Possible Future Surgery Does Not Prevent Finding of MMI in PA Workers’ Comp

There have been several entries on our blog dealing with Impairment Rating Evaluations (IREs). Some deal with the procedure used by workers’ comp insurance carriers to turn the IRE into a change in status, from total disability to partial. Others deal with the magic 50% level that an injured worker must reach to avoid this change. A recent case, however, dealt with Maximum Medical Improvement (MMI), a finding that is required before the insurance carrier can even get an IRE.

A basic place to start this conversation would be the meaning of MMI. According to the American Medical Association “Guides to the Evaluation of Permanent Impairment,” the book we use for the IRE process, MMI is defined as:

a status where patients are as good as they are going to be from the medical and surgical treatment available to them. It can also be conceptualized as a date from which further recovery or deterioration is not anticipated, although over time (beyond 12 months) there may be some expected change . . .”

In the case of Neff v. Workers’ Compensation Appeal Board (Pennsylvania Game Commission), the injured worker had chronic lateral epicondylitis of the right elbow. An IRE was performed, and, after finding the injured worker had reached MMI, the examiner found a 1% whole body impairment (WBI). Based on this rating, the workers’ comp insurance carrier filed a Petition to Modify, to change the status of the injured worker to partial disability from total. This Petition was granted by the Workers’ Compensation Judge (WCJ). On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed.

In appealing the case to the Commonwealth Court of Pennsylvania, the injured worker pointed out that the IRE examiner “agreed that surgery for Claimant’s elbow condition would ‘be a reasonable treatment option’ and . . . he did not disagree that there was a 25% chance that the surgery would help with Claimant’s problems.” Based on these concessions, the injured worker argued that she could not be seen as having reached MMI.

Unfortunately for the injured worker, the Court disagreed and affirmed the decision of the WCJ. The IRE examiner testified that the injured worker had reached MMI, and that was found by the WCJ as credible. The examiner had considered the possibility of surgery in determining whether MMI had been reached and felt it had. This was good enough for the Court.

The first thought here is how critical it is for the injured worker to prevail before the WCJ, who is the ultimate finder of fact. The Court gave great deference to the findings of the WCJ here. However, the concessions made by the examiner here really do seem to strike at the core of the meaning of MMI. There really is a surgery that would, he conceded, be “reasonable” for her to have. This could improve or worsen her condition, the examiner testified. How can that possibly be consistent with the meaning of MMI described above?