Fried, Kane, Walters, Zuschlag and Grochmal 625 Stanwix Street, Suite 1404
Pittsburgh, PA 15222
Phone 412-261-4774
Fax 412-261-1225


See: Combine v. WCAB (National Fuel Gas Distribution Corporation), 954 A.2d 776 (Pa. Cmwlth. 8/14/08)

Claimant sustained a work injury to his left knee on 12/4/00. Employer obtained an IRE on 6/20/06 which revealed a 20% whole body impairment. On 7/12/06 Employer filed a Petition for Modification. In his Answer, Claimant averred that modification was not appropriate because he was not at maximum medical improvement (MMI).

The WCJ granted the Modification Petition converting Claimant from a total to partial disability status. The WCJ concluded that a finding of MMI was not part of the statutory scheme. The WCAB affirmed.

The Court determined that interpretation of the statute was required. The Court quoted Section 306(a.2) of the Act regarding IREs in pertinent part as follows:

“The degree of impairment shall be determined based upon an evaluation by a physical… pursuant to the most recent edition of the American Medical Association ‘Guides to the Evaluation of Permanent Impairment’.”

The Court next quoted the current and Sixth Edition of the American Medical Association’s ‘Guides to the Evaluation of Permanent Impairment’:

2.3C When are impairment ratings performed?
Only permanent impairment may be rated according to the Guides, and only after the status of “Maximum Medical Improvement” (MMI) is determined, as explained in Section 2.5e. Impairment should not be considered permanent until a reasonable time has passed for the healing or recovery to occur. This will depend on the nature of underlying pathology, as the optimal duration for recovery may vary considerably from days to months. The clinical findings must indicate that the medical condition is static and well stabilized for the person to have reached MMI…
2.5e Maximum Medical Improvement
Maximum Medical Improvement refers to a status where patients are as good as they are going to be from the medical and surgical treatment available to them. It can also be conceptualized as a date from which further recovery or deterioration is not anticipated, although over time (beyond 12 months) there may be some expected change…
Thus, MMI represents a point in time in the recovery process after an injury when further formal medical or surgical intervention cannot be expected to improve the underlying impairment. Therefore, MMI is not predicated on the elimination of symptoms and/or subjective complaints. Also, MMI can be determined if recovery has reached the stage where symptoms can be expected to remain stable with the passage of time, or can be managed with palliative measures that do not alter the underlying impairment substantially, within medical probability…
2.5f Permanency
Permanency is the condition whereby impairment becomes static or well stabilized with or without medical treatment and is not likely to remit the future despite medical treatment, within medical probability… This term is usually synonymous with MMI, usually occurring when all reasonable medical treatment expected to improve the condition has been offered or provided.
Impairment ratings are to be performed when an individual is at a state of permanency.

The Court then reviewed the IRE physician’s testimony. The Court highlighted the fact that Claimant had a partial knee replacement with a unispacer three years prior to his examination in March of 2003. IRE examination revealed swelling around the knee joint with medial laxity. The IRE physician conceded that Claimant was a candidate for total knee replacement but that because of his relatively young age, 46, he believed such a procedure would not be undertaken for a few years. The IRE physician agreed that a total knee replacement “could” provide complete pain relief and “could” give Claimant better motion and stability, reduce his swelling, and eliminate his limping.

The Court indicated they were troubled by the fact that when the IRE physician was specifically asked whether or not Claimant was at MMI, he explained that he did not believe a finding of MMI was required under Pennsylvania law and therefore did not address the issue. He explained “I usually don’t take that question because that requires a different kind of evaluation.”

Thus, the Court concluded that the IRE physician’s testimony failed to establish Claimant was at MMI so that his determination that Claimant had a 20% impairment was not calculated in accordance with the most recent edition of the Guides. The Court reversed the Board’s Order and Judge’s Decision granting Employer’s Modification Petition. Significantly, Claimant’s disability status was deemed to be that of total disability.

Practice Pointer: Review your cases carefully before determining whether you wish to obtain IRE. If further surgery is recommended or being considered, you will probably want to defer IRE in favor of IME and earning power assessment (EPA). Also, consider combining IRE with IME/EPA. If you are unsure as to MMI, consider obtaining an IME first to address this issue. When writing to the IRE physician, advise him that a determination as to MMI is required before calculating impairment and ask that he/she address this issue. If Claimant refuses to attend exam, a Petition to Compel IRE can be filed.