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DIFFERENT BURDENS APPLY TO CLAIMANT’S CHALLENGE OF IRE DEPENDING ON WHETHER CLAIMANT FILES CHALLENGE WITHIN SIXTY DAYS OF NOTICE OF CHANGE IN DISABILITY STATUS.

See:Barrett vs. Sunoco, Inc., 987 A.2d 1280 (Pa. Cmwlth. 2/1/10).

In Barrett, Claimant sustained a work injury on June 17, 2001 to his left shoulder. His work injury was expanded to include his neck and lower back when he was involved in a motor vehicle accident in route to an IME. On July 27, 2005, IRE was conducted wherein physician determined Claimant had a seven (7%) percent impairment. As a result, on October 26, 2005, employer gave Claimant a Notice of Change of Workers’ Disability Status Form (Notice) stating that his workers’ compensation status would be changed from total disability to partial disability in accordance with Section 306(a.2)(2) of the Act.

Claimant filed Review Petitions challenging the validity of IRE and the change of his disability status within sixty days of employer’s Notice. The WCJ credited the IRE physician’s testimony and found that Claimant failed to establish that IRE was invalid.

Claimant appealed again arguing that IRE was invalid.

The court noted that an employee may appeal the change to partial disability at any time during the 500 week period of partial disability; Provided that there is a determination that the employee meets the threshold impairment rating that is equal to or greater than fifty (50%) percent impairment …. 77 P.S. §511.2(4). However, the court noted that §308(a.2)(4) does not apply to this case. The court explained that it had recently considered the process for challenging a change in disability status in Johnson vs. WCAB (Sealy Components Group), 982 A.2d 1253 (Pa. Cmwlth. 2009). In that case, the court explained that where an employer sends the Claimant a Notice that it intends to change the Claimant’s disability status as a result of an IRE, the Claimant may appeal. However, the Claimant must do so within sixty days of the Notice. If the Claimant does not challenge the Notice before the change in status becomes effective, the Claimant can no longer challenge the initial IRE determination. At that point, §306(a.2)(4) becomes applicable and the Claimant must then obtain a new impairment rating of at least fifty (50%) percent in order to file a Petition to change his disability status back to total.

In Barrett, Claimant timely filed Review Petitions challenging the change in status within sixty days of Notice, i.e. before the change in status became effective. Accordingly, the court explains as Johnson makes clear, Claimant was not required to obtain an impairment rating of at least fifty (50%) percent before appealing. Thus, the WCJ did not err in allowing Claimant to depose the IRE physician over employer’s objection. Apparently, it was Claimant’s counsel’s intention to demonstrate through the IRE physician’s testimony that IRE was not proper. This obviously failed.

Practice pointer: In Barrett, Claimant was successful with it’s IRE and therefore limited Claimant’s receipt of benefits to the 500 week partial disability period. In cases where the employer cannot establish full recovery, IRE can limit a Claimant’s benefit entitlement. IRE can be coupled with earning power assessment to reduce the benefits paid over the disability period.