Impairment Rating Evaluations

Pennsylvania Attorneys Dedicated to Helping Injured Workers

Since the attorneys with Brilliant & Neiman LLC are certified as specialists in the practice of PA workers’ compensation law, you can be confident that your rights under the Pennsylvania Workers’ Compensation Act are protected. Representing injured workers throughout Southeastern and Central PA, including Bensalem, Levittown, Easton, Abington and Philadelphia, we are ready to help you with your work injury.

One of the hot issues in Pennsylvania workers’ compensation over the past couple of years has been that of Impairment Rating Evaluations (IREs). The IRE was brought to PA in the 1996 amendments to the Pennsylvania Workers’ Compensation Act (Act). However, the Supreme Court of Pennsylvania declared the entire IRE section of the Act (Section 306(a.2)) unconstitutional on June 20, 2017 in the case of Protz v. WCAB (Derry Area School District). This decision effectively ended the entire IRE process in PA at the time. See our blog for more details.

However, given the power of the insurance industry, and the strength in their lobbying muscle, this was a short-lived victory for the injured worker in PA. On October 24, 2018, the PA legislature enacted Act 111, which reinstated the IRE process (now Section 306 (a.3)). The legislature attempted to cure the constitutional defect in this new law (though whether that was successful remains to be seen). For the injured worker in PA, there was one small bright spot – the ridiculously high 50% threshold for continuing on total disability has been reduced to an only slightly less ridiculous 35%. Other than that, it would appear the IRE process is back in PA. Questions do remain how this new law will impact existing cases. This will require decisions from the appellate courts.

Under the IRE concept, once an injured worker receives 104 weeks of temporary total disability benefits, and has reached “Maximum Medical Improvement” (MMI), the workers’ comp insurance company has the right to send the injured worker for an IRE. The physician to perform the IRE is either agreed upon by the parties, or selected by the Bureau of Workers’ Compensation. Like an Independent Medical Examination (IME), the doctor carrying out an IRE does so by examining the injured worker and reviewing records.

Once the doctor examines the patient, and reviews the records, he or she consults the Sixth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the old law had entailed that the “most recent edition” be used; the Protz Court found this an unconstitutional delegation of power to a non-legislative body). The doctor then comes up with a “Whole Body Impairment” (WBI) rating solely related to the work injury. An injured worker’s condition and ability to work is being determined by referencing a book, distancing any subjectivity at all.

If the IRE results in a WBI rating of less than 35% (again, this had initially been at 50%; while better, this still is a ridiculously high standard), the status of workers’ compensation benefits can be changed from “total” disability to partial. This change in the status of benefits does not affect the rate of the weekly compensation, but how long such benefits can be received by an injured worker.

In Pennsylvania, there is no limit to how long an injured worker can receive “total” disability benefits; this obviously explains how important the IRE process is to the insurance industry. An injured worker can only receive a maximum of 500 weeks of partial disability benefits. Therefore, once the status of benefits is changed from total to partial, the receipt of benefits may be capped at 500 weeks. This only addresses wage loss (or “indemnity”) benefits; there is no limit to the length of time an injured worker can receive medical benefits for the work injury.

If the IRE is requested within 60 days of the expiration of 104 weeks of total disability benefits, the change in status is automatic (the PA workers’ comp insurance carrier only has to file a form called “Notice of Change of Status”). On the other hand, if the request is not made within this 60-day window, the PA workers’ comp insurance company must file, and litigate, a Petition for Modification to have the status changed.

Whether your situation involves an IRE or not, you deserve the best legal representation possible. With offices in Warminster, Trevose and Allentown, and meeting facilities available throughout Central and Southeastern Pennsylvania, we are convenient for all. Give us a call today at (215) 638-7500 for your free consultation!