Injured Workers in PA Have 60 Days to Challenge IRE or Potentially be Forever Barred

Sometimes, we will meet with an injured worker who is already receiving PA workers’ compensation benefits. The injured worker may ask, “Why do I need to have an attorney if I am already receiving benefits?” The answer is that the rights of the injured worker in Pennsylvania can be impacted by inaction as much as by action. That paper which is disregarded can come back to haunt an injured worker for years.

An example of this situation came in Wingrove v. Workers’ Compensation Appeal Board (Allegheny Energy). Here, the employee injured his back in 2002. The injury was accepted as a “low back strain.” The injured worker continued to work until May 5, 2003, when he had lumbar surgery (it is amazing that workers’ comp is the only area where a person needs surgery for a “strain” – unless, perhaps, the workers’ comp insurance carrier accepted the injury as something less than it really was, of course).

In 2005, after the injured worker received total disability workers’ compensation benefits for 104 weeks (two years), an Impairment Rating Evaluation (IRE) was performed and a “whole body impairment rating” of 11% was found. As we have previously discussed, an IRE resulting in an impairment rating of less than 50% may result in a shifting of benefits from total to partial status. That is what happened here; the IRE was not challenged.

In 2009, the injured worker filed three Review Petitions. One was to add depression and other psychiatric injuries, and chronic and severe low back pain. The second was to add post-laminectomy syndrome and chronic L5 radiculopathy. Finally, the third was to challenge the 2005 IRE since it did not account for these conditions.

After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the first two Review Petitions (except for one aspect of the alleged psychological injury), but denied the third. The WCJ found that the 2005 IRE could only be challenged within 60 days of when it was issued. Therefore, the only way for the injured worker to change the status back to total would be to prove he had a whole body impairment rating of at least 50%. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The Commonwealth Court of Pennsylvania affirmed the decision of the WCJ. Once the injured worker failed to challenge the IRE within 60 days of it being issued, the IRE became “beyond challenge.” Since the injured worker then failed to prove that he was at least 50% impaired, the status could not be changed, despite the addition of these other work-related conditions. While the new conditions would now count toward rising to the 50% level, that absurd a standard remained out of reach. Had the injured worker been represented in 2005, the IRE could have been challenged and set aside, since it did not include the entire extent of the true work injury. And THAT is why all injured workers should have attorneys.

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