Pa. High Court: Missed Deadline No Bar to Impairment Rating

The 60-day deadline for requesting an impairment rating evaluation from injured workers is mandatory for insurers seeking to automatically reduce workers' compensation benefits from total to partial benefits under state law, the Pennsylvania Supreme Court has ruled. The court interpreted two subsections of the state Workers' Compensation Act together and described the two ways insurers may go about seeking the medical examinations -- one within the 60-day deadline and the other outside it.

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The 60-day deadline for requesting an impairment rating evaluation from injured workers is mandatory for insurers seeking to automatically reduce workers’ compensation benefits from total to partial benefits under state law, the Pennsylvania Supreme Court has ruled. However, “an insurer’s failure to request an employee submit to an IRE within the proscribed time frames … does not preclude an insurer from requesting that an employee submit to an IRE at a later time,” the 6-1 majority concluded. The court interpreted two subsections of the state Workers’ Compensation Act together and described the two ways insurers may go about seeking the medical examinations — one within the 60-day deadline and the other outside it. Therefore, each of the two claimants in the pair of consolidated cases before the court — Gardner v. Workers’ Compensation Appeal Board and Wal-Mart Stores Inc. v. Workers’ Compensation Appeal Board — could be required to submit to an IRE, the court determined. Justice Russell M. Nigro concurred, and Justice Sandra Schultz Newman dissented. Under the 1996 amendments to the Workers’ Compensation Act, an injured worker may receive no more than 104 weeks (roughly two years) of total disability payments — unless the workers’ IRE rating exceeds 50 percent. If the worker rates below 50 percent on the medical exam, he or she is deemed partially disabled and limited to 500 weeks of benefits, explained lawyer George Martin. Martin represented claimant Barbara Gardner in the appeal and argued that injured workers can’t be subjected to the exam once the 60-day deadline passes. “Once the window’s closed, it’s forever closed,” said Martin, who practices at Martin Banks Pond Lehocky & Wilson in Philadelphia. The 50 percent rating is a very high burden to meet, he explained. The issue in Gardner arises out of a conflict between the two sections of the statute. Subsection 1 of �306(a.2) states that an employer “shall” request a medical exam within 60 days of the expiration of the standard 104 weeks of benefits in order to obtain the automatic relief described in �511.2(2). The majority concluded that “shall” in this instance means “must,” rejecting Gardner’s employer’s argument to the contrary that “shall” in this sense meant “may.” Under Subsection 1, a rating of less than 50 percent means the claimant’s total disability benefits are reduced automatically to partial disability benefits. But another provision — Subsection 6 of the same �306(a.2) — says that, “upon request of the insurer,” the employee shall submit to an independent medical examination in accordance with �314 of the statute — that is, “any time” after the injury. As Chief Justice Ralph J. Cappy observed, Subsection 6 neither imposes a time restriction on an insurer’s ability to request a medical exam nor does it set forth a procedure for the automatic reduction of benefits based on the exam rating. Subsection 6 provides insurers with a way to establish an impairment rating outside the 60-day window via the “traditional administrative process,” Cappy reasoned. Thus, Cappy said, an insurance carrier may request the independent medical exam beyond the 60 days, but any change in benefits based on the exam rating would not be automatic at that point. Instead, Subsection 6 requires insurers to seek the change via the traditional administrative process: an insurer would need to petition a judge or reach an agreement with the employee to reduce the worker’s benefits designation to partial. Gardner had suffered a work-related injury in October 1996. She received the standard 104 weeks of temporary total disability benefits. In June 2001, her employer, Genesis Health Ventures, requested an independent impairment rating evaluation, but Gardner objected because the request was not made within 60 days from the date on which she received her benefits. In a related issue, the majority concluded in the Wal-Mart case that the 60-day window for an insurer to request an IRE under the �511.2, Subsection 1, begins once the employee receives, “that is, acquired or comes into possession of,” 104 weeks of total disability benefits. In her dissenting opinion, Newman said she also believed both Gardner and Leroy Rider — the claimant in Wal-Mart — must submit to an IRE based on her reading of the statute. Newman contended that a worker may voluntarily submit to an IRE before the 104 weeks of total benefits expires. And the worker must submit to the test, if asked, within 60 days of the 104-week expiration. But when an employer fails to request the medical exam within the 60-day window, “the employer has implicitly agreed that claimant’s degree of impairment exceeds 50 percent and the claimant can continue to receive total disability benefits,” Newman wrote. Counsel of record for Genesis was Timothy Bulman of Del Collo & Mazzanti in Paoli, Pa.

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