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On June 18, the Commonwealth Court, in case of the Weismantle v. W.C.A.B. (Lucent Technologies), decided an issue that has been a pressing one since Act 57 was passed in 1996. Does an employer’s request for an Impairment Rating Evaluation (IRE) render a pending termination petition moot? While the answer would seem to be an obvious “yes,” given that an IRE establishes a permanent impairment, the Commonwealth Court has decided that an injured worker with a such an impairment can somehow still be fully recovered. The court essentially found that the IRE process is offered to an employer in addition to, and not as a replacement of, the remedies available when it believes that an employee’s loss of wages is not the result of a work-related injury. While that may have been the General Assembly’s intent, the result of the Weismantle case would seem to have trumped the letter of the law. The facts of the case are fairly simple and rather common. In November 2001, Wayne Weismantle began to collect temporary total disability benefits for a 1999 back injury suffered while working for Lucent Technologies. On Jan. 8, 2003, Lucent filed a termination petition, seeking a cessation of Weismantle’s benefits based upon the notion that he was fully recovered from his work injury as of an Aug. 26, 2002, independent medical evaluation. While the termination petition was still pending, 104 weeks from the date of Weismantle’s first disability had elapsed. As a consequence, the employer filed a request for an IRE, which was conducted by Ronald Glick, M.D., on Nov. 11, 2003. The result of the IRE was that Weismantle suffered from a 10 percent “whole-body impairment rating.” Since the IRE was requested timely and the impairment was less than 50 percent, the employer notified Weismantle that he was being placed on partial disability as of Nov. 11, 2003, via notice dated Dec. 12, 2003. On April 9, 2004, the WCJ issued a decision, denying the employer’s termination petition for the seemingly obvious reason that the employer was acknowledging that Weismantle was, in fact, impaired as of Nov. 11, 2003, consistent with the results of the IRE it had requested. The IRE established with legal certainty that Weismantle was disabled, especially given Lucent’s own conduct in placing him on partial-disability benefits. The WCJ did not make any findings based on the evidence of record as the issue was merely a legal one. On appeal, the Workers’ Compensation Appeal Board held that the WCJ erroneously assumed that an impairment rating of 10 percent barred an employer from seeking a termination of disability benefits. The board reasoned that nothing in the Workers’ Compensation Act or the case law prohibits an employer from pursuing an IRE and a termination petition simultaneously. Consequently, the board vacated the WCJ’s decision and remanded the case back for her to consider the merits of the termination petition. On remand, the WCJ granted the employer’s termination petition benefits on the merits, finding that he had fully recovered from his injury as of Aug. 26, 2002. The decision was largely based on credibility determinations of the doctors and of Weismantle himself. Weismantle appealed, and the Board affirmed. Weismantle then petitioned the Commonwealth Court for review of the board’s order terminating his benefits. The issue on appeal was defined by the court as “whether an employer’s placement of a claimant on partial disability during the pendency of that employer’s termination proceeding bars any further action by the WCJ on the termination petition.” On appeal, Weismantle argued exclusively that once the employer obtained an IRE indicating 10 percent permanent impairment and filed a notice of change of status with the Bureau of Workers’ Compensation, it was estopped from seeking a termination of his benefits as of any date prior to the effective date of the IRE. The employer responded by relying on Schachter v. W.C.A.B. (SPS Technologies) in its assertion that the act does not correlate the timing of the IRE with the timing of a termination of benefits. In Schachter, the Commonwealth Court also considered in part how an IRE should affect a termination petition. Unlike the Weismantle case, Schachter only dealt with an attempt to impose unreasonable contest counsel fees on an employer who choose to proceed with a termination petition in light of an existing IRE permanency finding. Following a 6 percent IRE finding, the employer filed a termination petition, asserting that the claimant had fully recovered. While the claimant won on the merits of the termination petition, he appealed, making the same argument as Weismantle, namely that an IRE finding of permanent impairment should have been res judicata foreclosing a future finding of full recovery and creating a clearly unreasonable contest. The claimant sought an imposition of counsel fees against the employer on that basis. The court ultimately held that a finding of a 6 percent impairment was neither a judicial admission nor res judicata for purposes of filing a subsequent termination petition. The court further coined the phrase that “the IRE remedies . . . are in addition to, not a replacement of, the remedies available to an employer who believes that an employee’s loss of wages is not the result of a work-related injury.” While Schachter’s holding sought to address an IRE request followed by a termination petition, the Weismantle court expanded the conclusion to situations where the termination petition was filed prior to the employer’s IRE request. The troubling thing about the two cases is that the court seems to go out of it’s way to further the result of allowing employers to keep various remedies it believes were granted by the Legislature. The court discussed at length the fact that an employer seeking a change from total disability to partial disability based on an IRE must do so within the strict time requirements of Section 306(a.2)(1) of the Act. The court pointed out that to obtain a unilateral change from total disability to partial disability, an employer must request an IRE no earlier than the date on which claimant has received TTD benefits for 104 weeks and no later than 60 days thereafter and that if the deadline is not met, the employer forever loses the opportunity to change the claimant’s disability status to partial disability if the IRE shows an impairment of less than 50 percent. The court inexplicably agreed that the claimant’s position “might be desirable in the abstract,” but that “given the strict statutory deadlines that govern an IRE,” the result of claimant’s stance would allow any IRE finding of greater than 0 percent to foreclose an employer from modifying or terminating benefits, which would discourage an employer from availing itself of the IRE procedure altogether. While employers throughout the commonwealth rejoice, the claimant’s bar finds it difficult to understand why that should matter, insisting that the letter of the law should govern. In defending the result, the court stated plainly that as in Schachter, the act gives an employer the right to pursue an IRE and a termination without regard for the other. The court elaborates that if an employer did not do so, the opportunity would been lost. While this statement is not entirely accurate, it still begs the question of relevance if the result is inconsistent with the law. While the Weismantle decision seems harsh and inconsistent with the plain language of the statue, all is not lost for claimants. The Schachter court stated plainly that perhaps claimant’s could assert claim preclusion for post-IRE termination proceedings if the claimant’s “permanent” disability is “clearly irreversible.” While it may be a challenge to understand how permanent could not mean “clearly irreversible,” the court left open the possibility that the “clear irreversibility” of a claimant’s injury can be litigated. It is strongly recommended that the claimant’s bar routinely request that this issue be bifurcated in an effort to preclude an employer from proceeding with a post-IRE termination petition on the merits. The other ray of light in the Weismantle decision is the fact that the court seemed to base much of its opinion on the notion that an employer would be “forever precluded” from availing itself on an IRE if it were not to comply with the strict 60-day window. While this may have been true at the time Schachter was decided, the law now provides an opportunity for an untimely IRE request to be litigated on the merits. Therefore, the court may be able to be convinced that its basis for the decisions no longer applies. Finally, the court also allows future litigation on the matter in its statement of the issue as “whether an employer’s placement of a claimant on partial disability during the pendency of that employer’s termination proceeding bars any further action by the WCJ on the termination petition.” Given that Schachter was really a counsel-fee issue, and did actually address the matter litigated in Weismantle, the timing of the IRE with the termination petition is still open for question. Either way, the issue is far from decided. CHRISTIAN PETRUCCI is a solo practitioner and past co-chairman of the Philadelphia Bar Association’s Workers’Compensation Section. He concentrates his practice in workers’ compensation litigationand Social Security disability. He can be reached at 215-545-0330 or via e-mail at[email protected].

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