PA Court Addresses Requirement for Automatic Change in IRE Provision

An often litigated provision within the Pennsylvania Workers’ Compensation Act (Act) is the 1996 addition, which provides workers’ comp insurance carriers with an ability to change “total” disability status to that of “partial” disability. This is known as the Impairment Rating Evaluation (IRE) process. The significance of such a change is dramatic – while there is no limit on the duration an injured worker can receive “total” disability benefits in PA, “partial” disability benefits can be received for a maximum of 500 weeks. Since this is such a frequent topic we see in the Courts, and in practice, we have a page on our website dedicated entirely to the IRE process. This area is also a frequent topic of our blog posts.

If the IRE is requested within 60 days of the injured worker reaching 104 weeks of total disability, the workers’ compensation insurance company can change the status of benefits automatically, simply by filing a form (provided, as discussed on our website, the whole body impairment rating is less than 50%). If the insurance carrier files the request before the 104 weeks expire, a resulting IRE is not valid. This can, and has, made for some very technical litigated cases.

As an example, the Commonwealth Court of Pennsylvania recently addressed what “requested” means in this context, in the case of The Village at Palmerton Assisted Living v. Workers’ Compensation Appeal Board (Kilgallon). Given the complex nature of the case, a careful review of the facts is necessary.

In this case, the injured worker hurt her back and knee on September 27, 2007. The workers’ comp insurance carrier filed a Request for Designation of a Physician to Perform an IRE on September 21, 2009. The Pennsylvania Bureau of Workers’ Compensation designated a physician as requested. However, the injured worker did not actually reach 104 weeks of total disability until November 28, 2009. Therefore, the initial Request for Designation was too early, and was void.

The workers’ compensation insurance carrier wrote a letter to the Bureau after November 28, 2009, acknowledging that its initial Request for Designation was untimely, and asking that the Bureau designate a new physician to perform the IRE. The initial letter from the carrier was sent within the 60-day period. Through further correspondence, the Bureau first advised the workers’ comp insurance carrier that they could consider the first Request for Designation as new again. Later, the Bureau designated a new physician to perform the IRE. Both the subsequent designation, and the eventual IRE, were performed after the 60-day window, after the end of the 104 weeks of total disability.

After the eventual IRE found an 11% whole body impairment for the injured worker, the workers’ comp insurance carrier filed a Notice of Change of Workers’ Compensation Disability Status, alleging the right to automatically change the status of the injured worker from total to partial (as if they had been within the 60-day window).

The injured worker filed a Review Petition to challenge the automatic change of status. Documents were submitted by both sides, showing the dates of each event described above, though the workers’ compensation insurance carrier did not submit the IRE report or any deposition testimony. The Workers’ Compensation Judge (WCJ) granted the Petition filed by the injured worker, finding that the Request for Designation was not filed timely (within the 60 day window), so the workers’ comp insurance carrier could not take advantage of the automatic change of status. Specifically, the WCJ concluded that the delay in the IRE physician being designated was due to the workers’ compensation insurance carrier filing its Request for Designation prematurely. Additionally, the WCJ concluded that the subsequent request should have been made on the appropriate Bureau form, by filing another Request for Designation. Since there was no evidence submitted to support that the IRE was done and the injured worker was less than 50% impaired, the WCJ denied any relief to the workers’ comp insurance carrier.

On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed the decision of the WCJ. The WCAB felt that to use the automatic change of status, both the Request for Designation and the Impairment Rating Evaluation Appointment form (which notifies the injured worker of the date of the IRE appointment) must be submitted within that 60 day window. Since the workers’ comp insurance carrier did not submit both forms within that 60 day window, the decision of the WCJ was correct.

The Commonwealth Court of Pennsylvania, however, then reversed the WCAB, finding that the request was made within the 60 day window. The Court concluded that the term “request” as used in the Act encompasses only the Request for Designation. The date this document is filed is the date for which the 60-day window would be used. After all, said the Court, the Impairment Rating Evaluation Appointment form requires information which must be obtained from the Bureau (such as the identity of the IRE physician), so that is out of the control of the insurer. As to whether the Request for Designation was timely here, the Court found that it was. Since the correspondence with the Bureau about another designation took place within the 60 day window, the Court found the absence of another actual Request for Designation unnecessary, and “is elevating form over substance.”

We, however, side with the dissent authored by Senior Judge Rochelle S. Friedman, who believed that the filing of another Request for Designation was necessary to obtain the automatic change being sought. As Judge Friedman indicated, “the automatic change requires strict compliance with the statutory requirements.” These requirements simply were not met in this case.

We know that this is one of the longer, if not the longest, blog entries we have yet to post. Unfortunately, this highlights both the technical and complex nature of the Act, including the IRE process. It should serve as a reminder that no injured worker should attempt to swim these waters alone. Protect your rights and get an experienced PA workers’ compensation attorney, Certified as a Specialist in Workers’ Compensation Law, as both of our attorneys are.