Injured Worker in PA Can Reinstate From IRE; Testimony Required
A couple of months ago, we talked about the Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC) decision by the Commonwealth Court of Pennsylvania. This was the first time the Court addressed the PA Supreme Court decision in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), which struck the entire Impairment Rating Evaluation (IRE) process from the Pennsylvania Workers’ Compensation Act (Act).
As a brief refresher, the IRE provision of the Act allowed a workers’ compensation insurance carrier to have an injured worker undergo an evaluation, after the injured worker received total disability benefits for two years. This evaluation, known as an IRE, would change the status of benefits to “partial” from “total” if the injured worker was less than 50% whole-body impaired by the work injury (note that 99.9% of injured workers are less than 50% whole-body impaired; that is a ridiculously high standard). While this would not impact the amount of benefits an injured worker received, it would start the clock ticking on the 500 week maximum entitlement.
The decision in Protz struck the entire IRE provision from the Act, finding it unconstitutional. This left attorneys who represent injured workers in PA needing answers to how this would impact the many injured workers already now receiving “partial” disability benefits due to an IRE.
It was the decision in Whitfield which found that the injured worker could challenge the partial disability status, and obtain reinstatement to total disability status. On the bad side, this decision also required a finding by the Workers’ Compensation Judge (WCJ) that the work-related injury continued. This, of course, seems an illogical result to us, as there is no longer a section of the Act allowing a modification of benefits to partial, so why should the injured worker have any burden at all.
Since the injured worker in Whitfield had exhausted her 500 week maximum entitlement to partial disability benefits, we had hoped that an injured worker who had not done so may not have this additional burden.
Unfortunately, the Commonwealth Court of Pennsylvania recently decided the matter of Timcho v. Workers’ Compensation Appeal Board (City of Philadelphia), where the injured worker was still within the 500-week period. The Court cited to the Whitfield decision, and made an identical finding. There was no distinction by the Court as to the status of the 500-week period.
Again, we are disappointed that an injured worker in PA faces a burden for reinstatement, when the action that caused such a change in the first place has been found unconstitutional. How is it fair for a workers’ compensation insurance carrier to continue to derive benefit from a statute that no longer exists?