decided by the Commonwealth Court of Pennsylvania. Here, the claimant hurt his neck and back in a work-related car accident, and began receiving workers’ compensation benefits.
After the injured worker received two years of total disability benefits, the comp insurance carrier obtained an IRE, which found that he had reached maximum medical improvement (MMI) and had a whole person impairment rating of 16%. Since this is lower than the ridiculously high standard of 50%, the insurance company filed a Petition to Modify benefits, changing the status from “total” to “partial,” and starting the clock on the entitlement to 500 weeks of partial disability benefits (the amount of the benefit does not change, just the duration). This IRE was performed by a physician approved by, and selected by, the PA Bureau of Workers’ Compensation (not the insurance carrier).
The Workers’ Compensation Judge (WCJ) denied the Petition for Modification because the physician who performed the IRE, despite being selected and approved by the Bureau, no longer had a clinical practice. Under the Pennsylvania Workers’ Compensation Act, a physician who performs an IRE must be “active in clinical practice for at least twenty hours per week.” The doctor here testified that her entire practice was now administrative or legal – she had no “patients.” The decision of the WCJ was affirmed by the Workers’ Compensation Appeal Board (WCAB).
On appeal to Commonwealth Court of Pennsylvania, the workers’ comp insurance carrier argued that “clinical practice,” as that term appears in the Act, does not require any patient contact, but simply being current in the medical community. The Court rejected this argument and affirmed the decision of the WCJ. The legislature’s use of the term “clinical” in the Act must be given meaning, the Court said. Unless otherwise explained, the Court felt that “clinical” must be taken to mean treatment or care to patients, something that the physician in this case lacked.