There is, perhaps, no other section of the Workers’ Compensation Act that has been under greater scrutiny by the appellate courts than Section 306(a.2), dealing with impairment rating evaluations (IREs). Of course, the IRE, which was to have much greater significance in the Pennsylvania workers’ compensation practice than it does, is used by the employer to determine the percentage of “permanent impairment” an injured worker suffers following the receipt of 104 weeks of total disability benefits. In the event an injured worker’s “whole body impairment” is determined by an IRE to be less than 50 percent according to the American Medical Association Guides to the Evaluation of Permanent Impairments, a claimant’s benefits can shift from total to partial in nature, without changing the amount of compensation paid.
Since in almost every instance an IRE of less than 50 percent places a 500-week cap on the employer’s exposure for indemnity benefits, it has been incumbent on the claimant’s practitioner to try and invalidate the offending IRE on grounds other than the percentage of whole-body impairment. Verizon Pennsylvania v. Workers’ Compensation Appeal Board (Ketterer), __ A.3d __ (Pa. Commw. 2014), sanctioned a challenge to an IRE based on the competency of the physician. Combine v. WCAB (National Fuel Gas Distribution), 954 A.2d 776 (Pa. Commw. 2008), found that since the AMA guides require an individual to reach maximum medical improvement (MMI), the employer must first demonstrate that the claimant has reached MMI before a percentage of impairment can be calculated. While there are other potential challenges, traditionally, the argument that the claimant has not reached MMI has been the most successful in helping to thwart the IRE.
