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In Schachter v. WCAB (SPS Technologies), decided Oct. 12, the Commonwealth Court held that impairment rating evaluations (IREs) requested by employers prior to the filing of a termination petition did not influence the outcome of the proceeding because an injured worker’s condition could change at any time following the evaluation. The court held further that evidence of whole body impairment was not an admission by the employer that the claimant’s injury was “irreversible,” or that the employer was precluded from requesting and proving full recovery of an injured worker following an impairment rating evaluation. Hence, I reported that IREs did not preclude employers from filing termination petitions at any time after receiving an evaluation of a claimant and whole-body impairment. It now appears that IREs have no affect upon an employer’s ability to terminate an injured worker’s benefits even where the IRE was requested following a medical evaluation supporting full recovery and during the litigation of its petition. In Weismantle v. WCAB (Lucent Technologies), decided June 18, the claimant sustained a low-back strain in 1999 while in the employ of Lucent Technologies, and began receiving benefits in November 2001. In January 2003, the employer filed a termination petition based upon an examination and opinion from its medical expert of full recovery. While litigating the termination petition, the claimant received 104 weeks of temporary total disability benefits. Consequently, the employer requested an IRE within the mandatory 60-day period, which determined that the claimant had a 10 percent impairment rating. As a result of the evaluation, the employer placed the claimant on partial disability. The WCJ denied the employer’s termination petition because of the employer’s acknowledgement of the claimant’s impairment and placement on partial disability. The appeal board vacated and remanded the WCJ’s decision for a determination on the merits of the termination petition. The appeal board opined that there were no restrictions within the PAWCA that prevented the employer from pursuing an IRE and a termination of benefits simultaneously. On remand, the WCJ terminated the claimant’s benefits, finding that he fully recovered from his work injury as of August 2002, even though the IRE was performed on Nov. 11, 2003. The appeal board affirmed, as did Commonwealth Court. The Commonwealth Court held that the employer was not foreclosed from seeking a termination of benefits even in situations where an impairment rating was requested and received following the filing of a petition asserting full recovery. The court reasoned that IREs are governed by the AMA’s guidelines, which while designed to determine impairment, does not determine “whether an individual can perform his pre-injury job, i.e. his degree of disability.” Additionally, the court noted that independent medical evaluations are quite different in scope from IREs because independent medical evaluations focus on whether a claimant is capable of performing his pre-injury job. Finally, the Commonwealth Court held that because of the strict filing periods for requesting IREs, employers are obligated to request evaluations within the deadlines or forever lose the opportunity to change an injured worker’s “disability status.” Consequently, relying on their earlier decision in Schachter, the court held that IRE remedies “are in addition to, not a replacement of” the remedies available to an employer who believes a claimant’s loss of earnings is due to reasons other than a work injury. In a dissenting opinion, President Judge James Gardner Colins did not dispute that the effect of IRE remedies are supplemental to those of other remedies, such as termination petitions. Colins also agreed that IREs could provide employers an alternative means of mitigating liability until a WCJ renders a decision on a termination request. However, because the WCJ in Weismantle determined that the claimant had fully recovered before the date in which the IRE was conducted, Colins opined that the decision should have been vacated and remanded to designate the date of the claimant’s recovery and the corresponding date of termination as the date of the IRE, which in this case was Nov. 11, 2003. In my article of July 27, 2006, to The Legal Intelligencer, I reported that the AMA guidelines for impairment ratings placed disclaimers on the permanency of medical conditions, as well as work-related disabilities. In fact, the AMA guidelines specifically provide that their impairment ratings are not intended for use as direct determinates of work disabilities because work can involve simple or complex activities; is highly individualized making generalization inaccurate; are static in nature while work is a fluid activity; and interact with age, education, and prior work experience. Accordingly, I believe that IREs were intended by the legislature solely to provide an objective standard for bringing finality to worker’s compensation claims, not as a barrier to finality. As such, quality, well reasoned and comprehensive medical evaluations focusing on the status of a claimant’s work-related injury should have greater weigh and emphasis than impairment rating evaluations; particularly in situations involving a cessation of benefits. Judging from the latest decision in Weismantle, this assessment has become a reality. DANIEL V. DILORETTO practices in the workers’ compensation law practice area with Harvey Pennington in Philadelphia. He has developed extensive experience in the defense of workers’ compensation litigation, as well as related employment issues such as the Americans with Disabilities Act, and the Family and Medical Leave Act. He can be contacted at [email protected].

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