Caselaw Updates

IRE Does Not Prevent Subsequent Termination Petition

The performance of an Impairment Rating Evaluation (IRE) is not an admission of permanency of claimant’s disability and does not preclude subsequent litigation of any change in employee’s disability, where the employee’s condition is not irreversible. Although the defendant did not prevail in the underlying termination petition litigation, the Court concluded that a termination petition was not prohibited where a defendant filed a termination petition based upon a change in the employee’s disability. A finding of "permanent disability" is not the equivalent of a finding that the injury is irreversible. A petition would be precluded where the claimant’s condition is clearly irreversible, such as in the case of a progressive occupational disease.

See: Schachter v. WCAB (SPS Technologies), No. 320 C.D. 2006 (Pa. Cmwlth. 10-12-06).

Practice Pointer: As a termination/modification/suspension petition is not precluded by an impairment rating evaluation, we recommend utilization of the IRE procedure to commence the 500 week period of partial disability benefit status.

Worker compensation practitioners have recommended limited use of the §306(a.2) impairment rating provisions, based upon the concern that a finding of "permanency" would prohibit any future worker compensation remedy for termination, suspension or modification of the employee’s disability. This Commonwealth Court decision addresses that concern and preserves all appropriate post-IRE remedies. (We anticipate the Pennsylvania Supreme Court will review this issue.)

Although this decision arose from the employer’s unsuccessful termination petition litigation and the employee’s award of attorneys’ fees for reasonable contest, the Commonwealth Court directly addressed the issue of whether an impairment rating is "res judicata" as to the permanency of a Claimant’s disability, for purposes of a subsequently filed termination petition. The Commonwealth Court concluded that the IRE evaluation of 6% of the total person, did not preclude the subsequent termination petition by defendant/employer. The claimant’s right knee injury was not the type of condition which would be "irreversible" in terms of the extent of disability. A distinction was drawn from the Supreme Court decision in Hebden where the Court concluded an employer may not re-litigate, by way of a termination or modification petition, the medical basis that formed the basis of claimant’s original compensation award, as the pneumoconiosis condition is irreversible and progressive. 632 A.2d at 1304. The Commonwealth Court distinguished an irreversible medical condition from the claimant’s knee condition. In Wieczorkowski, the claimant’s right knee was said to have resolved into a permanent partial disability in a Supplemental Agreement. The subsequent employer termination petition was not precluded as the employer could challenge the Claimant’s current disability status where the condition is reversible. A finding of fact by a workers’ compensation judge of "permanent disability" is not the equivalent of a finding that the injury is irreversible. See: City of Pittsburgh v. WCAB (Wiefling), (a FKWZ&G case).

The Court also rejected the claimant’s argument that defendant’s preparation of an LIBC-764, Notice of Change of Workers’ Compensation Disability Status Form, was an admission of the "permanency" of claimant’s disability.