An IRE in Workers’ Compensation

An IRE in Workers’ Compensation

A hot issue for injured workers in Pennsylvania and under the Workers’ Compensation Act has been the “IRE.” The IRE has been in place in PA since 1996.  But the Supreme Court of Pennsylvania declared the entire IRE section of the Act (Section 306(a.2)) unconstitutional on June 20, 2017* and THEN… on October 24, 2018… WAIT. WAIT.

Before we talk about that, let’s talk about what is an IRE anyway? 

IRE stands for Impairment Rating Evaluation.

Under the IRE concept, once an injured worker receives 104 weeks of temporary total disability benefits, and has reached MMI (Maximum Medical Improvement), the workers’ comp insurance company has the right to send the injured worker for an IRE by a doctor. The IRE doctor is selected either by agreement between the parties or by the Bureau of Workers’ Compensation. The doctor examines the injured worker and reviews medical records. Once the doctor does both, he or she then refers to the 6th Edition of the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment. The doctor then comes up with a “Whole Body Impairment” (WBI) rating related to the work injury only. If the IRE results in a WBI rating is less than 35% (this had previously been at 50%), the status of workers’ compensation benefits can be changed from “total” disability to “partial” disability. This change does not affect the weekly compensation rate, but it does affect how long the injured worker can receive the benefits.

In Pennsylvania:

1) There is no limit to how long an injured worker can receive “total” disability benefits; and obviously, this explains why an IRE process and the results are important.

2) But 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” wage loss (aka indemnity) benefits may be capped at 500 weeks. There is no limit to the length of time an injured worker can receive medical benefits.

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”). 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.

Current Law:

But, as I mentioned earlier, what was ruled unconstitutional on June 20, 2017 became a short-lived victory as of October 24, 2018.  On October 24, 2018, the PA legislature enacted into law Act 111 of 2018, which reestablished the IRE process, now Section 306 (a.3). But, at least for the injured worker in PA, the previous 50% threshold for continuing on total disability was reduced to 35%. Other than that, it would appear the IRE process is back in PA. There is an established presumption of total disability at 35% whole body impairment.

Questions do remain how this new law will impact existing cases. This will require decisions from the appellate courts. If you have IRE situation, or a Petition for Modification has been filed in your case, come see us as soon as possible to discuss your situation. See Gabriella Hashem Farhat, Esquire, or Linda F. Gerencser, Esquire, for legal questions or representation.  Attorney Farhat has been handling and litigating workers’ compensation cases, on behalf of the injured worker/employee for over 30 years, call us at 717.299.7342. And, stay tune for our part 2 blog about this hot topic.

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*The case of Protz v. WCAB (Derry Area School District) effectively ended the entire IRE process in PA at the time.  The Court found that the IRE provision within the Act was unconstitutional because the impairment rating was to be determined by the latest version of the AMA Guide to Disability.  The Court believed this was an impermissible delegation of power. The case was sent back (remanded) to the Workers’ Compensation Judge (WCJ), to perform the IRE using the 4th edition (the edition which existed when the IRE provision was added to the Act).
The Pa. Supreme Court then decided the Commonwealth Court was correct only “in part.” Although the delegation power was unconstitutional, the Act does not mention use of the 4th Edition of the AMA Guides and so, a Court cannot rewrite a law; and without the use of the AMA Guides, the entire IRE provision must be struck. [But see “Current Law,” as of October 24, 2018].
~Gabriella Hashem Farhat, Esquire
Posted in News on by Pyfer Reese.