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Section 306(a.2) of the Pennsylvania Workers’ Compensation Act provides for a determination of whole body impairment due to the compensable work-related injury after an injured worker receives 104 weeks (2 years) of total disability compensation, unless otherwise agreed to by the parties.
This, unfortunately, is a tool for insurers to put a ceiling on their exposure. If the impairment rating- stemming from an IRE- Impairment Rating Examination- results in an impairment of less than 50%, the the injured worker’s status converts to a partial disability status, and while the amount of compensation isn’t affected, there is a 500 week limit on partial disability. 500 weeks is about 9.5 years.
The impairment rating examination must be requested during a 60 day window after expiration of the employee’s receipt of 104 weeks of total disability. The employee’s receipt of 104 weeks of total disability shall be calculated on a cumulative basis. Note the failure to request the IRE within the 60 day window doesn’t preclude the insurer from compelling attendance at an IRE- but the prosecution of that (Petition to Modify) conversion will take on a different evidentiary route versus the timely request during the 60 day window which makes it easier to modify benefits. Absent agreement, a request for an IRE before the expiration of the 104 weeks is not permitted.
What doctor performs the IRE? The physician must be licensed in Pennsylvania and certfied by an American Board of Medical Specialties- approved board or its osteopathic equivalent. The physician must also be active in a clinical practice at least 20 hours per week.
How is the percentage of impairment calculated? An IRE must be established by the most recent edition of the AMA Guidelines to the Evaluation of Permanent Impairment. The physician performing the IRE shall complete Form LIBC 767- Impairment Rating Determination Face Sheet which sets forth the rating for the compensable injury.
How will I know if my rating is under 50%? If the IRE results in an impairment rating of less than 50%, the employee shall receive benefits partial in character. To adjust the benefits, the insurer shall provide notice to the employee and his counsel, if known, using Form LIBC 7640 Notice of Change in Workers’ Compensation Disability Status.
What if my rating is 50% or higher? Then you will be presumed to be totally disabled and shall continue to receive total disability compensation. Note that the prusumption of total disability may be challenged at any time by a demonstration of earning power in accord with section 306(b)(2) of the Pennsylvania Work Comp Act.
Can I challenge the IRE findings? Yes. Any at time during the receipt of 500 weeks of partial disability compensation, the employee may appeal the adjustment of benefit status to a workers’ compensation judge by filing a Petition to Review. Some of the common challenges stem from the failure of the IRE doctor to establish that the employee has reached maximum medical improvement, or a failure to account for all of the work-related diagnoses.
In my experience, the Impairment Ratings do not greatly affect most cases. Why not? Well, many cases are resolved before 104 weeks. In addition, even if an IRE comes back as under 50%, the amount of the work comp checks doesn’t get reduced based on the IRE. The vast majority of cases settle long before 500 weeks. That being said, the IRE’s can be a tool for insurers to seek leverage in the settlement process. It is highly unusual for an IRE to result in a whole body impairment of 50% or greater. To reach that threshold, the injuries must be virtually catastrophic.
If you have questions about this technical aspect of the PA Work Comp Law, call Cardamone Law at 215-206-9068 or email Michael@CardamoneLaw.com
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