Friday, October 16, 2009

Commonwealth Court Limits Time for IRE Appeal Based on Competency of the IRE Report

In D. Johnson v. WCAB (Sealy Components Group) the Employer issued a Notice of Change of Workers’ Compensation Disability Status based on an IRE finding of a 15% total body impairment. A year later the Claimant filed a petition to review alleging her pulmonary condition should not have been evaluated by the IRE physician who is a board certified physiatrist. The Employer asserted the Claimant’s petition to review was prohibited under Section 306(a.2)(4) of the Act because the Claimant failed to first show a determination she had a 50% impairment rating from her physician.

The WCJ and the Board held the Claimant could file for review under 34 Pa. Code Section 123.105(f). This regulation provides a Claimant can file at any time within the 500 week period of partial disability that is commenced by the filing of the Notice of Change of Workers’ Compensation Disability Status. The WCJ and the Board held, however, that Section 306(a.2)(1) only requires that an IRE physician be board certified. It does not require the physician to be board certified in the specialty that might be indicated for the nature of the injury. The WCJ and Board denied the Claimant’s petition on this basis.

The Claimant’s case might have been argued differently. The Act provides an impairment rating is established pursuant to the AMA Guides to the Evaluation of Permanent Impairment. The Guides provide that when a condition is outside the IRE physician’s specialty, the IRE physician should seek a consultation from a physician of the appropriate specialty to complete the impairment rating. The Claimant should argue a physiatrist was able to perform the IRE, but the IRE was not performed pursuant to the Guides because the physiatrist did not seek a consultation from a pulmonologist.

The Claimant will not have the opportunity to clarify her argument. The Commonwealth Court accepted the Employer’s initial argument that the Claimant must first show a determination she has a 50% impairment rating from a physician when she files for review under 306(a.2)(4) of the Act. The Court said the regulation at 34 Pa. Code Section 123.105(f) is inconsistent with the statute and is invalid.

The Court did recognize the Claimant has a due process right to review the Employer’s unilateral action without the burden of producing her own medical evidence. For this, the Court looked to Section 306(a.2)(2)(b) of the Act and 34 Pa. Code Section 123.105(d) which provide the Claimant with sixty (60) days notice of the change of workers’ compensation disability status. The Court suggested the Claimant has a right to file a review petition in this sixty (60) day window, presumably without first showing a 50% impairment finding.

Accordingly, any review of the competency of the IRE determination including the doctor’s credentials or specialty or the finding of maximum medical improvement must be filed within sixty (60) days. Any challenge to the IRE after that requires a showing the 50% total body impairment threshold has been reached.

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