No Diehl: Court Corrects Itself on IRE Process that Caps Workers' Compensation Benefits
On April 1, 2009, a three-member panel of the Commonwealth Court issued a decision in Ford Motor/Visteon Systems v. WCAB (Gerlach), No. 1944 C.D. 2008, 2009 Pa. Commw. LEXIS 123 (Pa. Commw. 2009), which clarifies the procedure for obtaining a modification of Pennsylvania workers’ compensation benefits arising from a disputed impairment rating evaluation. The Commonwealth Court’s decision in Gerlach, follows the Pennsylvania Supreme Court’s landmark decision in Gardner v. WCAB (Genesis Health Ventures), 585 Pa. 366, 888 A.2d 758 (2005).
The determination of whether an employer is entitled to a modification of a claimant’s benefits based on an impairment rating determination is governed by Section 306(a.2) of the Pennsylvania Workers’ Compensation Act. In general, Section 306(a.2) provides that a modification of a claimant’s benefits from total to a statutory partial disability limit of 500 weeks may be obtained through an impairment rating evaluation (IRE). The IRE is to take place after the expiration of 104 weeks of a claimant’s total disability.
In Gardner v. WCAB (Genesis Health Ventures), the Pennsylvania Supreme Court was confronted with conflicting interpretations as to the effect of timing requirements for obtaining an impairment rating evaluation. Id. In interpreting the relevant provisions of Section 306(a.2) of the Act, the Court held that there were two separate procedures for modification based on impairment ratings depending upon whether the request for the IRE was made within 60 days of the expiration of 104 weeks or thereafter. Id.
In applying Section 306(a.2)(1), the Court in Gardner held that an employer may obtain an “automatic modification” of a claimant’s benefit to the statutory partial disability limit when the request for the impairment rating is made within 60 days after the 104 week total disability period. In the event that an employer/insurer requested an impairment rating evaluation beyond the 60-day deadline set forth in Section 306(a.2)(1), the employer/insurer was precluded from such automatic relief even after a successful impairment rating evaluation. Instead, the Court held that under these circumstances, the employer/insurer must seek modification under “the traditional administrative process.” Id.
The Court in Gardner did not specifically define “the traditional administrative process” with respect to impairment rating proceedings. Considerable confusion was created thereafter by a three-member panel Commonwealth Court decision in the matter of Diehl v. WCAB (IA Construction), 1507 C.D. 2007, 2008 Pa. Commw. LEXIS 182 (Pa. Commw. 2008). The Commonwealth
Court in Diehl, interpreted “traditional administrative process” as requiring the employer/insurer to prove job availability to obtain modification where the IRE was not obtained within the 60-day deadline set forth in Section 306(a.2)(1). Within a few months of this puzzling decision, the Commonwealth Court vacated its decision in Diehl and reargument was granted. See, Diehl v. WCAB ( IA Construction), 1507 C.D. 2007, 2008 Pa. Commw. LEXIS 312 (Pa. Commw. 2008). While interested parties in the Pennsylvania workers’ compensation arena have been awaiting a corrective final ruling in Diehl, a three-member panel of the Commonwealth Court issued its decision in Ford Motor v. WCAB (Gerlach), No. 1944 C.D. 2008, 2009 Pa. Commw. LEXIS 123 (Pa. Commw. 2009).
In Ford Motor v. WCAB (Gerlach), a three-member panel of the Commonwealth Court specifically held that in cases where an impairment rating is scheduled after the expiration of the 104 weeks plus 60-day limit of Section 306(a.2), and results in an adjudicated impairment of less than 50 percent, “the effective date of the modification should be the date of the IRE physician’s examination, not the date of the WCJ’s decision or sixty days thereafter”. Id. In doing so, the Commonwealth Court further defined the “traditional administrative process” under Gardner as follows: “…the employer follows the traditional administrative process to obtain a modification of benefits. It files a modification petition and litigates that petition to a conclusion.” Id.
The Gerlach decision, for now, adds clarity to the impairment rating procedure. Under Gerlach, employers seeking modification based on an impairment rating are not required to meet the “additional” burden of proving job availability.
