Opinion

Weismantle v. Workers' Compensation Appeal Board

  • 926 A.2d 1236
  • 2007 Pa. Commw. LEXIS 319
Court
Commonwealth Court of Pennsylvania
Filed
Jun 18, 2007
Status
Published
Author
Colins
On the bench
Colins, President Judge, and Simpson, Judge, and Leavitt, Judge
Cited by
14 cases
Authority
More cited than 8.6%

explaining that the IRE "guidelines are designed to determine impairment, not to determine whether an individual can perform his pre-injury job, *108 i.e., his degree of disability” and that "an IRE is quite different in scope from an independent medical examination undertaken to determine whether a claimant can perform the pre-injury job.”

How later courts described this case

  • explaining that the IRE "guidelines are designed to determine impairment, not to determine whether an individual can perform his pre-injury job, *108 i.e., his degree of disability” and that "an IRE is quite different in scope from an independent medical examination undertaken to determine whether a claimant can perform the pre-injury job.”
  • explaining that "an IRE is quite different in scope from an independent medical examination undertaken to determine whether a claimant can perform the pre-injury job.”
  • “[A]n IRE is quite different in scope from an independent medical examination undertaken to determine whether a claimant can perform the pre-injury job.”

Written by the judges who cited it.

The opinion

DISSENTING OPINION BY

President Judge COLINS.

I respectfully dissent to this thoughtful majority opinion. I disagree with the majority’s conclusion that termination petitions and Independent Rating Evaluation (IRE) proceedings may operate in complete conjunction with each other even though they are distinct and entirely unrelated processes. I believe that the filing of Employer’s termination petition before requesting an IRE requires a different result.

Although the majority correctly quotes this Court’s reasoning in Schachter v. Workers’ Compensation Appeal Board (SPS Technologies), 910 A.2d 742 (Pa.Cmwlth.2006) to the effect that IRE remedies are supplemental to those other remedies an employer may pursue when it believes that a disability is not work-related, I believe that the holding in Schachter should be limited to situations in which an employer files a termination petition following the initiation of IRE proceedings.

As the majority notes, when the IRE examination indicates that a claimant has an impairment of less than fifty percent, employers or insurers are obligated to pay claimants partial benefits rather than total benefits. Following such an examination, unless earning power is “otherwise adjudicated,” the employer or insurer may not change the amount of compensation. Section 306(a.2)(3), 77 P.S. § 511.2(3). I agree that a termination proceeding is one that could result in an adjudication, thus providing an employer with a means of changing compensation. I also agree that, although this case is different from Schachter , the IRE proceedings provided Employer with an intermediate recourse, permitted by statute, that enabled Employer to obtain the interim relief available in the IRE process, while still contesting Claimant’s disability through its termination petition.

However, in such cases, I believe that the Board, while correct in concluding that the IRE procedure provides an alternative means to obtain a mitigation of liability until such time, and if, a workers’ compensation judge renders a decision on a termination request, I would conclude that in such cases where an employer files a termination petition and before resolution of that petition obtains an IRE, the ultimate decision of a workers’ compensation judge must reflect the IRE such that the termination cannot be held to be effective before the employer files a Notice of Change based upon a favorable IRE.

Because the WCJ determined that the date upon which Claimant had recovered was a date before the IRE was conducted, I would vacate and remand the Board’s order and direct the Board to remand the matter to the WCJ to designate the date of Claimant’s recovery and the corresponding date of termination as the date of the IRE, November 11, 2003.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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