The Burden of Proof in an IRE Petition
One of the changes in the workers’ compensation act, which the insurance carriers initiated in 1997, was the Independent Rating Evaluation or IRE. This change provides that if an insurance carrier requests an IRE with a Bureau appointed physician within 60 days after 104 weeks of the date that the injured worker begins receiving total disability payments and if the impartial physician rates the workers’ disability at less than a 50% impairment of the whole person using the AMA Guidelines, then that injured workers’ claim for benefits will be capped at 500 weeks. This change is quite useful for the insurance carrier because a claim whose exposure is capped at 500 weeks is cheaper to settle than a potential lifetime claim. It is also very difficult to under the AMA Guidelines obtain an impairment rating which is greater than a 50% impairment of the whole person.
But what happens if the insurance carrier fails to file for its IRE within 60 days of the 104 week date that the injured worker begins receiving total disability benefits? In Gardner v. W.C.A.B. (Genesis Health Ventures), 585 Pa. 366, 888 A.2d 757 (2005) the State Supreme Court held that where the insurance carrier misses its filing deadline, there would be no automatic conversion of the injured workers’ potential lifetime claim to a claim for 500 weeks. The Supreme Court held that the insurance carrier must instead file a Petition and litigate its case before the Workers’ Compensation Judge.
The Commonwealth Court followed up the Gardner opinion with its decision in Diehl v. W.C.A.B. (IA Construction), 1507 C.D. 2007 (filed 4/28/08). The Court in Diehl held that if the IRE filing was “late,” then the injured workers’ benefits would not be changed even if the insurance carrier had a favorable IRE. The insurance carrier in order to obtain a change in the injured workers’ disability status would have to present evidence of job availability.
Now the Commonwealth Court has just reversed its own Diehl decision in an opinion circulated on April 22, 2009. The Court held after re-argument that a “late” IRE showing that the injured workers’ impairment was less than 50% was sufficient standing alone to change the workers’ disability status. No further evidence of job availability is needed. In short, the Commonwealth Court has allowed the insurance carrier which misses its statutory filing guideline to obtain the same relief as an insurance carrier which complies with the statute. The only additional step that the “late” insurance carrier has to do is to file a Petition and present the Workers’ Compensation Judge with its favorable IRE.
If you have any questions regarding the above information or regarding a work injury, please contact the skilled Philadelphia workers' compensation attorneys at Cherry, Fieger Marciano, LLP., today at 1-888-845-2706
