Saturday, October 24, 2009

Supreme Court Grant of Appeal in Diehl v. WCAB (IA Construction & Liberty Mutual)

The Supreme Court's grant of appeal in Diehl v. WCAB (IA Construction & Liberty Mutual) frames the issue as:

Whether the Commonwealth Court erred in its interpretation of 77 P.S. §551.2 by holding that respondents did not need to present evidence of job availability or earning power in order to change petitioner’s disability status from total to partial, and whether the court’s holding conflicts with Gardner v. WCAB (Genesis Health Ventures), 888 A.2d 758 (Pa. 2005).

The Supreme Court said in Gardner the employer must follow the "traditional administrative process" when it misses the window to request an IRE of sixty (60) days following the expiration of 104 weeks of total disability paid. The Supreme Court directed that the Employer could not take unilateral relief, but had to give the Claimant notice and the opportunity to be heard. The Employer's burden is to present competent and credible evidence the Claimant received an IRE in accordance with the Guides. Employers have failed to prove the Claimant was at maximum medical improvement, a requirement of the Guides.

The Commonwealth Court first concluded the traditional administrative process could not simply be notice and the opportunity to be heard on the propriety of the IRE, but must also include the burden to show earning power. The Court then concluded the IRE provisions would be meaningless if an employer had to also show earning power to modify a Claimant's benefits to partial disability status.

The authority to conclude the employer must show earning power comes from the Guides. The Guides make it clear in their introduction that the whole person impairment is based on activities of daily living excluding work (emphasis in original). The Guides go on to give an example of an individual who has a 20% total body impairment and a 100% work disability.

It is clear the employer gets modification from total to partial based solely on the IRE when it is requested in the sixty (60) day window. The Supreme Court will tell us what the employer needs to do when it lets the window pass without requesting an IRE exam.

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