Does an impairment rating evaluation (IRE), which addresses injuries identified as compensable when the IRE was performed, become invalid if it is subsequently determined, during a claimant’s challenge to the IRE filed within the 60-day appeal period, that the claimant sustained additional work-related injuries? The answer is no, according to the Commonwealth Court in Duffey v. WCAB (Trola-Dyne, Inc.), __ A.3d __ (No. 1840 CD 2014, filed June 26, 2015).
Michael Duffey began receiving disability benefits in 2009 for work-related injuries to his hands. On March 6, 2011, he reached 104 weeks of compensation and his employer requested an IRE. The IRE report, issued June 25, 2011, indicated a six percent impairment rating; employer sought to change Duffey’s disability status from total to partial. On July 14, 2011, Duffey filed a review petition asserting the IRE was invalid and later, at a December 2011 hearing, presented testimony from his physician to support a claim that the description of his injury was incomplete. The WCJ accepted Duffey’s evidence and added adjustment disorder and PTSD as compensable injuries. The WCJ concluded the IRE was invalid because it did not address those injuries and granted Duffey’s review petition. Employer appealed and the WCAB reversed, holding that the IRE was valid because Duffey never sought to add the new injuries until long after the IRE was completed.
On review, the Commonwealth Court affirmed, holding that the IRE was not invalid. Writing for the majority, Judge Cohn Jubelirer noted that, because Duffey filed his appeal within the statutory sixty-day appeal period before the IRE became fixed, he could challenge the IRE itself. However, he could only challenge the description of the work injury as it existed at the time the IRE was performed. The Court explained that the drafters of the Workers’ Compensation Act could not have intended for claimants to be able to nullify a valid IRE with claims of additional injuries that would not have been addressed by the IRE physician. To hold otherwise would strip an employer of its only opportunity to obtain a self-executing change in disability status. The Court encouraged claimants to be proactive as the end of the 104-week period is approaching and determine whether they have new compensable injuries before an IRE is requested.
Senior Judge Colins noted his dissent.