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IRE Valid Based on Injuries from NCP even when WCJ Decision Subsequently Amends Injury Description

Duffey v. WCAB (Trola-Dyne, Inc.), No. 1840 C.D. 2014, filed June 26, 2015

Factual and Procedural History
Claimant sustained electrical burn injuries to both hands while working for employer in March 2009. The injury was accepted via NCP, and claimant reached 104 weeks of receiving total disability in March 2011. Employer requested an IRE assignment from the Bureau. After assignment, the physician issued an impairment rating determination of 6% whole person impairment in his report of June 2011. Employer issued the Notice of Change of Workers’ Compensation Disability Form modifying benefits to partial disability.

Claimant filed a Petition to Review Compensation Benefit Offset asserting that the IRE was invalid, without specifying how it was invalid. Later, claimant clarified that it was invalid because the description of injury was incomplete. Claimant’s physician testified that he suffered from adjustment disorder with depressed mood, diagnosed in August 2010. The IRE physician testified that his impairment rating addressed only those injuries described as work-related on the designation sheet and had not reviewed his mental conditions.

The WCJ, upon review of the evidence, amended claimant’s description of injury to include adjustment disorder with depressed mood and PTSD. The WCJ then concluded since claimant had established he suffered from additional work injuries, the IRE was invalid as it did not address those additional injuries. The Board agreed with employer that the IRE was valid, as claimant had never sought to amend the description of injury until well after the IRE had taken place (approximately 5 months later). Furthermore, claimant had not challenged the IRE physician’s findings that claimant was at MMI and had a whole person impairment of 6%.

Commonwealth Court Decision
On appeal, employer asserted that an IRE would be precluded from validity because a claimant could challenge an already performed IRE based on injuries that were not yet determined to be work related. Practically, the physician can only assess a claimant for injuries that have been accepted as work related in an NCP, otherwise the physician would have to imagine what other work-related injuries each claimant may have. Furthermore, in this case the claimant did not seek to take action to amend his injury description until after the IRE was performed.

The Court held that the IRE here was not invalid, as it had been based on the injury as legally described at the time of the evaluation. The fact that the WCJ had amended the description of injury during litigation over the modification of claimant’s benefits did not invalidate the examination. The Court did not believe it plausible that the General Assembly intended to permit an already performed and otherwise valid IRE to be invalidated based on claims of new or additional injuries that were not yet determined to be work related and would therefore not have been addressed by the IRE physician. It was noted that this was true even if the petition to review the IRE modification was filed within the 60-day time frame during which a claimant only had to prove validity rather than that his impairment was over 50% (as required after the expiration of those 60 days). However, the Court noted that this did not preclude claimants from challenging the change if additional injuries are recognized or adjudicated as work-related after the evaluation.

In so holding, the Court noted that the Act specifically states the purpose of the IRE is “to determine the degree of impairment due to the compensable injury.” Several times when discussing the IRE process, the Act specifies that it is as related to the compensable injury, and the Court noted that it is well settled that the NCP establishes the description of injury. The Court also cited that it is the claimant’s physical condition at the time of the IRE that controls the validity of the evaluation. As such, when determining validity of an IRE, the focus must be on the state of the claimant and the compensable injury at the time the evaluation is performed.

The Court also noted that claimant had been diagnosed with his mental disorder nearly a full year prior to the IRE, but took no steps to try and amend his injury description until after he received the results of the IRE. If the Court were to accept claimant’s position in the matter, it would encourage other claimants to also wait until after the 60-day period following an IRE had expired to seek an amendment in order to automatically invalidate an IRE.